Gay Lane Gilbert v. State ( 2010 )

Opinion published April 22, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00351-CR

GAY LANE GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1164768

MEMORANDUM OPINION

Appellant, Gay Lane Gilbert, pursuant to a plea agreement with the State, pleaded guilty to the state jail felony offense of fraudulent use or possession of identifying information.[1] The trial court sentenced appellant to two years confinement, suspended the sentence, and placed her on community supervision for two years.  The State subsequently moved to revoke community supervision, two conditions of which required appellant to “commit no offense against the laws of this or any State” and forbade her to “be in possession of any firearms.”  In two issues, appellant contends that the evidence is legally and factually insufficient to support the trial court’s revocation of community supervision.

          We affirm.

Background

In its motion to revoke community supervision, the State alleged that appellant had violated several conditions of her community supervision, including unlawfully possessing a firearm.[2] 

At the hearing on the State’s motion, Houston Police Department Officer A. Blomberg testified that on November 18, 2008, he drove to an apartment located on South Drive in Houston to execute an arrest warrant for appellant for the offense of fraud.  When he arrived, he knocked on the door, and appellant’s 18-year old son answered and said that appellant was not there.  Blomberg asked appellant’s son if he could “make sure [appellant] wasn’t there, there was a felony warrant,” and her son agreed.  Inside the apartment, Blomberg found “a bunch of prescription bottles” in appellant’s name on the nightstand next to the bed in a bedroom that the son told Blomberg was “his mom’s bedroom.”  Blomberg opened the door to the walk-in closet inside the bedroom and saw “two pump action shotguns.” 

Alicia Ibarra, the court liaison officer for the 248th District Court, testified that appellant’s current address on file with the court was on Quail Meadow in Missouri City, Texas.  Lindsey Sidney, appellant’s adult daughter, testified that her family had lived at the Quail Meadow address while she was growing up and appellant was still living there on November 18, 2008.  On cross-examination, Sidney admitted that she had not lived at the Quail Meadow address since 2003 and made only infrequent visits to Houston.

Appellant testified that she had lived at the Quail Meadow address since before she was placed on probation and the South Drive apartment was her half-brother’s residence.  On cross-examination, appellant denied that she lived at the apartment but admitted that she had “spent a couple of weekends there briefly” and her medications were in the bedroom because she had visited her half-brother on “several occasions.”

At the close of the hearing, the trial court found that appellant had violated several conditions of her community supervision by “committing an offense against the state of Texas, failure to avoid vicious or injurious habits, failure to pay supervision fee, failure to pay fine & court costs, failure to pay laboratory fee, failure to pay/obtain offender ID card, failure to pay Crime Stoppers, failure to pay Children’s Assessment Center, [and] failure to pay Assessment fee.”

Standard of Review

          In a community supervision revocation hearing, the State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of community supervision.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of her probation as the State alleged.  Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  The trial judge is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given their testimony.  Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Amado v. State, 983 S.W.2d 330, 332 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).  Proof of a single violation is sufficient to support a revocation.  Akbar, 190 S.W.3d at 123. Appellate review of a trial court’s order revoking community supervision is limited to determining whether the trial court abused its discretion.  Id. at 122.  We examine the evidence in the light most favorable to the trial court’s order.  Id. at 123 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)).

Legal and Factual Sufficiency

          In her two issues, appellant argues that the evidence is legally and factually insufficient to support revocation of her community supervision because the evidence does not affirmatively link her to the firearms found in the closet.[3]

First, we note that a factual sufficiency review, as urged by appellant, is inapplicable to revocation proceedings.  Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.—El Paso 2000, no pet.).  Instead, we review the evidence in the light most favorable to the trial court’s order to determine whether the State proved, by a preponderance of the evidence, that appellant had violated the terms of her community supervision by possessing a firearm.

To prove unlawful possession of a firearm, the State had to present evidence that appellant possessed a firearm.  See Tex. Penal Code Ann. § 46.04(a)(1) (Vernon Supp. 2009).  Possession means “actual care, custody, control, or management.” Id. § 1.07(a)(39) (Vernon Supp. 2009).  “Possession” is a “voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of [her] control of the thing for a sufficient time to permit [her] to terminate [her] control.”  Id. § 6.01(b) (Vernon 2003).  When, as here, the accused is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must “link” the accused to the contraband “in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.”  Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).  The evidence used to prove possession can be direct or circumstantial, and in either case, the State must establish that the defendant’s connection with the contraband was “more than just fortuitous.”  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

Among the many possible factors that we may consider in deciding whether there is a link between a defendant and contraband are whether (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the place where the contraband was found was enclosed; and (5) the size of the item was large enough to indicate the defendant’s knowledge of its existence.  Cole v. State, 194 S.W.3d 538, 548–49 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)); Robles v. State, 104 S.W.3d 649, 651 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  The number of linking factors present is not as important as the “logical force” they create to prove that an offense was committed.  Roberson, 80 S.W.3d at 735. However, the absence of various links does not constitute evidence of innocence to be weighed against the links present.  Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

Officer Blomberg found on the bedside table in a bedroom, which appellant’s son identified as appellant’s room, numerous prescription bottles belonging to appellant. Appellant’s name was written on the labels of these bottles.  Though not in plain view, the two large shotguns were found in the walk-in closet within appellant’s bedroom, making them conveniently accessible to her.  Moreover, the trial court was free to disbelieve the testimony of appellant and her daughter that appellant did not live at the apartment. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (fact-finder is “sole judge of a witness’s credibility” and “may choose to believe some testimony and disbelieve other testimony”). 

Viewing all of the evidence in the light most favorable to the order of the trial court, we hold that the evidence is sufficient to prove by a preponderance of the evidence that appellant knowingly exercised “actual care, custody, control, or management” over the shotguns.  Accordingly, we further hold that the trial court did not err in revoking appellant’s community supervision.

We overrule appellant’s two issues.

Conclusion

          We affirm the judgment of the trial court.

                                                                             Terry Jennings

                                                                             Justice

Panel consists of Justices Jennings, Hanks, and Bland

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. §§ 32.51(b)(1), (c)(1) (Vernon Supp. 2009).

[2]           See id. § 46.04 (a)(1) (Vernon Supp. 2009).

[3]           The trial court, in its order revoking appellant’s community supervision, found that that appellant violated the terms of her supervision in all of the ways alleged by the State.  However, the trial court received evidence only regarding the possession of firearms allegation.  No exhibits or other evidence regarding the State’s other grounds are included in the record.  On appeal, appellant challenges only the firearms ground, and the State responds only to this ground.  Neither side acknowledges that the trial court’s order recites multiple grounds for revoking community supervision.