Micalosa Bernard McDaniel v. State ( 2015 )


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  • AFFIRM; and Opinion Filed May 7, 2015.
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-14-00887-CR
    MICALOSA BERNARD MCDANIEL, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the Criminal District Court No. 3
    Dallas County, Texas
    Trial Court Cause No. F-1362016-J
    MEMORANDUM OPINION
    Before Justices Bridges, Lang, and Schenck
    Opinion by Justice Schenck
    Micalosa Bernard McDaniel (Appellant) appeals his conviction of unlawful possession of
    a firearm by a felon in two issues. In his first issue, Appellant argues the evidence is legally
    insufficient to support his conviction. In his second issue, Appellant contends the trial court erred
    by overruling Appellant’s objection to reading to the jury the portion of the indictment
    describing the type of prior offense Appellant committed when Appellant had already agreed to
    stipulate to the prior felony. We affirm his conviction in full. Because all issues are settled in
    law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
    DISCUSSION
    1. Sufficiency of the evidence
    Standard of Review
    When conducting a legal sufficiency review, we must ask whether “any rational trier of
    fact could have found the essential elements of the crime beyond a reasonable doubt”—not
    whether “it believes that the evidence at the trial established guilt beyond a reasonable doubt.”
    Jackson v. Virginia, 
    443 U.S. 307
    , 318-19 (1979). In doing so, we assess all of the evidence in
    the light most favorable to the verdict. 
    Id. at 319).
    This same standard applies equally to
    circumstantial and direct evidence. Laster v. State, 
    275 S.W.3d 512
    , 517-18 (Tex. Crim. App.
    2009). After giving proper deference to the factfinder's role, we will uphold the verdict unless a
    rational factfinder must have had reasonable doubt as to any essential element. 
    Id. at 518.
    Applicable Law
    To establish unlawful possession of a firearm by a felon, the State is required to show
    appellant was previously convicted of a felony offense and possessed a firearm after the
    conviction and before the fifth anniversary of his release from confinement or from supervision
    or parole, whichever is later. TEX. PEN. CODE ANN. § 46.04(a)(1). “Possession” means actual
    care, custody, control, or management. 
    Id. § 1.07(a)(39).
    A person commits a possession offense
    only if he voluntarily possesses the prohibited item. See 
    id. § 6.01(a)).
    Possession is a voluntary
    act if 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. 
    Id. § 6.01(b)).
    In cases involving unlawful possession of a firearm by a felon, we analyze the sufficiency
    of the evidence under the rules adopted for determining the sufficiency of the evidence in cases
    of unlawful possession of a controlled substance. Young v. State, 
    752 S.W.2d 137
    , 140 (Tex.
    App.—Dallas 1988, pet. ref'd). Thus, the State is required to prove: (1) the accused exercised
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    actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and
    (3) he possessed the firearm knowingly or intentionally. Cude v. State, 
    716 S.W.2d 46
    , 47 (Tex.
    Crim. App. 1986). The State's evidence, which may be either direct or circumstantial, must
    establish the accused's connection with the firearm was more than just fortuitous. Brown v. State,
    
    911 S.W.2d 744
    , 747 (Tex. Crim. App. 1995).
    If the firearm is not found on the accused's person or is not in the exclusive possession of
    the accused, the evidence must affirmatively link the accused to the firearm. Bates v. State, 
    155 S.W.3d 212
    , 216 (Tex. App.—Dallas 2004, no pet.) Factors which may establish affirmative
    links include whether: (1) the contraband was in plain view; (2) the accused was the owner of the
    car in which the contraband was found; (3) the accused was the driver of the car in which the
    contraband was found; (4) the accused was in close proximity and had ready access to the
    contraband; (5) the contraband was found on the same side of the car seat as the accused was
    sitting; (6) contraband was found on the accused; (7) the defendant attempted to flee; (8) conduct
    by the accused indicated a consciousness of guilt, including extreme nervousness or furtive
    gestures; (9) the accused had a special connection or relationship to the contraband; (11) the
    place where the contraband was found was enclosed; (12) occupants of the automobile gave
    conflicting statements about relevant matters; and (13) affirmative statements connect the
    accused to the contraband, including incriminating statements made by the accused when
    arrested. 
    Id. at 216-17.
    The number of factors present is not talismanic. 
    Id. at 217.
    Rather, it is
    the logical force or the degree to which the factors, alone or in combination, tend to affirmatively
    link the accused to the contraband. 
    Id. Application of
    Law to Facts
    Here, the record reveals several affirmative links between Appellant and the firearm. The
    firearm was found under the backseat cushion on the same side of the car where Appellant was
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    sitting. Trial testimony established that the backseat cushion was not attached to the car, so
    Appellant could have easily lifted a corner of the backseat cushion to place the gun under the
    backseat. Prior to the traffic stop, the arresting officer saw Appellant moving around, trying to
    bend down as if concealing something. The record shows Appellant made incriminating
    statements in phone calls from the jail, stating he knew if he did not get out of the car, he would
    be “good” because “I know what I got.” Appellant also related he tried to convince another of the
    car’s occupants to lie and take the gun—“All you have to do is tell them bro it’s my gun, boy
    you’d been in here . . . for about 2 to 3 months.” Appellant points out the record shows that
    Appellant did not drive or own the car, that he was in the car with four other people, and that he
    was also found to possess drugs, which were recovered from his socks, which might also explain
    his bending down as if to conceal something during the course of the stop. A jury might have
    readily drawn the inference that the drugs and gun were equally problematic from Appellant’s
    perspective, and that his furtive attempts to conceal something during the stop reflected his
    knowledge that he possessed both. After reviewing all the record evidence in the light most
    favorable to the verdict, we conclude the evidence is legally sufficient to support Appellant’s
    conviction. See 
    Laster, 275 S.W.3d at 518
    . Accordingly, we overrule his first issue.
    2. Description of prior felony offense
    In his second issue, Appellant contends the trial court erred by overruling his objection to
    the State’s reading to the jury the portion of the indictment describing the type of prior felony
    offense committed as the predicate to the offense of felon in possession of a firearm when
    Appellant agreed to stipulate to the underlying felony conviction. Appellant urges that evidence
    of his prior offense carries the risk of unfair prejudice because in addition to the firearm offense,
    he was charged with two counts of possession of a controlled substance, and his prior offense
    was possession of a controlled substance.
    –4–
    Article 36.01(a)(1) of the Texas Code of Criminal Procedure provides that “[t]he
    indictment or information shall be read to the jury by the attorney prosecuting . . . .” TEX. CODE.
    CRIM. PROC. ANN. art. 36.01(a)(1). Rule 403 of Texas Rules of Evidence provides that “[t]he
    court may exclude relevant evidence if its probative value is substantially outweighed by a
    danger of one or more of the following: unfair prejudice . . . .” TEX. R. EVID. 403.
    Appellant relies on three cases for the argument that once a defendant charged with
    possession of a firearm by a felon stipulates to a prior conviction and objects to the reading of the
    portion of the indictment describing the type of prior felony offense committed, it is error to
    permit the State to read those facts to the jury as required by article 36.01(a)(1). See Old Chief v.
    United States, 
    519 U.S. 172
    (1997); Tamez v. State, 
    11 S.W.3d 198
    (Tex. Crim. App. 2000);
    McIlroy v. State, 
    188 S.W.3d 789
    (Tex. App.—Fort Worth 2006, no pet.). In all three cases, the
    defendant offered to stipulate to the prior convictions and objected to the reading of the full
    indictment. In Old Chief and Tamez, the defendants’ offers to stipulate were denied, and the
    defendants renewed their objections when the prosecutors offered the judgments from the prior
    convictions. Old 
    Chief, 519 U.S. at 175
    , 177; 
    Tamez, 11 S.W.3d at 199
    , 202. In McIlroy, the
    defendant stipulated to the prior conviction, objected to the full reading of the indictment, and
    prosecutor did not attempt to introduce the judgment from the prior conviction. 
    McIlroy, 188 S.W.3d at 792-93
    , 96-97. These three cases are distinguishable. Appellant obtained a running
    objection contemporaneous with the reading of the prior offense, but the agreed stipulation
    described the prior offense as “possession of a controlled substance.” Further, Appellant
    affirmatively stated he had “no objection” to the admission of either the agreed stipulation or the
    judgment, despite the fact the judgment described the prior offense as “possession of controlled
    substance, to wit: heroin.”
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    We conclude that the trial court’s error, if any, in permitting the State to read the entire
    indictment was waived when Appellant affirmatively stated he had “no objection” to the
    judgment or the agreed stipulation, both of which described Appellant’s prior felony offense as
    “possession of a controlled substance.” Thomas v. State, 
    408 S.W.3d 877
    , 885-86 (Tex. Crim.
    App. 2013) (holding that where the record does not show whether an abandonment was intended
    or understood, a “no objection” statement is waiver of earlier-preserved error). Accordingly, we
    overrule Appellant’s second issue.
    CONCLUSION
    We affirm the trial court’s judgment.
    /David J. Schenck/
    DAVID J. SCHENCK
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47
    140887F.U05
    –6–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    MICALOSA BERNARD MCDANIEL,                          On Appeal from the Criminal District Court
    Appellant                                           No. 3, Dallas County, Texas
    Trial Court Cause No. F-1362016-J.
    No. 05-14-00887-CR        V.                        Opinion delivered by Justice Schenck.
    Justices Bridges and Lang participating.
    THE STATE OF TEXAS, Appellee
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 7th day of May, 2015.
    –7–