COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00330-CR

JONATHON SEARS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Jonathon Sears of the felony offense of unlawful 

possession of a firearm by a felon,

2

and, upon his plea of true to the habitual 

offender paragraph, the trial court sentenced him to eight years’ confinement. 

Appellant brings three issues on appeal, challenging the validity of the search 

warrant resulting in the discovery of the firearm and the sufficiency of the evidence 

 

1See Tex. R. App. P. 47.4.

2See Tex. Penal Code Ann. § 46.04(a) (West 2011).
2

linking him to the firearm and contending that he received ineffective assistance of 

counsel at trial. Because Appellant did not preserve his challenge to the warrant 

below, the evidence sufficiently links him to the firearm, and he has not satisfied his 

burden to prove both prongs of his ineffective assistance of counsel claim, we affirm 

the trial court’s judgment.

Validity of the Warrant

In his first issue, Appellant challenges the seizure of the firearm. But 

Appellant did not file a motion to suppress. Additionally, when the State offered the 

firearm and the clip into evidence, trial counsel stated that he had no objection. To 

preserve error about the illegal seizure of evidence, a defendant must either file a 

motion to suppress and obtain a ruling on the motion or timely object when the State 

offers the evidence at trial.3

Appellant concedes that trial counsel made no effort to challenge the warrant 

and filed no motion to suppress the fruits of the search. He admits that trial counsel 

wholly failed to preserve this complaint for appellate review. We therefore overrule 

Appellant’s first issue.

Sufficiency of the Nexus

In his second issue, Appellant contends that the evidence is insufficient to link 

him to possession of the firearm. In our due-process review of the sufficiency of the 

evidence to support a conviction, we view all of the evidence in the light most 

 

3Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. 

ref’d).
3

favorable to the verdict to determine whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.4

This standard gives full play to the responsibility of the trier of fact to resolve 

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

from basic facts to ultimate facts.5 The trier of fact is the sole judge of the weight 

and credibility of the evidence.6 Thus, when performing an evidentiary sufficiency 

review, we may not re-evaluate the weight and credibility of the evidence and 

substitute our judgment for that of the factfinder.7 Instead, we Adetermine whether 

the necessary inferences are reasonable based upon the combined and cumulative 

force of all the evidence when viewed in the light most favorable to the verdict.@

8

 We 

must presume that the factfinder resolved any conflicting inferences in favor of the 

verdict and defer to that resolution.9

 

4

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. 

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

5

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

6See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270 

S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).

7Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

8Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

9

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.
4

An essential element of the offense of felon in possession of a firearm is that

the convicted felon possess the firearm.10 When the accused is not in exclusive 

possession of the location where the contraband, in this case the firearm, is found, 

the State must establish “additional independent facts and circumstances” that “link”

the accused in such a manner that it can be concluded that the accused had 

knowledge of the firearm and exercised control over it.

11

Officer Rodney McMullin approached a house to execute the search warrant;

he saw a man he later identified as Appellant standing at a front window. McMullin 

identified Appellant as that man during the trial. When McMullin entered the house, 

he went to the front bedroom of the house where he had seen Appellant standing in 

the front window. On the way there, he encountered Appellant and secured him.

McMullin saw a pistol lying on a table near the window where he had seen Appellant 

standing.

Appellant was not alone in the house. There were two other people present 

when the officers executed the warrant.

Latent prints were found on the magazine inside the pistol. Deborah Smith, a 

latent print examiner for the Fort Worth Police Department Crime Laboratory,

compared the prints to those of Appellant and determined that the two sets of prints 

matched.

 

10See Tex. Penal Code Ann. § 46.04(a).

11Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).
5

Appellant argues that had the gun been his, his prints would have been “all 

over the weapon itself.” Additionally, he argues that evidence of his possession fails 

because there is no evidence regarding when he touched the magazine or if he, in 

fact, inserted the clip into the weapon. Appellant argues that the evidence shows 

only that he touched the clip and not that he actually possessed the firearm itself.

He also points to the presence of the two other people in the house at the time of his 

arrest.

The jury could have properly inferred that Appellant possessed the gun, given 

that its magazine found inside contained his fingerprints and that the gun was found 

in the same bedroom and near the spot he stood when the police first saw him upon 

their arrival at the house.

Applying the appropriate standard of review, we hold that the evidence is 

sufficient to show that Appellant possessed the firearm and to support his 

conviction. We overrule Appellant’s second issue.

Ineffective Assistance of Counsel

In his third issue, Appellant argues that his trial counsel rendered ineffective 

assistance of counsel because there is no evidence of any trial preparation 

whatsoever. No pretrial motions were filed, no motion to suppress was filed, there is 

no evidence of any attempted discovery, and trial counsel did nothing to challenge 

the search that produced the firearm. Retained counsel did nothing during the trial 

except elicit from Appellant his desire not to testify at trial and bring in co-counsel at 
6

the last minute. Co-counsel had time only to file a single motion in limine on the day 

of trial.

To establish ineffective assistance of counsel, an appellant must show by a 

preponderance of the evidence that his counsel’s representation fell below the 

standard of prevailing professional norms and that there is a reasonable probability 

that, but for counsel’s deficiency, the result of the trial would have been different.12

In evaluating the effectiveness of counsel under the first prong, we look to the 

totality of the representation and the particular circumstances of each case.13 The 

issue is whether counsel’s assistance was reasonable under all the circumstances 

and prevailing professional norms at the time of the alleged error.14 Review of 

counsel’s representation is highly deferential, and the reviewing court indulges a 

strong presumption that counsel’s conduct fell within a wide range of reasonable 

representation.15 A reviewing court will rarely be in a position on direct appeal to 

fairly evaluate the merits of an ineffective assistance claim.16 “In the majority of 

cases, the record on direct appeal is undeveloped and cannot adequately reflect the 

 

12Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Hernandez v. State, 

988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

13Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

14See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

15Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. 

State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

16Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
7

motives behind trial counsel’s actions.”

17

 To overcome the presumption of 

reasonable professional assistance, “any allegation of ineffectiveness must be firmly 

founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness.”

18

 It is not appropriate for an appellate court to simply infer 

ineffective assistance based upon unclear portions of the record.19

The second prong of Strickland requires a showing that counsel’s errors were 

so serious that they deprived the defendant of a fair trial, that is, a trial with a reliable 

result.20 In other words, an appellant must show there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.21 A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.22 The ultimate focus of our inquiry must be on the 

fundamental fairness of the proceeding in which the result is being challenged.23

 

17Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

18Id. (quoting Thompson, 9 S.W.3d at 813).

19Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

20Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

21Id. at 694, 104 S. Ct. at 2068.

22Id.

23Id. at 697, 104 S. Ct. at 2070.
8

As inadequate as trial counsel’s performance appears from the record 

available to this court, we cannot say that Appellant has met his burden to prove 

both prongs of the Strickland standard.

Appellant contends that trial counsel should have challenged the warrant and 

supporting affidavit. Appellant addresses the defects that he perceives in the 

warrant and supporting affidavit. Although the affidavit does not explain as 

thoroughly as it could the reasons that the confidential informant could be relied on,

the officers did not rely solely on unverified statements of the informant. The officers 

observed heavy traffic to and from the house, consistent with the sale of contraband 

from the house. The informant conducted a controlled buy at the drug house for 

police officers, showing that drugs were possessed inside the house and being sold 

from the house. The affidavit provided the magistrate with a substantial basis for 

deciding that probable cause existed, and the warrant was sufficiently valid to 

support the search.24

Appellant also argues that trial counsel should have sought to suppress the 

firearm that was the fruit of the search of the house. Appellant contends that the 

officers were obligated to obtain a new search warrant after discovering the weapon 

because it was not named in the original warrant. He provides no authority for this 

position, however, and does not explain why a weapon found in plain view by 

 

24See State v. McLain, 337 S.W.3d 268, 271–74 (Tex. Crim. App. 2011); 

Barrett v. State, Nos. 07-11-0002-CR, 07-11-0003-CR, 07-11-0004-CR, 07-11-0005-

CR, 07-11-0006-CR, 2012 WL 1694423, at *3–4 (Tex. App.—Amarillo May 15, 

2012, no pet. h.). 
9

officers conducting a lawful search cannot be seized without securing an additional 

warrant. Indeed, the Texas Court of Criminal Appeals has upheld searches and 

seizures under similar circumstances, stating that a firearm seen on a breakfast bar 

during a lawful search was “contraband in plain view” which the officers were 

permitted to seize.25

We cannot say that failure to object to a valid affidavit and warrant or failure to 

file a futile motion to suppress constitutes ineffective assistance of counsel. Further,

Appellant does not suggest that his sentence was affected by trial counsel’s 

performance. Because Appellant did not sustain his burden under Strickland, we 

overrule Appellant’s third issue.

Conclusion

Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 14, 2012

 

25Jones v. State, 565 S.W.2d 934, 936 (Tex. Crim. App. [Panel Op.] 1978).