Robert Bruce Swapsy v. State , 562 S.W.3d 161 ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00042-CR
ROBERT BRUCE SWAPSY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court
Panola County, Texas
Trial Court No. 2017-C-0196
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
A Panola County jury found Robert Bruce Swapsy guilty of unlawful possession of a
firearm by a felon. The trial court sentenced Swapsy to eight years’ imprisonment and ordered
him to pay a $10,000.00 fine, but suspended the sentence in favor of placing Swapsy on community
supervision for five years. In his sole point of error on appeal, Swapsy argues that the evidence is
legally insufficient to sustain his conviction.
We find that legally sufficient evidence supports Swapsy’s conviction. However, we
modify the trial court’s judgment to correctly reflect that he was convicted by a jury and that there
was no plea bargain agreement. We affirm the trial court’s judgment, as modified.
I. Legally Sufficient Evidence Supports Swapsy’s Conviction
A. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review
focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J.,
concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving
deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,
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214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
Section 46.04 of the Texas Penal Code states, in relevant part,
A person who has been convicted of a felony commits an offense if he or she
possesses a firearm: . . .
after conviction and before the fifth anniversary of the person’s release from
confinement following conviction of the felony or the person’s release from
supervision under community supervision, parole, or mandatory
supervision, whichever date is later.
TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). Here, the State’s indictment alleged that
Swapsy, “having been convicted of the offense of Violate OP/Other Prior on the 21st day of June,
2012, in cause #12CR-5105 in the Circuit Court of Cook County, Illinois, intentionally and
knowingly possess[ed] a firearm before the fifth anniversary of the defendant[’s] release from
confinement following conviction of the felony.” Here, Swapsy argues only that the evidence was
insufficient to establish that he knowingly possessed the firearm.
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A. The Links Test
“Possession” is defined as “actual care, custody, control, or management.” TEX. PENAL
CODE ANN. § 1.07(a)(39) (West Supp. 2018). “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.” TEX. PENAL CODE ANN. § 6.01(b) (West
2001). To obtain a conviction for possession of a firearm, the State must show that the accused
not only exercised actual care, control, or custody of the firearm, but also that he was conscious of
his connection with it and that he possessed it knowingly. See Brown v. State, 911 S.W.2d 744,
747 (Tex. Crim. App. 1995); Smith v. State, 118 S.W.3d 838, 842 (Tex. App.—Texarkana 2003,
no pet.). “[E]vidence which affirmatively links him to it suffices for proof that he possessed it
knowingly.” Brown, 911 S.W.2d at 747. However, these affirmative links must demonstrate that
“the accused was aware of the object, knew what it was, and recognized his or her connection to
it.” Smith, 118 S.W.3d at 842 (citing Gill v. State, 57 S.W.3d 540, 544 (Tex. App.—Waco 2001,
no pet.)).
The evidence showing these links may be direct or circumstantial, but the evidence must
establish that the connection between the accused and the firearm is more than fortuitous. Davis
v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet. ref’d). Therefore, the mere
presence of the accused at the location where a firearm is found is not sufficient, in and of itself,
to establish his knowing possession. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.
2006). This rule protects the innocent bystander (such as a relative, friend, or even stranger to the
actual possessor) from conviction merely due to his fortuitous proximity to a firearm belonging to
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someone else. See id. However, the defendant’s presence or proximity to the weapon, combined
with other evidence, may be sufficient to establish this element. Id.
Certain factors, either alone or in combination, may be considered in deciding whether the
evidence is legally sufficient to circumstantially establish an accused’s knowing possession of a
firearm. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d); Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas 2004, no pet.); Smith, 118
S.W.3d at 842; Nguyen v. State, 54 S.W.3d 49, 53 (Tex. App.—Texarkana 2001, pet. ref’d),
overruled on other grounds by Fagan v. State, 362 S.W.3d 796 (Tex. App.—Texarkana 2012, pet.
ref’d).
These factors include: (1) the defendant’s presence when the search was
conducted, (2) whether the firearm was in plain view, (3) whether the defendant
was in close proximity to and had access to the firearm, (4) whether the defendant
had a special connection to the firearm, (5) whether the defendant possessed other
contraband when arrested, (6) whether the defendant made incriminating
statements when arrested, (7) whether the defendant attempted to flee, (8) whether
the defendant made furtive gestures, (9) whether the defendant owned or had the
right to possess the place where the firearm was found, (10) whether the place
where the firearm was found was enclosed, (11) whether conflicting statements on
relevant matters were given by the persons involved, and (12) whether the
defendant’s conduct indicated a consciousness of guilt.
Gordy v. State, No. 06-18-00057-CR, 2018 WL 447222, at *3 (Tex. App.––Texarkana Sept. 19,
2018, no pet. h.) (mem. op., not designated for publication).
“The absence of various links does not constitute evidence of innocence to be weighed
against the links present.” Williams v. State, 313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). Rather, it is the logical force of the links, rather than the number of links, that is
dispositive. Evans, 202 S.W.3d at 161–62; Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—
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Dallas 2005, pet. ref’d). Further, the links need not exclude every other reasonable hypothesis but
the defendant’s guilt. Brown, 911 S.W.2d at 748.
B. The Evidence at Trial
Jim Burkett, a special agent with the Texas Department of Public Safety’s Criminal
Investigation Division and Organized Crime Division, and David Barnett, a deputy with the
Harrison County Sheriff’s Office, travelled to Swapsy’s home during a random visit designed to
ensure that Swapsy was complying with sex-offender registration requirements. Burkett described
Swapsy and his girlfriend of nineteen years, Melody Merritt, as compliant and very polite. Burkett
testified that Swapsy and Merritt swiftly provided consent to search the home after they both
denied having any firearms in the home. Soon thereafter, Barnett found a loaded firearm in a bag
containing “a lot of bullets” of two different calibers in the bottom drawer of a nightstand situated
on the left side of the bed in the master bedroom. Only Swapsy and Merritt slept in that bedroom.
Burkett testified that the top drawer contained a man’s wallet with Swapsy’s expired
insurance card and public library card, Swapy’s pharmacy prescription, and a letter addressed to
him, which was postmarked three weeks before the search. Photographs of the scene confirmed
the contents of the nightstand, as well as Burkett’s testimony that the gun was found in the bottom
drawer among hats, baseball caps, toboggans, and “a brim type hat.” Burkett classified these items
as men’s clothing.
According to Burkett, Swapsy denied ownership of the gun or knowledge of its existence
in the house. Merritt immediately reported that she had inherited the gun from her father and
echoed that Swapsy knew nothing of it. According to Burkett, Swapsy also denied using the
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nightstand or having access to it. While Burkett described Swapsy as compliant and polite, he
testified, “[Swapsy] was evasive and I didn’t find his answers to be consistent with what was found
in . . . the drawers, once the firearm was found.” Burkett added that although Swapsy did not
exhibit any overt signs that he was hiding anything, he did not believe Swapsy’s denial of control
over the nightstand or his claim that he was unaware of the gun. Therefore, after verifying that
Swapsy was a convicted felon and that five years had not yet passed since his release, Burkett
arrested Swapsy for unlawful possession of a firearm.
Merritt testified in Swapsy’s defense at trial. She told the jury that she had inherited the
gun from her father and had never told Swapsy about the weapon. Merritt said that officers had
seen a BB gun in plain sight on top of the dresser and that although she had told the police about
the BB gun, she lied about having other firearms in the house. When questioned about the contents
of the bottom drawer of the nightstand, Merritt admitted that some of the hats belonged to Swapsy,
but explained that she had stored them and that Swapsy had “not been in that drawer,” even though
he wore some of the hats on rare occasions. Merritt further stated that Swapsy kept all of his
clothes (including the vast majority of hats worn by him) in “a little den area that we call the man
cave.” 1 Initially, when asked whether Swapsy had opened the bottom drawer, Merritt replied,
“Maybe -- the bottom drawer, no. The top one, yes.” She later testified that Swapsy had opened
the bottom drawer but opined that he was unaware of the gun because he had never discussed the
firearm with her.
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Burkett testified that there was another bedroom that did not appear to be lived in which contained Swapsy’s storage.
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Merritt was then questioned about the other contents on or in the nightstand. She testified
that her electronic tablet, which Swapsy sometimes used, was on top of the nightstand. According
to Merritt, the top drawer contained jewelry belonging to both of them, Swapsy’s old wallet, and
his expired insurance card and library card. Merritt said that she had placed the letter addressed
to Swapsy in the nightstand so he could find it easily. She testified, “When I have back problems,
I sleep on the side of the bed where they found the gun, which is his side.” While she admitted
that the nightstand was on Swapsy’s side of the bed, Merritt claimed that she had been sleeping on
that side at the time the gun was found.
Critically, Merritt testified she had wrapped the gun in a white towel before placing it
underneath the hats in the bottom drawer. After Merritt’s statement, Barnett was recalled to testify
and stated that the gun had not been wrapped in a towel when he discovered it. Barnett explained
that he would have noticed a white towel wrapped around the weapon and would have reported it.
He further drew the jury’s attention to the fact that there were no towels in the photographs taken
of the contents of the nightstand.
C. Analysis
The State need not prove the accused had exclusive possession of the firearm; joint
possession is sufficient to sustain a conviction. Greer v. State, 436 S.W.3d 1, 5 (Tex. App.—Waco
2014, no pet.). Here, Swapsy points to his denial of any connection with the firearm, Merritt’s
testimony that he did not know about the gun, and Burkett’s testimony that he did not make any
furtive gestures, incriminating statements, attempts to flee, or other gestures indicating a
consciousness of guilt.
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However, the firearm was found in the nightstand in Swapsy’s bedroom located beside
what was normally Swapsy’s side of the bed. Merritt testified that the nightstand, including the
bottom drawer where the gun was found, contained several items that belonged to Swapsy. Even
though Merritt initially testified that Swapsy had not accessed the drawer, there was no evidence
indicating that the drawer was locked, and she later conceded that he had opened it. This suggested
that Swapsy had access to the firearm.
We find that the evidence established, at a minimum, links 1, 3, and 10 between Swapsy
and the gun recovered during the search. More importantly, we find that the logical force of these
links, taken together, had a strong tendency to connect Swapsy to the firearm and established that
Swapsy’s connection with the firearm was more than just fortuitous.
Moreover, Merritt’s testimony and Swapsy’s denial of possession of the weapon required
a resolution of conflicting evidence, as well as an evaluation of witness credibility and the weight
to be given to their testimony. These are functions left to the jury’s sole discretion. See Cain v.
State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). Merritt claimed that she had wrapped the
gun in a white towel before concealing it in the bottom drawer of the nightstand, but Barnett
testified that there was no towel around the gun when it was found. This discovery placed Merritt’s
credibility into question and supported a rational inference that the towel could have been removed
by Swapsy, since only he and Merritt shared the drawer. Accordingly, the jury was free to reject
Merritt’s testimony, as well as Swapsy’s denial of knowledge of and access to the gun.
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We find that legally sufficient evidence supported the jury’s finding that Swapsy
committed the offense of felon in possession of a firearm. We overrule Swapsy’s sole point of
error.
II. The Judgment Must Be Modified
The trial court’s judgment incorrectly reflects that the conviction was the result of a bench
trial and that the sentence was a result of a plea bargain agreement. Yet, the appellate record
establishes that Swapsy was convicted by a jury and that his sentence was the not the result of a
plea bargain. We have the authority to modify the judgment to make the record speak the truth.
TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v.
State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Accordingly, we modify the
trial court’s judgment to reflect that Swapsy was convicted by a jury and that there was no plea
bargain agreement.
III. Conclusion
We modify the trial court’s judgment (1) to reflect that Swapsy was convicted by a jury
and (2) by removing the reference that Swapsy’s sentence was the result of a plea bargain
agreement. As modified, we affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: October 4, 2018
Date Decided: October 11, 2018
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