1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ NO. 09-21-00168-CR NO. 09-21-00169-CR NO. 09-21-00170-CR

__________________ LAWRENCE ISERAL HUBERT, Appellant
V. THE STATE OF TE XAS, Appellee

________________________ ______________________ ____________________ On Appeal from the 253rd District Court Liberty County, Texas Trial Cause Nos. CR34877, CR34892CT1 and CR34892CT2

________________________ ______________________ ____________________ MEMORANDUM OPINION A jury convicted appellant Lawrence Is eral Hubert of evading arrest or detention with a previous conviction and of two charge s of unlawful possession of a firearm by a felon. In four issues on appeal , Hubert challenges the sufficiency of the evidence, admission of evidence, and the tr ial court’s decision to grant two of the State’s challenges for cause. We affirm the trial court’s judgments.2 THE EVIDENCE
K.A. 1 testified that she called 9-1-1 because her neighbor, Hubert, pointed a gun at her and her friends while they were sitting in her grandmother’s backyard. K.A. described the gun as bl ack, automatic and bigger th an a handgun. K.A. testified that the gun she saw Hubert holding matche d the photographs of the guns depicted in State’s Exhibits 9 and 13, which was later identified as the Kel-Tec SUB2000 9- millimeter carbine. Lieutenant Michael Shane Burleigh of the Dayton Police Depa rtment testified that he was called out to assist with a possible barri caded subject, and when he arrived, patrol officers had a perimete r set up around Hubert ’s house and were searching for Hubert. Burleigh explained th at the call indicated that weapons may have been involved. Burleigh testified that Hubert’s car was at his house, but they did not locate Hubert. Burleigh explained th at a warrant was i ssued for Hubert’s arrest and Sergeant Brian C howns was the affiant, and when the police located Hubert the next day, Hubert ran. Burleigh testified that wh en he arrived at the scene, Hubert had already been arrested base d on the warrant, and Burleigh located a Springfield Armory XD black handgun in the grass a couple hundred yards from

1 To protect the privacy of the State’s witn esses who testified atHubert’s trial, we identify them by their initials. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated w ith fairness and with respect for the victim’s dignity and privacy throughout the crimin al justice process”).3 Hubert’s house. Burleigh also recovered a white cloth bag that appeared to be a pillowcase with a Kel-Tec SUB2000 9-millimie ter carbine which “folds out into a larger legal size rifle.” Acco rding to Burleigh, Hubert did not live on the plot of land where he recovered the SpringfieldArmory XD handgun and the Kel-Tec 9- millimeter. Chowns of the Dayton Police Departme nt explained that he was called out due to a suspicious subject that he de termined was Hubert, and after receiving information from K.A. and two others, Chowns started an investigation for a felon in possession of a firearm. Chow ns testified that he applie d to get an arrest warrant for Hubert and that the affidavit contains his signature, and based on the arrest warrant, officers arrested Hubert the next day with firearms in his possession. Hubert’s counsel complained that H ubert’s arrest was unlawful, and the warrant was invalid beca use Chowns’s affidavit supporting the warrant was insufficient because it faile d to provide the magistrate with information regarding the witnesses’ credibility and reliability. Hubert’s counsel argued the evidence obtained due to Hubert’s arrest is inadmissible. The trial court admitted the Warrant of Arrest for Hubert for the offense of possession of a firearm by a felon and a copy of Chowns’s probable cause affidavit. In his affidavit, Chowns averred that the complainant contacted the police after Hubert pointed a weapon at the complainant, and four witnesses to the incident all4 advised they observed Hubert w ith an assault style rifle and a pistol. Chowns further averred that Hubert’s criminal history re vealed felony convictions for aggravated assault against a public servant, evading a rrest or detention w ith a vehicle, and possession of a controlled subs tance. The trial court found that the affidavit was sufficient because it was based on four witn esses and the complainant’s 9-1-1 call. Trooper Christopher Richmond of the Texa s Department of Public Safety testified that when he assisted with the arrest warrant, he obs erved Hubert carrying a white bag, which appeared to be a pillow case. Richmond testified that when Hubert spotted him in his marked patrol unit, Hube rt changed directions and ran. The trial court admitted a video taken from Rich mond’s body camera showing Richmond running after Hubert and the recovery of the white bag Hubert was carrying. Richmond testified that the white bag contained a firearm that was “some type of machine rifle mechanism.” Ri chmond explained they also recovered a Springfield XD 40-caliber handgun at the scene. The vi deo shows that the Springfield XD 40- caliber handgun was found in plain view in the grass a few feet from the white pillowcase. The video also shows anothe r Trooper stating that Hubert had the Springfield XD 40-caliber handgun in his hand when he was running. Investigator Ivan Pearce of the Libe rty County District Attorney’s Office testified that he is an expert in examining inked fingerprints. Pearce testified that he obtained a fingerprint card from Hubert, comp ared the inked fingerprints on the card5 to the fingerprints on State’s Exhibit 16, a judgment of conviction for the state jail felony offense of possession of a controlle d substance, and de termined Hubert’s fingerprints matched the fingerp rints on State’s Exhibit 16. Pearce also testified that Hubert’s fingerprints matched the fingerprints on State’s Exhibit 18, a judgment of conviction for evading arrest or detention with a vehicle, a st ate jail felony. Pearce explained other identifying information linke d Hubert to State’s Exhibits 16 and 18. Sergeant Eric Ibarra of the Dayton Poli ce Department testified that his dash camera on his marked patrol vehicle capt ured his attempt to apprehend Hubert because there was a warrant for his arrest. Ibarra explained that he observed Hubert carrying either a towel or pillowcase. Ibarra testified that he was in full uniform and had activated his lights and sirens when Hube rt ran, and after he and other agencies searched for over an hour, Hubert was arrest ed. Ibarra testified that he collected evidence at the scene of Hubert’s arrest , which included the white pillowcase Ibarra observed in Hubert’s hand, magazines, the Springfield Armory XD 40-caliber handgun, the Kel-Tec 9-millimeter, ammun ition, and marijuan a. Ibarra also explained that Hubert was not arrested at his house, and Hubert did not live at the location where he was arrested. At the close of the State’s evidence, Hu bert’s counsel reur ged the trial court to find that Chowns’s affidavit supporting the warrant was insufficient and to instruct the jury to disregard all evidence obtaine d due to the warrant. The trial court6 reiterated that it found th e arrest warrant sufficient, and the trial court noted that prior to being arrested on the warrant, Hubert co mmitted the three felony offenses at issue in the officers’ presence be fore any arrest or detenti on was effectuated. The trial court denied Hubert’s motion for a di rected verdict in all three cases. The jury found Hubert guilty of evading arrest or detention with a previous conviction and of two charges of unlawfu l possession of a firearm by a felon. The trial court conducted a punishment hearing, during which the jury heard evidence of Hubert’s prior felony convictions for a ggravated assault on a public servant, aggravated robbery, and possession of a cont rolled substance. In trial cause number CR34877, the jury found the habitual paragraph in the indictment to be true and assessed punishment at two year s of confinement for evading arrest or detention with a previous conviction. In trial cause numbers CR34892CT1 and CR34892CT2, the jury found enhancement allega tions A and B and habitual a llegation C to be true and assessed punishment at thirty years of confinement for each count of unlawful possession of a firearm by a felon.
ANALYSIS
ADMISSION OF EVIDENCE In issue one, Hubert complains thatthe trial court erred by admitting the firearms seized upon his arrest because C howns’s affidavit supporting the arrest7 warrant was insufficient to establish probable cause. 2 According to Hubert, Chowns’s affidavit wa s insufficient because it failedto name the informants or establish their credibility and the reliability of their information. Hubert argues Chowns’s affidavit only provided unsupported , conclusory statements that failed to provide the magistrate with sufficient information to support an independent judgment that probable cause existed and th ere was no basis estab lished at trial for a lawful warrantless arrest. We review a trial court’s ruling on th e admission of evidence for an abuse of discretion. See Walters v. State , 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A trial court abuses its discretion when its d ecision lies “outside the zone of reasonable disagreement.” See id . (quoting Apolinar v. State , 155 S.W.3d 184, 186 (Tex. Crim. App. 2005)). “An arrest warrant affida vit must provide the magistrate with ‘sufficient information to support an inde pendent determination that probable cause exists to believe that probable cause exists for the warrant.’” McFarland v. State , 928 S.W.2d 482, 509 (Tex. Crim. App. 1996), abrogated on other grounds by Mosley v. State , 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998); see also State v.

2 Ordinarily, we would address issues thr ee and four first because, if sustained, they would result in rendition of a judgment of acquittal. See Price v. State , 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Tex. R. App. P. 47.1. However, we will address issue one first because Hubert argues that we must not consider evidence of the firearms seized upon his arrest because Chowns’s affidavit supportin g the arrest warrant was insufficient to establish probable cause and there was no independe nt basis established for his arrest.8 Duarte , 389 S.W.3d 349, 353, 360-61 (Tex. Crim. App. 2012). The test is whether a reasonable reading by the magistrate would lead to the conclusion that the four corners of the affidavit provide a “subs tantial basis” for issuing the warrant. Duarte , 389 S.W.3d at 354 (citation omitted); Valadez v. State , 476 S.W.3d 661, 670 (Tex. App.—San Antonio 2015, pet. ref’d). We will uphold the magi strate’s probable cause determination so long as the magistra te had a substantial basis for concluding that probable cause existed. Valadez , 476 S.W.3d at 670. We analyze the affidavit with common sense, recognizing that the ma gistrate may draw reasonable inferences from the facts and circumstances contained w ithin the four corners of the affidavit. See id. Information in an affidavit supporting an arrest may be based on either the affiant’s personal knowledge or on hearsay information. Id. The reliability of the affiant and his sources are part of the “totality of the circumstances” that the magistrate should evaluate indetermining probable cause. State v. Coker , 406 S.W.3d 392, 395–96 (Tex. App. —Dallas 2013, pet. ref’ d) (citations omitted). However, where an eyewitness to the offense is the direct source of the information conveyed to the magistrate via a police officer, corroborative facts and other indicia of reliability are unnecessary. White v. State , 746 S.W.2d 775, 778 (Tex. App.— Dallas 1985, no pet.). The affidavit is su fficient if the information given by an unnamed eyewitness adequately suggests di rect knowledge on his or her part. See9 Belton v. State , 900 S.W.2d 886, 894 (Tex. App.—E l Paso 1995, pet. ref’d); see also Valadez , 476 S.W.3d at 670. Hubert argues that Chowns’s affida vit was conclusory and insufficient because it failed to name the informants or establish their credibility and the reliability of their information. In his affi davit, Chowns averred that the complainant called the police to report that Hubert wa s walking around with a firearm that he pointed in the complainant’s direction and that Hubert had commented that he was going to kill someone. Chowns further averre d that there were four witnesses to the incident who observed Hubert with an assault style rifle and pistol. In viewing the totality of the circumstances in a common sense and realistic ma nner, we conclude the magistrate had a substan tial basis for concluding probable cause existed to issue the arrest warrant against Hubert. See Duarte , 389 S.W.3d at 354. We further conclude that Chowns’s affi davit is sufficient and did not require corroborative facts and other indicia of reliability because th e unnamed complainant and other witnesses who provided the information were eyewitn esses who had direct knowledge of the incident. See Valadez , 476 S.W.3d at 670; Belton , 900 S.W.2d at 894; White , 746 S.W.2d at 778. Accordingly, Hubert’s co mplaint that the trial court erred by admitting the firearms seized upon his a rrest because Chowns’s affidavit was insufficient to establish probable cause is without merit. We overrule issue one.10 SUFFICIENCY OF THE EVIDENCE In issue three, Hubert argues that th e evidence is insufficient to support his conviction for unlawful possession of a fir earm by a felon because the evidence did not establish that he possessed the Spri ngfield Armory XD 40-caliber handgun. In issue four, Hubert argues that the evidence is insufficient to support his conviction for evading arrest or detention with a prev ious conviction because the State failed to establish that Ibarra had a lawful basis to arrest or detain him. In evaluating the legal sufficiency of th e evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essen tial elements of the offense beyond a reasonable doubt. Brooks v. State , 323 S.W.3d 893, 902 n.19 (Tex . Crim. App. 2010) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the ulti mate authority on the credibility of the witnesses and the weight to be given to their testimony. Penegraph v. State , 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op .] 1981). An appellate court may not sit as a thirteenth juror and substitute its judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks , 323 S.W.3d at 899. A reviewing court must give full deference to the jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from11 basic facts to ultimate facts. Hooper , 214 S.W.3d at 13 (citation omitted). If the record contains conflicting inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that resolution. See Brooks , 323 S.W.3d at 899 n.13; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we “determine whether the necessary in ferences are reasonable based upon the combined and cumulative force of all evid ence when viewed in the light most favorable to the verdict.” Hooper , 214 S.W.3d at 16-17. We treat direct and circumstantial evidence equally. Clayton , 235 S.W.3d at 778. To establish unlawful possession of a fi rearm by a felon, the State must prove that a person who has been convicted of a felony possessed a firearm after (1) conviction and before the fifth annivers ary of his release from confinement or supervision following convicti on of the felony, whichever is later; or (2) the period described by Subdivision (1), at any location other than the premises at which the person lives. Tex. Penal C ode Ann. § 46.04(a). A se parate statute defines “[p]ossession.” See id. § 1.07(a)(39). The State can prove the defendant knowingly or intentionally possessed a firearm by intr oducing either direct or circumstantial evidence to establish the defendant (1) ex ercised care, custody, or control of the firearm, (2) was conscious of his connecti on with the firearm, and (3) possessed the firearm knowingly or intentionally. See id. ; Greer v. State , 436 S.W.3d 1, 5 (Tex. App.—Waco 2014, no pet.). Wh ile the State can meet its burden with direct or12 circumstantial evidence, the ev idence before the jury must establish the defendant’s connection to the firearm was more than fortuitous. See Greer , 436 S.W.3d at 5 (citing Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). When the evidence before the jury doe s not establish the defendant had the firearm on his person or that he had excl usive possession of the gun, the evidence in trial must affirmatively li nk the defendant to the gun. See Barlow v. State , 586 S.W.3d 17, 23 (Tex. App.—Beaumont 2019, pet. ref’d); Jones v. State , 338 S.W.3d 725, 742 (Tex. App.—Houston [1stDist.] 2011 (op. on reh’g), aff’d , 364 S.W.3d 854 (Tex. Crim. App. 2012). The affirmativ e links must show either that the defendant voluntarily possessed the gun or th at he “‘was conscious of his connection with the weapon and knew what it was.’” Stout v. State , 426 S.W.3d 214, 218 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (quoting Jones , 338 S.W.3d at 742). The “affirmative links” requirement is designe d to protect an innocent bystander from being convicted based solely upon the f act the evidence was established the defendant was seen near another person’s gun. Blackman v. State , 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (quoting Poindexter v. State , 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005)). To determine whether the evidence admitted in the trial sufficiently established affirmative links between the defendant and th e firearm, courts look to the following non-exclusive factors: (1) was the firearm in plain view; (2) was the13 firearm found near the defendant in a locati on where the defendant could have easily accessed the weapon; (3) was the firearm found on the defendant; (4) did the defendant attempt to flee; (5) did the de fendant’s conduct indicate his consciousness of guilt, including the extrem e nervousness or furt ive gestures; (6) did the defendant have any special relationship or connection to the firearm; (7) was the place where the firearm was found enclosed; and (8) did the defendant’s affirmative statements connect him to the firearm, including incriminating statements made by the defendant when arrested. Stout , 426 S.W.3d at 218 (citing James v. State , 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Di st.] 2008, pet. ref’d)). While courts use the above non-exclusive factors to exam ine whether the evidence affirmatively links the defendant to the firearm, “[t]he absence of various links” is not dispositive but may be weighed with other links that are present. Swapsy v. State , 562 S.W.3d 161, 165 (Tex. App.—Texarkana 2018, no pet.) (quoting Williams v. State , 313 S.W.3d 393, 398 (Tex. App.—Houston [1 st Dist.] 2009, pet. ref’d)). The evidence before the jury included several affirmative links connecting Hubert to possession of the Springfield Armory XD 40-caliber handgun. Richmond testified that he observed H ubert carrying a white pillowcase that contained a firearm and that a Springfield XD 40-caliber handgun was recovered from the scene. The video from Richmond’s body camera shows th at Hubert was arrested near the Springfield XD 40-caliber handgun, which wa s found in plain view in the grass a14 few feet from the white pillo wcase. The video also s hows another Trooper stating that Hubert had the Springfield XD 40- caliber handgun in his hand when he was running. Ibarra testified that he observed Hubert with a white pillowcase in his arm and that he collected the Springfield Armo ry XD 40-caliber handgun at the scene of Hubert’s arrest. We conclude that Hubert’s conn ection to the Springfield Armory XD 40- caliber handgun was more than fortuitous and that the logical force of the links established by the evidence submitted at tr ial would allow a reasonable jury to conclude that Hubert possessed the Sp ringfield Armory XD 40-caliber handgun. See
Greer , 436 S.W.3d at 5; Graves v. State , No. 01-19-00868-CR, No. 01-19-00869- CR, 2020 WL 7349101, at *3 (Tex. App.—Housto n [1st Dist.] Dec. 15, 2020, pet. ref’d) (mem. op., not designate d for publication). Reviewing all the evidence in the light most favorable to the ve rdict, we conclude that a rational factfinder could have found the elements of unlawful possess ion of a firearm by a felon beyond a reasonable doubt. See Jackson , 443 U.S. at 319; Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); Graves , 2020 WL 7349101, at *3; see also Tex. Penal Code Ann. § 46.04(a). We overru le issue three. Under section 38.04 of th e Texas Penal Code, a pe rson commits the offense of evading arrest or detention if he in tentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him. Tex. Penal Code Ann. §15 38.04(a). The indictment alle ges that Hubert fled from Sergeant Ibarra, who was a peace officer who was lawfully attempting to arrest or deta in him, and that prior to the commission of the charged offense, H ubert was convicted of evading arrest under section 38.04. Hubert argues the evid ence is insufficient to support his conviction for evading arrest or detenti on with a previous conviction because the State failed to establish that Ibarra had a lawful basis to arrest or detain him. Having already determined that Chowns’s affidavit was sufficient to establish probable cause to issue the arrest warrant against Hubert, we conclude that Ibarra had a lawful basis to arrest or detain Hubert. Additionally , Ibarra testified that his dash camera on his marked patrol vehicle captured his attempt to apprehend Hubert because there was a warrant for his arrest. Ibarra explained that he was in full uniform and had activated his lights and sire ns when Hubert ran. Ibarra’s dash cam video shows Hubert running down the road and into a wooded area carrying a white bag and Ibarra driving into a grassy area in pursuit of Hubert. Reviewing all the evidence in the light most favorable to th e verdict, we concl ude that a rational factfinder could have found the elements of the state jail felony offense of evading arrest or detention with a previ ous conviction beyond a reasonable doubt. See Jackson , 443 U.S. at 319; Gear , 340 S.W.3d at 746; Tex. Penal Code Ann. § 38.04(a). Accordingly, we overrule issue four.16 JURY CHALLENGES FOR CAUSE In issue two, Hubert complains the tr ial court erred by gr anting two of the State’s challenges for cause and dismissing the venirepersons because they could not consider the full range of punishment. Ac cording to Hubert, both venirepersons confirmed that they could consider th e full range of punishment after being questioned further. We review a complaint about the tr ial court’s granting of the State’s challenges for cause for anabuse of discretion. See Tracy v. State , 597 S.W.3d 502, 512 (Tex. Crim. App. 2020). Since the trial cour t is in the best position to evaluate a potential juror’s demeanor and responses, we give consideration deference to the trial court’s ruling on a challenge for cause. Hudson v. Stat e, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021). “A challenge for cause is an objection made to a particular juror, alleging some fact wh ich renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a). “[T]he proponent of a challenge for cause has the burden of establishing that the challenge is proper.” Gardner v. State , 306 S.W.3d 274, 295 (Tex. Crim . App. 2009). The State ma y make a challenge for cause that the juror has a “bias or prejudi ce against any phase of the law upon which the State is entitled to rely for convictio n or punishment.” Tex. Code Crim. Proc. Ann. art. 35.16(b)(3); see Pierce v. State , 696 S.W.2d 899, 901-03 (Tex. Crim. App. 1985). “Both the State and th e defense are entitled to juro rs who can consider the17 entire range of punishment for the particular statutory offense– i.e. , from the maximum to the minimum and all points in between.” Cardenas v. State , 325 S.W.3d 179, 184 (Tex. Crim. App. 2010). “[U]nle ss there is further clarification or vacillation by the juror, the trial judge must grant a challenge for cause if the juror states that he cannot consider the full range of punishment.” Id. at 185. During voir dire, the prosecutor aske d the panel if anyone was unable to consider the full range of punishment of 25 to 99 or life for the crime of unlawful possession of a firearm by a felon if the St ate shows that the defendant has two or more prior convictions. The record reflects that among others, venirepersons 18 and 28 indicated they could not consider the full range of punishment of 25 to 99 or life. The State challenged venirepe rsons 18 and 28 for cause, and the trial court granted the State’s challenges. Although Hubert argues that venirepersons 18 and 28 confirmed that they could consider th e full range of punishment after being questioned further, the record does not support Hubert’s argument. Rather, the record shows that venireperson 18 told th e trial court that he could not follow the full range of punishment if the individual only had minor felonies but still fell under the habitual status. The record further show s that venireperson 28 also told the trial court that she could not consider the full range of punishment if the individual had minor felonies because it was “too harsh a punishment.” We conclude the trial court did not abuse its discretion by granti ng the State’s challenges for cause. See Tex.18 Code Crim. Proc. Ann. art. 35.16(a), (b)(3); Tracy , 597 S.W.3d at 512; Cardenas , 325 S.W.3d at 184-85; Gardner , 306 S.W.3d at 295. We overrule issue two. Having overruled each of Hubert’s issues, we affirm the trial court’s judgments.
AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice
Submitted on April 8, 2022 Opinion Delivered April 27, 2022 Do Not Publish Before Golemon, C.J., Kr eger and Johnson, JJ.