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No. 03-14-00673-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

CHRISTOPHER ANTHONY GEORGE 

VS. 

THE STATE OF TEXAS 

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ON APPEAL FROM THE 264th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 72,519 

****** 

STATE’S BRIEF

****** 

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-14-00673-CR

4142604

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/13/2015 11:33:02 AM

JEFFREY D. KYLE

CLERK
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TABLE OF CONTENTS

ITEM PAGE

Index of Authorities ............................................................................ 3

Statement Regarding Oral Argument ................................................ 4

Statement of the Case ......................................................................... 4

Statement of Facts .............................................................................. 5

Summary of State’s Argument ........................................................... 7

Argument and Authorities ................................................................. 7

Issue on Appeal ......................................................................... 7

SUFFICIENT EVIDENCE TO PROVE APPELLANT 

IN POSSESSION OF FIREARM BEFORE 5TH

ANNIVERSARY OF RELEASE FROM

INCARCERATION OR PAROLE?

Standard of Review ................................................................... 7

Application and Analysis .......................................................... 8

Prayer ................................................................................................... 13

Certificate of Compliance with Rule 9 ................................................ 14

Certificate of Service ............................................................................ 14
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INDEX OF AUTHORITIES

CASES PAGE

Brooks v. State, 323 S.W. 3d 893 (Tx. Cr. App. 2011) ....................... 7

Clayton v. State, 235 S.W.3d 772 (Tx. Cr. App. 2007) ...................... 8

Fagan v. State, 362 S.W.3d 796 ........................................................ 11

(Tx. App. Texarkana 6th Dist. 2012 no pet.)

Gill v. State, 57 S.W.3d 540 ................................................................ 10

(Tx. App. Waco 10th Dist. 2001 no pet.)

Saldana v. State, 418 S.W.3d 722 ...................................................... 11

(Tx. App. Amarillo 7th Dist. 2013 no pet.)

Tawater v. State, No. 06-14-00075-CR, ............................................ 12

2014 Tex. App. LEXIS 13176, (Tx. App. Texarkana 

6th Dist. 2014 no pet.), not designated for publication.

OTHER

Texas Penal Code

Section 46.04(a)(1) .................................................................. 8
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STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Christopher Anthony George, was charged by 

indictment with the offense of Unlawful Possession of a Firearm by a 

Felon. (CR-5). He was tried before a jury upon his plea of “not guilty” 

(RR6-6).

The Appellant was found guilty by the jury (CR-52; RR7-94). The 

Appellant then entered a plea of true to the allegations in the second 

paragraph of the indictment alleging another prior felony conviction for 

the offense of Burglary of a Habitation for the purpose of enhancement. 

(CR-5; RR7-95). 

The trial court considered the issue as to punishment, without a 

jury. The court sentenced the Appellant to 18 years in the Texas 

Department of Corrections Institutional Division. (CR-53; RR8-11). 

The Appellant gave timely notice of appeal (CR-58) and the trial 

court certified his right to do so. (CR-47).
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STATEMENT OF FACTS

On appeal the Appellant raises a single issue as to the sufficiency 

of the evidence to prove that he was found in possession of the firearm 

within 5 years of the date of his release from confinement or parole 

following his felony conviction. For that reason the State would offer 

only a very brief summary of the evidence as to the possession of the 

firearm.

On February 10, 2014, the Appellant was arrested by the police 

alone in a vehicle that was stopped moments after shots had been fired 

at a home from that vehicle. (RR6-27-33, 46). He had no valid driver’s 

license. (RR6-53). The officer observed the Appellant partially open the 

driver’s door and make furtive movements under the seat. (RR6-46, 47). 

The officer observed a spent shell casing on the driver’s side front 

floorboard of the car. (RR6-51). As the officer was patting him down, 

the Appellant told him that he could not have a weapon because he was 

on parole. (RR6-51). The officer did not locate a firearm in the vehicle. 

(RR6-52). The Appellant was arrested and his car was impounded. 

(RR6-53, 54).
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Subsequently a loaded magazine (RR6-88, 89) and a .40 caliber 

handgun were found in the vehicle by the tow truck operator. (RR6-90). 

Bullet fragments found at the house that had been fired at were 

consistent with a .40 caliber bullet and the shell casing found in the car 

had been fired by the weapon that was recovered. (RR6-0, 21, 25).

The indictment alleged that the Appellant had possessed the 

firearm before the fifth anniversary of his release from confinement or 

parole with respect to his conviction on January 29, 2009 for the offense 

of Robbery in Cause No. 63,584 in the 264th District Court of Bell County, 

Texas. (CR-5). In order to prove this allegation the State offered a 

certified copy of the Judgment of Conviction in Cause No. 63,584 for the 

offense of Robbery entered on January 29, 2010 and wherein the 

Appellant was sentenced to three years in prison as State’s Exhibit 1. 

(RR8). After testimony by fingerprint expert Karl Ortiz that the 

fingerprints taken in that conviction were those of the Appellant, the 

exhibit was admitted without objection. (RR6-24, 24).

Also admitted without objection (RR6-24) was State’s Exhibit 2, a 

certified copy of records showing that the Appellant was transferred to 

the Texas Department of Corrections in Cause Number 63,584 on 

February 18, 2009. (CR8).
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SUMMARY OF STATE’S ARGUMENT

The evidence was sufficient to prove beyond a reasonable doubt 

that the Appellant possessed the firearm before the fifth anniversary of 

his release from incarceration or from parole as alleged in the 

indictment in that it clearly showed that he was incarcerated in the 

State prison for that offense less than five years from the date of the 

offense and he admitted that he was on parole and could not possess a 

firearm when he was arrested.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

Was the evidence sufficient to prove beyond a reasonable doubt 

that the Appellant possessed the firearm before the fifth anniversary of 

his conviction or parole as alleged in the indictment?

Standard of Review

In reviewing the sufficiency of the evidence the court must 

consider all of the evidence in the light most favorable to the verdict and 

determine whether, based upon all the evidence and reasonable 

inferences therefrom, a rational jury could have found the essential 

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 
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S.W.3d 893, 912 (Tx.Cr.App. 2011); Clayton v. State, 235 S.W.3d 772, 778 

(Tx.Cr.App. 2007).

Application and Analysis

A person who has been convicted of a felony commits an offense if 

he possesses a firearm after conviction and before the fifth anniversary 

of the person’s release from confinement following conviction for a 

felony or the person’s release from supervision under community 

supervision, parole or mandatory supervision. Section 46.04(a)(1), 

Texas Penal Code. The indictment in this case charged that the Appellant 

possessed a firearm before the fifth anniversary of his release from 

confinement or parole for his conviction for robbery in Cause No. 

63,584 in the 264th District Court of Bell County, Texas. That conviction 

occurred on January 29, 2009. (CR-5). 

The Appellant does not contest the sufficiency of the evidence to 

prove that he was in possession of a firearm nor that he was convicted 

of the felony alleged in the indictment. Instead, he claims that the 

evidence was insufficient to prove that he possessed the firearm before 

the fifth anniversary or his release from confinement or parole. The 

evidence, however, clearly is sufficient to do so. It consists of the 

following:
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 The Appellant was convicted of the felony offense of robbery on 

January 29, 2009 and sentenced to serve three years in the 

penitentiary. 

 He was transferred to prison to serve his sentence in that case on 

February 18, 2009 and was incarcerated on that date. (State’s 

Exhibit 2 CR8).

 He was arrested in possession of the firearm on February 10, 

2014, eight days short of five years after the date his incarceration 

in the penitentiary began.

 When he was questioned about the firearm on February 10, 2014,

the Appellant stated that he could not have a firearm because he 

was on parole.

The Appellant was arrested for possession of a firearm 5 years

and 11 days after the date of his conviction. The statute requires, 

however that he be found in possession of the firearm within 5 years of 

his release from confinement or parole. 

While the Appellant is correct that the State did not prove the 

exact date of his release from confinement or parole, it did, however, 

prove that his confinement in the penitentiary began on February 18, 

2009. Therefore he could not have been released from confinement by 
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that time. Even in the very unlikely event that he was released the same 

day he arrived, he was still incarcerated within the 5 year period from 

that day when he was arrested for felon in possession of a firearm on 

February 10, 2014, or 8 days short of the expiration of that 5 year 

period. Moreover, he readily told the officer that he was on parole when 

he was arrested. 

In Gill v. State, 57 S.W.3d 540 (Tx. App. Waco 10th Dist. no pet.), 

the defendant challenged the sufficiency of the evidence to prove that he 

possessed the firearm within the 5 year period after his release from 

confinement. The Court of Appeals noted that documentary evidence 

had been admitted showing the date in which he was received into 

custody at the Texas Department of Criminal Justice and affirmed the 

judgment of conviction because he committed the offense less than 5 

years after he went to prison and thus, “...he necessarily committed it 

within 5 years after he was released from prison”. The Court observed 

that, although it would have been useful to have proven the release date, 

it was not necessary under the circumstances. Gill at 546.

Gill is precisely in point. Because the Appellant was received in 

prison less than 5 years before he was arrested for possession of a 

firearm he necessarily committed that offense within 5 years after his 
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release from prison. In this case the Appellant was arrested for 

possession of the firearm 8 days short of the fifth anniversary of his 

confinement in the penitentiary. 

The Appellant’s reliance on Fagan v. State, 362 S.W.3d 796 (Tx. 

App. Texarkana 6th Dist. 2012, rev. ref.) is misplaced because in that case 

the defendant was convicted on October 28, 2004 and given a four year 

sentence with 238 days credit and the offense occurred more than 5 

years later. Thus it was possible that the defendant could have been 

released from confinement or parole after the expiration of the 5 year 

period. Fagan at 800. Unlike this case, there was no evidence showing 

that the defendant was still incarcerated and had not been released at a 

time less than 5 years afterwards. 

Likewise in Saldana v. State, 418 S.W.3d 722, 726 (Tx. App. 

Amarillo 7th Dist. 2013 no pet.), there was no evidence as to the date of 

release from confinement but only as to the date of the conviction and 

the date of the felon in possession offense 5 years and 5 months later. 

The Court observed that there was no other evidence in the record to 

establish the date of release and that merely asking the jury to “do the 

math” based on that evidence was not sufficient. In the present case, 

however, there was other evidence that showed that the Appellant had 
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not been released from confinement more than 5 years before his arrest 

for felon in possession of a firearm. He was still incarcerated, having 

just been transferred to prison less than 5 years before that arrest. 

The Appellant also said that he was on parole at the time of this 

arrest. In Tawater v. State, No. 06-14-00075-CR, 2014 Tex. App. LEXIS

13176 (Tx. App. Texarkana 6th Dist. 2014, no pet.), not designated for 

publication, the evidence was held sufficient to support a conviction for 

felon in possession of a firearm where the judgment of conviction was 

introduced into evidence and the evidence showed that the defendant 

had told the investigating officer that he was a felon. The only 

difference here is that the Appellant clearly said he was on parole and 

could not possess a firearm when he was arrested with the firearm

rather than simply that he was a felon.

The Appellant counters that he might have been on parole for 

some offense other than that alleged in the indictment, however, that 

admission when coupled with all of the other evidence and viewed from 

the stand point most favorable to the verdict certainly is probative on 

the issue.

The evidence in this case clearly showed that the Appellant was 

still incarcerated less than 5 years before he was arrested with a firearm 
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in this case. Therefore, he was necessarily not outside of the 5 year 

statutory limitation for felon in possession of a firearm. He also told the 

officer that he was on parole when he was arrested. When all of the 

evidence is viewed from the standpoint most favorable to the verdict, 

the jury could clearly have reasonably found that the Appellant 

possessed the firearm before the fifth anniversary of his release from 

confinement or parole.

PRAYER

The State of Texas respectfully prays that the judgment of 

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000
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CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 1780 words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, Erica Copeland, Counsel for Appellant, by electronic 

transfer via Emil, addressed to her at ecopeland63@yahoo.com on this 

13th day of February , 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney