TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00591-CR

Harvey Cyphers, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. 9014132, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING

Appellant Harvey Cyphers appeals from his conviction for the unlawful possession of a 

firearm by a felon. See Tex. Pen. Code Ann. ' 46.04 (West Supp. 2002). Appellant=s punishment 

assessed by the jury is imprisonment for five years and seven months and a fine of $5,000. On appeal, 

appellant complains that the evidence is factually insufficient and that the trial court erred in failing 

to quash Count II of the indictment. In addition, appellant complains that he did not have effective 

assistance of trial counsel. We will affirm the judgment.

Background

On January 19, 2001, authorized by an arrest warrant, City of Austin police officers 

went to a house at 6808 Montana Street to arrest appellant for violating the conditions of his parole. 

The officers found appellant in bed and arrested him. While on the premises, officers saw in open 

view marijuana and cocaine. With this information, the officers obtained a search warrant. In 

searching the house, the officers found a .243 caliber bolt action Remington Model 700 rifle under the 
2

bed in which appellant had been lying when he was arrested. Appellant was indicted for 

intentionally and knowingly possessing a firearm after he had been convicted of a felony and before 

the fifth anniversary of his release from parole. See Tex. Pen. Code Ann. ' 46.04 (West Supp. 2002).

Factual Sufficiency

In his fourth point of error, appellant asserts that the evidence is factually insufficient 

to prove he possessed a firearm.1 Appellant has not challenged the legal sufficiency of the evidence. 

Therefore, appellant concedes the legal sufficiency of the evidence to support every element of the 

charged offense, including his possession of the firearm.2

 

1

 Appellant does not claim that the evidence is insufficient to prove his prior felony 

conviction or that less than five years had elapsed since his release on parole after his conviction of 

the predicate offense.

2

 A factual sufficiency review begins with the presumption that the evidence supporting 

the verdict was legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); 

Roberson v. State, 16 S.W.3d 156, 171 (Tex. App.CAustin 2000, pet. ref'd); Stone v. State, 823 S.W.2d 

375, 381 (Tex. App.CAustin 1992, pet. ref=d untimely filed).).

In a factual sufficiency review, we are required to give deference to the jury=s verdict 

and examine all of the evidence impartially, setting aside the jury verdict Aonly if it is so contrary to 

the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 

S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 
3

1996). The complete and correct standard a reviewing court must follow to conduct a Clewis factual 

sufficiency review is to determine whether a neutral review of all of the evidence, both for and against 

the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in 

the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed 

by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The standard or review 

is the same whether the evidence is direct, circumstantial, or both. See Kutzner v. State, 994 S.W.2d 

180, 184 (Tex. Crim. App. 1999); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994).

Specifically, appellant argues that the State did not prove that he was in exclusive 

possession of the house where the firearm was found, and that additional facts and circumstances were 

insufficient to show that he knew the firearm was in the house or that he exercised control over the 

firearm. Therefore, appellant contends that the evidence is factually insufficient to show he possessed 

the firearm found under his bed.3

When arrested, appellant was in bed with a female acquaintance. Appellant=s female 

acquaintance, who did not live in the house, was allowed to leave the premises. The only other occupant of 

the house was appellant=s uncle, Robert Thorne, who was asleep in another bedroom. Witnesses testified 

that Thorne was an elderly man whose age they estimated was eighty or eighty-two years.

 

3

 APossession@ means actual care, custody, control, or management. Tex. Pen. Code Ann. '

1.07(a)(39) (West 1994). See Young v. State, 752 S.W.2d 137, 141 (Tex. App.CDallas 1988, pet. 

ref=d).
4

The rifle found under the bed was within reach of someone on the bed. The rifle was clean, 

well cared for, and in a case. There were two live cartridges in the rifle=s magazine. An ammunition box for 

.243 caliber rifle cartridges was on top of a dresser in the bedroom. Just outside the door, on the driveway, 

officers found three .243 caliber spent cartridge casings. This evidence might indicate that the rifle had been 

fired recently.

There were two vehicles on the premises; both vehicles were registered in appellant=s name. 

 A wrought iron gate in the fence surrounding the house displayed appellant=s initials, AHLC.@ Appellant=s 

father owned the house where appellant was arrested. Appellant=s father and appellant=s uncle, Arthur 

Cyphers, both testified that appellant lived in the house where he was arrested. The address on appellant=s 

driver=s license was 6808 Montana Street. Envelopes addressed to appellant at 6808 Montana Street were 

found in the house; these envelopes included those from two banks and the Travis County Probation Office. 

 A State of Texas motor boat certificate in appellant=s name showing his address as 6808 Montana Street 

was also found in the house. Appellant conducted an automobile window tinting business on the premises. 

Business cards for that business were found in the house.

Appellant rested his defense without offering any evidence. There was no direct evidence 

that anyone other than appellant owned or had control over the rifle. The evidence, direct and 

circumstantial, is sufficient to support the jury=s verdict and the implicit finding that appellant lived in the 

house, knew the rifle was under his bed, and exercised control over the rifle. 

After examining all of the evidence impartially and giving deference to the jury=s verdict, we 

conclude that the jury=s verdict is not so contrary to the overwhelming weight of the evidence as to be 
5

clearly wrong and unjust. Moreover, from our neutral review of all of the evidence both for and against the 

jury=s verdict, we find it fails to show that the proof of appellant=s guilt is so obviously weak as to undermine 

confidence in the jury=s determination, or that the proof of guilt, although adequate if taken alone, is greatly 

outweighed by contrary proof. The evidence is factually sufficient to support the jury=s verdict. Appellant=s 

fourth point of error is overruled.

Motion to Quash

In his third point of error, appellant asserts that the trial court erred in denying his motion to 

quash Count II of the indictment. In the two-count indictment, the State used two separate felony 

convictions as predicate offenses for its allegations that appellant was a felon who possessed a firearm.

It was alleged, that

Harvey Cyphers, on or about the 19th day of January A.D. 2001, and before the 

presentment of this indictment, in the County of Travis, and State of Texas, did then and 

there intentionally and knowingly possess a firearm, to-wit: Remington Model 700 Rifle, 

and prior to the commission of said act, Harvey Cyphers on the 19th day of May 1993, in 

cause number 93-0683 in the 331st Judicial District Court of Travis County, Texas, had 

been convicted of the felony offense of Possession of a Controlled Substance, and the 

possession of the firearm as alleged above was after conviction for said felony and before 

the fifth anniversary of the release of Harvey Cyphers from parole,

Count II

And the Grand Jury further presents that Harvey Cyphers, on or about the 19th day of 

January A.D. 2001, and before the presentment of this indictment, in the County of Travis, 

and State of Texas, did then and there intentionally and knowingly possess a firearm, to-wit: 

Remington Rifle, and prior to the commission of said act, Harvey Cyphers on the 4th day of 

September 1992, in cause number 92-3626 in the 331st Judicial District Court of Travis 

County, Texas, had been convicted of a felony offense and the possession of the firearm as 
6

alleged above was after conviction for said felony and before the fifth anniversary of the 

release of Harvey Cyphers from supervision under community supervision.

In his motion to quash Count II, appellant urged that his conviction in cause number 92-

3626 could not be used as the predicate offense for the offense alleged in Count II. In cause number 92-

3626, appellant was granted community supervision. In the order discharging appellant from community 

supervision, the court ordered the judgment of conviction set aside, dismissed the indictment, and released 

appellant from all penalties and disabilities resulting from his conviction in cause number 92-3626.4

 

4

 In entering this order discharging appellant from community supervision and from all 

penalties and disabilities resulting from that conviction, the trial court exercised its discretionary 

authority pursuant to the provisions of the Code of Criminal Procedure, which provides:

Reduction or Termination of Community Supervision
7

 

Sec. 20. (a) At any time, after the defendant has satisfactorily completed 

one-third of the original community supervision period or two years of community 

supervision, whichever is less, the period of community supervision may be 

reduced or terminated by the judge. Upon the satisfactory fulfillment of the 

conditions of community supervision, and the expiration of the period of

community supervision, the judge, by order duly entered, shall amend or modify 

the original sentence imposed, if necessary, to conform to the community 

supervision period and shall discharge the defendant. If the judge discharges the 

defendant under this section, the judge may set aside the verdict or permit the 

defendant to withdraw his plea, and shall dismiss the accusation, complaint, 

information or indictment against the defendant, who shall thereafter be released 

from all penalties and disabilities resulting from the offense or crime of which he 

has been convicted or to which he has pleaded guilty.

Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2002).
8

Appellant relies on Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). Cuellar

was decided after the trial of this case and after the trial court=s refusal to quash Count II. The court in 

Cuellar held that a conviction could not be used as a predicate conviction in prosecuting a felon for 

possession of a firearm, when the felon had received community supervision and was thereafter discharged 

pursuant to the discretionary provisions of article 42.12, section 20. In view of the Cuellar decision, the 

denial of appellant=s motion to quash Count II constituted error.

We must decide whether the failure to quash Count II of the indictment was error that 

affected the substantial rights of appellant. Errors that do not affect an appellant=s substantial rights must be 

disregarded. Tex R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and 

injurious effect or influence in determining the jury=s verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. 

Crim. App. 2000) (citing King, 953 S.W.2d at 271). A criminal conviction should not be overturned for 

non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that 

the error did not influence the jury, or had but slight effect. Id. (citing Johnson, 967 S.W.2d at 417). In 

assessing the likelihood that the jury=s decision was adversely affected by the error, the appellate court 

should consider everything in the record, including any testimony or physical evidence admitted for the jury=s 

consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it 

might be considered in connection with other evidence in this case. The reviewing court might also consider 

the jury instruction given by the trial judge, the State=s theory and any defensive theories, closing arguments 

and even voir dire, if material to appellant=s claim. Id. (citing Llamas v. State, 12 S.W.2d 469, 471 (Tex. 

Crim. App. 2000)).
9

In Cuellar, the predicate conviction used was a conviction in which Cuellar had been 

discharged from community supervision and released from all penalties and disabilities pursuant to the 

discretionary provisions of article 42.12, section 20. See Cuellar, 70 S.W.3d at 820. In this case, 

appellant=s conviction is based on the first count of the indictment, not on Count II. The predicate 

conviction used in the first count does not have the same defect as the predicate conviction used in Count II 

or that used in Cuellar.

When the indictment was read to the jury, Count II was included. However, at the guilt 

innocence phase of the trial, there was no evidence to support the allegations of Count II, and when the 

State closed, and before the jury was charged, the trial court granted appellant=s motion for a directed 

verdict on Count II.

After examining the entire record, we conclude that there is little likelihood that the error had 

a substantial and injurious effect on the jury=s verdict; from our review of the record, we have fair assurance 

that the error did not influence the jury or had but slight effect. Appellant=s third point of error is overruled.

Assistance of Counsel

In his first two points of error, appellant insists that he did not have effective assistance of 

trial counsel, because counsel failed to seek the exclusion of unlawfully obtained evidence. To show 

ineffective assistance of counsel, appellant must show that: (1) counsel=s performance was deficient, in that 

counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient 

performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland 

v. Washington, 466 U.S. 668, 687 (1984); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 
10

2000); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 

115, 118 (Tex. App.CAustin 1994, pet. ref=d).

Appellant concedes that the warrant issued for his arrest as a parole violator was valid. 

However, in his first point of error, he faults his trial counsel for failing to challenge the Aillegal execution@ of 

the arrest warrant. Appellant argues that in executing the arrest warrant, the officers gained the information 

used to obtain the search warrant which led to the finding and seizure of the rifle. Appellant contends that 

no facts in the record support a reasonable belief that Aappellant was in the residence prior to entry into the 

residence. Therefore, the law would have required suppression at pre-trial or at trial of the firearm which 

was discovered while the officers executed the search warrant.@ We must first determine whether the 

execution of the arrest warrant was done in an unlawful manner, before we can determine whether trial 

counsel=s performance was deficient. A[A]n arrest warrant founded on probable cause implicitly carries 

with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the 

suspect is within.@ Payton v. New York, 445 U.S. 573, 603 (1980); see also Morgan v. State, 963 

S.W.2d 201, 203 (Tex. App.CHouston [14th Dist.] 1998, no pet.).

An officer executing an arrest warrant may enter a residence if he reasonably believes the 

premises entered is the residence of the person named in the warrant and that that person is in the residence 

at the time the arrest warrant is executed. Morgan, 963 S.W.2d at 204; Reno v. State, 882 S.W.2d 106, 

108 (Tex. App.CFort Worth 1994, pet. ref=d). In executing an arrest warrant, it shall always be made 

known to the accused under what authority the arrest is made. See Tex. Code Crim. Proc. Ann. art. 15.26 

(West 1977). In case of a felony, the officer may break down the door of any house for the purpose of 
11

making an arrest if the officer is refused admittance after giving notice of his authority and purpose. Id. art. 

15.25.

Before going to 6808 Montana Street, the officers had evidence that appellant lived there. 

The officer=s knowledge that appellant lived at 6808 Montana Street came from a police database, prior 

offense reports, and appellant=s driver=s license records. Also, ten days before they executed the parole 

violation arrest warrant, there were complaints that appellant was selling methamphetamine out of his house. 

 After a surveillance of the house, officers stopped appellant=s vehicle and arrested him for possession of a 

controlled substance. At that time, appellant told the arresting officers he lived at 6808 Montana Street. 

When the officers approached the house to execute the arrest warrant, they saw two vehicles on the 

premises that they knew were registered in appellant=s name. 

The evidence that the officers had when they executed the arrest warrant was sufficient to 

support a reasonable belief that appellant lived at 6808 Montana Street and that he was in the house at that 

time. Based on the law and the record, execution of the arrest warrant was lawful. Trial counsel had no 

reason to challenge the manner in which the arrest warrant was executed. Appellant has failed to 

demonstrate that trial counsel=s performance was deficient. Appellant=s first point of error is overruled.

In his second point of error, appellant claims that his trial counsel was ineffective for failing 

to seek exclusion from evidence the firearm he was charged with possessing and the evidence of its seizure. 

 Appellant contends that police officers unlawfully obtained this evidence by violating the criminal trespass 

law.
12

The Texas criminal trespass law provides in pertinent part that a person commits a criminal 

trespass if he knowingly enters or remains on property of another without the other=s effective consent and 

he had notice that his entry was forbidden by fencing or other enclosure obviously designed to exclude 

intruders. See Tex. Pen. Code Ann. ' 30.05(a)(1)(b)(2)(B) (West Supp. 2002). Appellant argues that the 

fence with a locked gate, that surrounded the house in which the firearm was seized and in which appellant 

was arrested, gave officers notice that their entry was forbidden. Appellant contends that the law would 

have required suppression of the firearm and evidence about its seizure if trial counsel had properly raised 

the issue.

Appellant cites and relies on article 38.23 of the Code of Criminal Procedure, which in 

pertinent part provides:

Art. 38.23. Evidence not to be used

(a) No evidence obtained by an officer or other person in violation of any provisions of 

the Constitution or laws of the State of Texas, or of the Constitution or laws of the 

United States of America, shall be admitted in evidence against the accused on the 

trial of any criminal case.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence 

was obtained by a law enforcement officer acting in objective good faith reliance upon 

a warrant issued by a neutral magistrate based on probable cause.

Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 2002).

A police officer has the duty to execute all lawful process issued to the officer by any 

magistrate or court. See Tex. Code Crim. Proc. Ann. art. 2.13(b)(2) (West Supp. 2002). A police 
13

officer=s actions are justified if the officer reasonably believes his conduct is required by law in the 

execution of legal process. See Tex Pen. Code Ann. ' 9.21 (West 1994).

Here, the officers came to the house where they reasonably believed appellant was 

living and present. The officers= purpose was to execute an arrest warrant issued for appellant=s arrest 

as a parole violator. The house was surrounded by a fence with a locked gate. The officers 

announced their presence and purpose for being there. When they got no response, they called their 

supervisor, and he told the officers to cut the lock on the gate. They did so, entered the yard, and 

gained entrance to the house where they executed the warrant arresting the appellant. The officers 

were justified in cutting the lock and entering the yard if they reasonably believed they were 

authorized to do so by law to execute the warrant and arrest appellant.

Appellant has failed to demonstrate that trial counsel=s performance was deficient for 

failing to challenge the manner in which the officers entered appellant=s property. Appellant=s second 

point of error is overruled.

The judgment is affirmed.

__________________________________________

Carl E. F. Dally, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Dally*

Affirmed

Filed: July 26, 2002
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Do Not Publish

* Before Carl E. F. Dally, Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. 

See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).