Tony Lamar Jackson v. State ( 2009 )

Affirmed and Memorandum Opinion filed September 10, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00608-CR

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TONY LAMAR JACKSON, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 241st District Court

Smith County, Texas

Trial Court Cause No. 241-1241-07

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Tony Lamar Jackson, of unlawful possession of a firearm by a felon.  On appeal, he presents two issues for our review.  In the first issue, he argues the trial court erred in excluding mitigating evidence during the punishment phase.  In the second issue, appellant challenges the legal and factual sufficiency of the evidence supporting the conviction.  Finding no reversible error in the issues presented, we affirm.

Background

Appellant was previously convicted of the felony offenses of unlawful possession of a short-barreled firearm and aggravated assault.  On April 30, 2007, witnesses at a nearby home contacted police after they saw him fire a gun from his front porch.  When officers arrived at appellant=s home, they discovered a gun on his porch, and they arrested him after he admitted that he had fired the gun.

Appellant was indicted for unlawful possession of a firearm by a felon.  See Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2008). Following a motion by defense counsel and examination of appellant by a psychiatrist, the State and the defense agreed to a finding of appellant=s incompetency to stand trial.  On September 20, 2007, the court ordered appellant=s commitment to the North Texas State Hospital for a period not to exceed 120 days.

Following treatment at the Hospital, the trial court determined that appellant was competent to stand trial, and the jury ultimately convicted him of unlawful possession of a firearm by a felon.  Prior to the punishment phase and outside the presence of the jury, the trial judge indicated that appellant would not be allowed to introduce evidence relative to the proceedings to determine his competency to stand trial.  The trial court, however, otherwise permitted appellant to testify about his mental illness and related treatment he received in the past.  Significantly, defense counsel did not object or otherwise attempt to introduce evidence related to the competency proceedings.  The jury sentenced him to twenty years= confinement.^[1]

In two issues presented on appeal, appellant argues that the trial court improperly excluded evidence of his recent mental health treatment during the punishment phase, and that the evidence is legally and factually insufficient to support the conviction.

Analysis

Exclusion of Evidence at Punishment

In the first issue, appellant argues the trial court erred in excluding evidence related to the competency proceedings.  Appellant claims the trial court deprived him of the opportunity to present evidence of his treatment at the North Texas State Hospital as a mitigating factor at punishment.

Generally, we review a trial court=s admission or exclusion of evidence for an abuse of discretion.  See Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996); Isenhower v. State, 261 S.W.3d 168, 178 (Tex. App.CHouston [14th Dist.] 2008, no pet.). We will not disturb a trial court=s evidentiary ruling unless it was so clearly wrong as to lie outside the zone of reasonable disagreement.  See Hartis v. State, 183 S.W.3d 793, 801B02 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

In this case, the trial court=s indication that it would not  allow testimony related to the competency proceedings did not relieve appellant of the responsibility to at least make an offer of proof of the evidence that he sought to present to the jury and obtain a ruling from the trial court.  See Tex. R. Evid. 103(a)(2); Fuller v. State, 827 S.W.2d 919, 929 (Tex. Crim. App. 1992).  Because appellant failed to make an appropriate offer of proof and otherwise obtain a ruling excluding the evidence, appellant=s argument has not been preserved for our review.  See Fuller, 827 S.W.2d at 929.  Consequently, we overrule appellant=s first issue.

Legal and Factual Sufficiency

In his second issue, appellant argues that the evidence presented at trial was legally and factually insufficient to support the conviction.  Specifically, appellant claims that the State presented no evidence indicating that the weapon appellant was accused of possessing actually qualified as a Afirearm@ under the statutory definition.

The standards of review for legal and factual sufficiency are well-known.  In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we must view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). 

When conducting a factual sufficiency review, we review the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We determine whether (1) the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ or (2) considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Id. at 414B15.

A person who has been convicted of a felony commits an offense if he possesses a firearm before the fifth anniversary of his release from confinement or supervision, including parole.  Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2008).  A firearm is defined as Aany device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.@  Id. ' 46.01(3).

Appellant does not challenge the sufficiency of the evidence establishing his prior felony conviction or the evidence demonstrating that he was on parole for that offense at the time of his arrest.  Instead, he contends only that the evidence presented at trial was both legally and factually insufficient to establish that he possessed a Afirearm,@ as defined by section 46.01. We disagree.

Appellant admitted that he fired a gun both to the officers when they arrived at his home and again on the witness stand during the guilt phase of trial.  Another witness testified that he saw appellant fire a rifle from his front porch. Officers Larry Christian and Tom Whitworth testified that they were dispatched to appellant=s home because of a call reporting the alleged gun shot, and when the officers arrived, they located a shotgun on appellant=s front porch.

Reasonable inferences that a firearm was utilized fall within the sole purview of the jury.  See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  Thus, evidence may be sufficient for a rational jury to conclude that a Afirearm@ was used when only a Agun@ is mentioned at trial.  Carter v. State, 946 S.W.2d 507, 511 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (concluding testimony that defendant used a gun was sufficient to prove he used a firearm as charged in the indictment); see also Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (holding A[t]estimony using any of the terms >gun,= >pistol,= or >revolver= is sufficient to authorize the jury to find that a deadly weapon was used@ in an aggravated robbery).  Here, appellant concedes in his brief that the weapon he is accused of possessing is described as a Arifle,@ Ashotgun,@ and Afirearm@ at various points throughout the trial record.  Thus, the jury could have easily determined from the evidence presented that appellant possessed a firearm as defined by the code.^[2]

We conclude that the evidence presented at trial, viewed in a light most favorable to the verdict, is sufficient for a rational trier of fact to have found that appellant possessed a firearm.  See Carter, 946 S.W.2d at 511.  Likewise, when viewed in a neutral light, the evidence is not so weak, or so outweighed by contrary evidence, as to render the verdict clearly wrong and manifestly unjust.  Appellant=s second issue is overruled. 

Conclusion

Accordingly, the judgment of the trial court is affirmed.

/s/        Kent C. Sullivan

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           Appellant was prosecuted for unlawful possession of a firearm by a felon, a third-degree felony.  See Tex. Penal Code Ann. ' 46.04 (Vernon Supp. 2008).  However, the indictment alleged a prior felony as an enhancement, making the offense punishable as a second-degree felony.  See Tex. Penal Code Ann. ' 12.42(a)(3) (Vernon Supp. 2008).  Appellant=s punishment falls within the statutory range for a second-degree felony.  See Tex. Penal Code Ann. ' 12.33 (Vernon 2003). 

^[2]           Despite appellant=s suggestion to the contrary, expert testimony is not required on the issue of what constitutes a Afirearm.@  This is a subject well within the knowledge and experience of ordinary persons; there is noAspecialized knowledge@ needed to assist the trier of fact.  See Tex. R. Evid. 702; Holloway v. State, 613 S.W.2d 497, 500B01 (Tex. Crim. App. 1981).