NUMBER 12-15-00007-CR 

IN THE TWELFTH DISTRICT COURT OF APPEALS 

TYLER, TEXAS 

CHRISTOPHER EARL THURMAN, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

From the 7th District Court of Smith County, Texas 

Trial Cause Number 007-1224-14 

STATE’S BRIEF 

ORAL ARGUMENT NOT REQUESTED

D. MATT BINGHAM 

Criminal District Attorney 

Smith County, Texas 

AARON REDIKER 

Assistant District Attorney 

State Bar of Texas Number 24046692 

Smith County Courthouse, 4th Floor 

Tyler, Texas 75702 

Phone: (903) 590-1720 

Fax: (903) 590-1719 

Email: arediker@smith-county.com

 

ACCEPTED

12-15-00007-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

8/3/2015 11:04:16 AM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/3/2015 11:04:16 AM CATHY S. LUSK Clerk
1 

TABLE OF CONTENTS

Index of Authorities .................................................................................................. 2

Statement of Facts .................................................................................................... 3

Summary of Argument ............................................................................................. 4

I.ISSUE ONE: The logical force of the evidence linking appellant to the revolver found 

in his motel room was sufficient to show actual care, custody, control, or management 

of the firearm. .......................................................................................................... 5

Standard of Review ................................................................................................... 5

Argument ................................................................................................................. 6

II.ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial court’s 

alleged failure to consider the full range of punishment, and even if he had, deferred 

adjudication community supervision was unavailable to him. .................................. 10

Argument ............................................................................................................... 10

Certificate of Compliance ....................................................................................... 12

Certificate of Service .............................................................................................. 13

 
2 

INDEX OF AUTHORITIES

Texas Cases

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ........................................ 5 

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) .......................................... 7 

Hawkins v. State, 89 S.W.3d 674 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) . 6 

Hernandez v. State, 538 S.W.2d 127 (Tex. Crim. App. 1976) ................................... 7 

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 6 

James v. State, 264 S.W.3d 215 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) ... 6 

Jones v. State, 338 S.W.3d 725 (Tex. App.—Houston [1st Dist.] 2011) ................ 7, 9 

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................... 5 

Reed v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983) .......................................... 11 

Stout v. State, 426 S.W.3d 214 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........ 6 

Sutton v. State, 328 S.W.3d 73 (Tex. App.—Fort Worth 2010, no pet.) .................... 8 

Teixeira v. State, 89 S.W.3d 190 (Tex. App.—Texarkana 2002, pet. ref’d) ............. 10 

Villegas v. State, 871 S.W.2d 894 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d) .. 9 

Washington v. State, 71 S.W.3d 498 (Tex. App.—Tyler 2002, no pet.) ................... 10 

Willis v. State, 192 S.W.3d 585 (Tex. App.–Tyler 2006, pet. ref’d) (mem. op.) ........ 9 

Texas Statutes

Tex. Code Crim. Proc. art. 42.12, § 5 ..................................................................... 11 

Tex. Penal Code Ann. § 1.07 .................................................................................... 6 

Tex. Penal Code Ann. § 6.01 .................................................................................... 6 

Texas Rules

Tex. R. App. P. 33.1 ............................................................................................... 10 

Federal Cases

Jackson v. Virginia, 443 U.S. 307 (1979).................................................................. 5 

 
3 

NUMBER 12-15-00007-CR 

IN THE TWELFTH DISTRICT COURT OF APPEALS 

TYLER, TEXAS 

CHRISTOPHER EARL THURMAN, 

Appellant 

v. 

THE STATE OF TEXAS, 

Appellee 

From the 7th District Court of Smith County, Texas 

Trial Cause Number 007-1224-14 

STATE’S BRIEF 

TO THE HONORABLE COURT OF APPEALS: 

Comes now the State of Texas, by and through the undersigned Assistant Criminal 

District Attorney, respectfully requesting that this Court overrule appellant’s issues and 

affirm the judgment of the trial court in the above-captioned cause. 

STATEMENT OF FACTS

 Appellant has stated the essential nature of the proceedings and the evidence 

presented at trial (Appellant's Br. 3-5). In the interest of judicial economy, any other 
4 

facts not mentioned therein that may be relevant to the disposition of appellant's issues 

will be discussed in the State's arguments in response. 

SUMMARY OF ARGUMENT

 In a bench trial for the offense of unlawful possession of a firearm by a felon, the 

evidence showed the following links between appellant and the revolver found in his 

motel room: appellant’s presence at the time of the search, the firearm’s proximity 

and accessibility to appellant, his right to control and possess the location where the 

firearm was found, the presence of other contraband, a special connection or 

relationship between appellant and the firearm, and that the firearm was found in an 

enclosed space within his room. Viewing the evidence in the light most favorable to 

the verdict, the logical force from these links was sufficient for a rational trier of fact 

to have found beyond a reasonable doubt that appellant exercised care, custody, control, 

or management over the revolver. While appellant also argues that the trial court 

refused to consider the entire range of punishment, he failed to preserve any error for 

review by not raising a timely objection at trial. Even if appellant had raised a timely 

objection, the trial court made its finding of guilt following a bench trial on appellant’s 

plea of “not guilty”, and appellant was therefore ineligible to receive deferred 

adjudication community supervision. 
5 

I. ISSUE ONE: The logical force of the evidence linking appellant to the 

revolver found in his motel room was sufficient to show actual care, custody, 

control, or management of the firearm. 

STANDARD OF REVIEW

 Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443 

U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt." When conducting a legal sufficiency review, a reviewing court must ask 

whether any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt, and not whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 

(Tex. Crim. App. 2009). The same standard applies equally to circumstantial and 

direct evidence. Id. When examining the evidence for legal sufficiency, a reviewing 

court’s role is not to become a “thirteenth juror”, and it may not “re-evaluate the weight 

and credibility of the record evidence” and thereby substitute its judgment for that of 

the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Thus, “[t]he 

reviewing court must give deference to the responsibility of the trier of fact to fairly 

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences 
6 

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007) (citing Jackson, 443 U.S. at 318-19) (internal quotation marks omitted).

ARGUMENT

 In his first issue, appellant argues that the evidence linking him to the firearm 

discovered during a consensual search of his motel room was legally insufficient to 

support his conviction for unlawful possession of a firearm by a felon (Appellant’s Br. 

7-13). “’Possession’ means actual care, custody, control, or management.” Tex. Penal 

Code Ann. § 1.07(39) (West 2014). To constitute an offense, possession of the 

prohibited item must be voluntary: “the possessor knowingly obtains or receives the 

thing possessed or is aware of his control of the thing for a sufficient time to permit 

him to terminate his control.” Tex. Penal Code Ann. § 6.01(a), (b) (West 2014). 

Because the firearm at issue was not found on appellant or in his exclusive possession, 

the State was required to prove possession by affirmatively linking the firearm to the 

appellant. Stout v. State, 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012, 

no pet.). “The State may establish possession by proving an ‘affirmative link,’ which 

demonstrates that the defendant was conscious of his connection with the weapon and 

knew what it was.” James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st 

Dist.] 2008, pet. ref’d) (citing Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). A nonexclusive list of factors that may establish 
7 

a link between a defendant and a firearm found inside a residence that was not in his 

exclusive control includes whether: 

(1) the defendant was present at the time of the search; (2) the defendant was 

the owner of or had the right to control the location where the firearm was 

found; (3) the firearm was in plain view; (4) the defendant was in close 

proximity to and had access to the firearm; (5) firearms or other contraband 

was found on the defendant; (6) the defendant attempted to flee; (7) conduct by 

the defendant indicated a consciousness of guilt, including extreme nervousness 

or furtive gestures; (8) the defendant had a special connection or relationship to 

the firearm; (9) the place where the firearm was found was enclosed; and (10) 

affirmative statements connected the defendant to the firearm, including 

incriminating statements made by the defendant when arrested. 

 

Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 

364 S.W.3d 854 (Tex. Crim. App. 2012). The number of links is not dispositive, “but 

rather the logical force of all of the evidence, direct and circumstantial.” Evans v. State, 

202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Furthermore, the absence of any of 

the links listed above “is not evidence of appellant's innocence to be weighed against 

evidence tending to connect appellant to the [contraband].” Hernandez v. State, 538 

S.W.2d 127, 131 (Tex. Crim. App. 1976). 

 Here, the evidence established at least six links between appellant and the firearm: 

his presence at the time of the search, the proximity and accessibility of the firearm, 

appellant’s right to control the location where the weapon was found, the presence of 

other contraband in the motel room, a special connection or relationship between 

appellant and the firearm, and that the firearm was found in an enclosed space. See 
8 

Jones, 338 S.W.3d at 742. Appellant was present at the time of the search at 

approximately eight o’clock in the evening at the Town House Motel in Tyler (V Rep.’s 

R. at 59, 62). Moments before knocking on appellant’s door, Tyler Police officers 

observed Brittany Stone, a theft suspect, enter appellant’s room at the motel (Id. at 60-

62). Appellant answered the door naked and told the officers that he had been sleeping 

(Id. at 62). He stated that the room was his and gave them permission to enter and 

arrest Ms. Stone (Id.). Appellant subsequently gave the officers consent to search his 

motel room (Id. at 64, 66), and a .38 caliber revolver was discovered between the 

mattress and box-spring of the bed where appellant had been sleeping (Id. at 73, 95, 

97; State’s Exs. 22, 26). In addition to appellant’s presence at the scene during the 

search and his close proximity to the weapon immediately before officers knocked on 

his door, the motel manager later confirmed that appellant had rented the room a 

couple of days before the search and “had been in the whole time.” (V Rep.’s R. at 

104-05). Appellant thus had the right to control and possess the location where the 

firearm was located. See Sutton v. State, 328 S.W.3d 73, 77 (Tex. App.—Fort Worth 

2010, no pet.) (“As the State points out, the jury could have rationally inferred from 

Sutton's statement of ownership or responsibility over the house that she could exercise 

care, custody, and control over the house's contents, including the gun.”). 
9 

 In his brief, appellant concedes that the revolver was found in an enclosed space 

accessible to him—underneath the mattress of the only bed in the motel room 

(Appellant’s Br. 12). Further, appellant had a special connection or relationship with 

the firearm, as several rounds of .38 caliber ammunition were found in his nightstand 

near the side of the bed where the revolver was located (V Rep.’s R. at 67,73, 95, 97-

98, 108). The ammunition was in a partially opened lockbox in the nightstand drawer, 

along with a clear plastic baggie containing methamphetamine and a digital scale (Id. 

at 67, 73, 95, 97-98, 107-08. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–

Tyler 2006, pet. ref’d) (mem. op.) (“whether the accused possessed other contraband 

when arrested” can serve as an affirmative link). In fact, appellant had directed police 

to that particular nightstand when asked for the keys to his vehicle parked outside (V 

Rep.’s R. at 66-67, 69, 97). The green Kia sedan was registered to appellant and his 

wife, and officers discovered a safe containing more .38 caliber ammunition, 

appellant’s employee identification card from Goodwill Industries, and a Verizon bill 

addressed to Sondra Thurman (Id. at 61, 75, 98-100, 113). See Jones, 338 S.W.3d at 

742 (links showing special connection or relationship where one rifle found in room 

with mail addressed to defendant and another gun found near his wallet and 

prescription medication); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.–Houston 

[1st Dist.] 1994, pet. ref’d) (contraband’s location in relationship to the defendant's 
10 

personal belongings can serve as a link). Viewing the evidence in the light most 

favorable to the verdict, the logical force from these links was sufficient for a rational 

trier of fact to have found beyond a reasonable doubt that appellant exercised care, 

custody, control, or management over the firearm. Therefore, appellant’s first issue is 

without merit and should be overruled. 

II. ISSUES TWO AND THREE: Appellant failed to preserve any error in the trial 

court’s alleged failure to consider the full range of punishment, and even if he 

had, deferred adjudication community supervision was unavailable to him. 

ARGUMENT

 In his second and third alleged issues, appellant claims that the trial court erred by 

finding him guilty following a bench trial on guilt/innocence, but before hearing 

evidence on punishment, without considering the option of deferred adjudication 

community supervision (Appellant’s Br. 14-17). As a preliminary matter, appellant 

did not object to the trial court’s finding of guilt at the conclusion of the guilt/innocence 

phase of trial (V Rep.’s R. at 130). A complaint that the trial court refused to consider 

the entire range of punishment for an offense or refused to consider the evidence and 

imposed a predetermined punishment is not preserved for review unless a timely 

objection is raised at trial. Tex. R. App. P. 33.1(a); Teixeira v. State, 89 S.W.3d 190, 

192 (Tex. App.—Texarkana 2002, pet. ref’d); Washington v. State, 71 S.W.3d 498, 

499-500 (Tex. App.—Tyler 2002, no pet.). 
11 

 Even had appellant preserved the alleged error, he was not eligible for deferred 

adjudication community supervision. “[W]hen in the judge's opinion the best interest 

of society and the defendant will be served, the judge may, after receiving a plea of 

guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates 

the defendant's guilt, defer further proceedings without entering an adjudication of 

guilt, and place the defendant on community supervision.” Tex. Code Crim. Proc. art. 

42.12, § 5(a) (West 2014). “The power to defer adjudication rests solely within the 

discretion of the trial court. The availability of the option is limited to defendants who 

plead guilty or nolo contendere.” Reed v. State, 644 S.W.2d 479, 483 (Tex. Crim. App. 

1983). Appellant, with his counsel present, entered a plea of “not guilty” to the offense 

as charged in the indictment (V Rep.’s R. at 48), and a bench trial on the issues of 

guilt/innocence and punishment followed. As appellant was therefore not eligible to 

receive deferred adjudication community supervision from the trial court, his second 

and third alleged issues are without merit and should be overruled. 
12 

PRAYER

 WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the 

Court overrule appellant’s alleged issues and affirm the judgment of the 7th District 

Court of Smith County, Texas, in the above-captioned cause. 

 Respectfully submitted, 

 D. MATT BINGHAM 

 Criminal District Attorney 

 Smith County, Texas 

 /s/ Aaron Rediker 

 Aaron Rediker 

 Assistant District Attorney 

 SBOT #: 24046692 

 100 North Broadway, 4th Floor 

 Tyler, Texas 75702 

 Office: (903) 590-1720 

 Fax: (903) 590-1719 (fax) 

 arediker@smith-county.com

CERTIFICATE OF COMPLIANCE

 Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney 

certifies that the word count for this document is 2,073 words as calculated by 

Microsoft Word 2013. 

 /s/ Aaron Rediker 

 Aaron Rediker 
13 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 31st day of July 2015, the State’s Brief 

in the above-numbered cause has been electronically filed, and a legible copy of the 

State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant, at 

jhugglerlaw@sbcglobal.net. 

 

 /s/ Aaron Rediker 

 Aaron Rediker