Rodnirich Luke v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00199-CR
RODNIRICH LUKE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2017-411,657, Honorable John J. “Trey” McClendon III, Presiding
October 19, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Rodnirich Luke appeals from his conviction by jury of the offense of
unlawful possession of a firearm1 and the resulting court-imposed sentence of forty-five
1 TEX. PENAL CODE ANN. § 46.04(a) (West 2018).
years of imprisonment.2 On appeal, appellant contends the evidence was insufficient to
support his conviction. We will affirm.
Background
Appellant’s prosecution followed several vehicle burglaries that occurred within a
ten-city-block area of Lubbock over a particular night in the fall of 2016. The victims of
the burglaries reported to police items stolen from their vehicles overnight. During their
investigation, police linked to the crimes a gold Hyundai Elantra with a dent on the back
passenger-side bumper. Officers saw appellant driving a car matching that description
the day after the burglaries. Officers attempted to stop appellant. Two other men were
also in the car. One was seated in the front passenger seat and the other, in the back.
Appellant evaded police and then jumped out of the car while it was still in motion and
ran. Police detained and arrested appellant. The other two men did not flee and also
were arrested.
Among the items officers found in the Hyundai was an unloaded firearm, a Colt
Delta Elite, belonging to Johnny Davis, one of the car-burglary victims. The pistol was
found in a laptop bag, along with a laptop computer, in the rear driver’s side floorboard.
The laptop bag and computer belonged to another of the burglary victims. Credit cards
belonging to Davis were found in a Walmart bag in the driver’s side floorboard. The State
also presented evidence, including surveillance videos from Walmart and other stores,
2This is a third-degree felony offense. Appellant pled “true” to two enhancement
provisions in the indictment, elevating his punishment to that of a first-degree felony. TEX.
PENAL CODE ANN. §§ 12.34; 12.42 (West 2018).
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showing appellant purchased items using other credit cards stolen during the burglaries.
Appellant made his first purchase with one of the stolen cards at 6:12 on the morning
after the burglaries. The purchased items were also found in the Hyundai.
Analysis
From the background we have related, appellant was charged with unlawful
possession of a firearm by a felon. In this Court, he challenges only the State’s evidence
supporting his knowing and intentional possession of the firearm found in the laptop bag
in the Hyundai he was driving.
We review the sufficiency of the evidence under the standard set forth in Jackson
v. Virginia. 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.
Crim. App. 2010) (plurality op.). Under that standard, a reviewing court must consider all
the evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citations omitted).
The jury is the sole judge of the weight and credibility of the evidence and we
presume the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The jury
is entitled to draw reasonable inferences from basic facts to ultimate facts. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We determine whether, based on the
evidence and reasonable inferences drawn therefrom, a rational juror could have found
the essential elements of the crime beyond a reasonable doubt. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
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A person who has been convicted of a felony commits an offense of unlawful
possession of a firearm if he possesses a firearm after conviction and before the fifth
anniversary of his release from confinement following conviction of the felony or his
release from supervision under community supervision, parole, or mandatory supervision,
whichever date is later or, after the five-year period, at any location other than the
premises at which the person lives. TEX. PENAL CODE ANN. § 46.04(a). “Possession
means actual care, custody, control, or management.” TEX. PENAL CODE ANN.
§ 1.07(a)(39). A person commits a possession offense only if he voluntarily possesses
the proscribed item. TEX. PENAL CODE ANN. § 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.” TEX. PENAL CODE
ANN. § 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.” Hodges v. State,
No. 05-16-00647-CR, 2017 Tex. App. LEXIS 5109, at *7 (Tex. App.—Dallas June 1,
2017, pet. ref’d) (mem. op., not designated for publication) (citations omitted). Thus, the
State must prove the accused exercised actual care, control, or custody of the firearm;
he was conscious of his connection with it; and he possessed the firearm knowingly or
intentionally. Id. (citation omitted). “Intent can be inferred from the acts, words, and
conduct of the accused.” Jones v. State, Nos. 03-17-00720-00721-CR, 2018 Tex. App.
LEXIS 3869, at *14 (Tex. App.—Austin May 31, 2018, pet. ref’d) (mem. op., not
designated for publication) (citation omitted). Direct or circumstantial evidence may be
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used to prove possession but appellant’s connection with the firearm must be more than
“merely fortuitous.” Davis v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002,
pet. ref’d).
The State was not required to show appellant had exclusive possession of the
firearm because joint possession is sufficient to sustain a conviction. Smith v. State, 176
S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d) (citing Cude v. State, 716 S.W.2d
46, 47 (Tex. Crim. App. 1986) (possession of controlled substance)). When there is no
evidence the actor was in exclusive control of the place where the firearm was found, as
was the situation here, the State must offer additional, independent facts and
circumstances affirmatively linking him to the firearm. Id. (citing Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005) (involving possession of controlled substance));
Grantham v. State, 116 S.W.3d 136, 143 (Tex. App.—Tyler, pet. ref’d) (involving
possession of firearms). “[E]vidence which affirmatively links [a defendant] to [the firearm]
suffices for proof that he possessed it knowingly.” Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995).
Courts have identified several factors that may be considered to determine
whether a defendant is sufficiently linked to a firearm found in a vehicle. See James v.
State, 264 S.W.3d 215, 218-19 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citations
omitted); Auvenshine v. State, Nos. 07-15-00251-CR, 07-15-00253-CR, 07-15-00254-
CR, 07-15-00255-CR, 2016 Tex. App. LEXIS 3392, at *11 (Tex. App.—Amarillo Mar. 31,
2016, no pet.) (mem. op., not designated for publication) (citations omitted) (both setting
forth factors). No set formula of facts exists, however, to dictate a finding of links sufficient
to support an inference of knowing possession of contraband. Greer v. State, 436 S.W.3d
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1, 5 (Tex. App.—Waco 2014, no pet.) (citation omitted). It is the “logical force” of the
factors, not the number of factors present, that determines whether the elements of the
offense have been established. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.
2006); Favela v. State, No. 03-12-00307-CR, 2013 Tex. App. LEXIS 5691, at *9 (Tex.
App.—Austin May 8, 2013, pet. ref’d) (mem. op., not designated for publication) (citation
omitted). And, “the absence of certain links is not 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).
Viewing the evidence in the light most favorable to the jury’s verdict, and applying
the requisite links analysis, we find the evidence sufficient. While the record contains no
affirmative direct evidence that appellant was the person who stole Davis’s pistol or that
he was the person who placed the firearm in the laptop bag, the record does contain
several significant facts linking him to the firearm and establishing he knowingly
possessed it.
In a case we find helpful, the Court of Criminal Appeals evaluated the sufficiency
of evidence the defendant possessed a firearm after guns were stolen in a home burglary.
Rollerson v. State, 227 S.W.3d 718, 726-27 (Tex. Crim. App. 2007). He had been found
in possession of coins stolen in the same burglary, and the court held that evidence,
coupled with other evidence including the fact the stolen guns had been in a back room
of his mother’s house, was sufficient to sustain his conviction for stealing the guns during
the same burglary, if only as a party. Id. at 727.
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The court of appeals had held that the same evidence necessarily proved that he
had “possessed a firearm at one point.” The high court disagreed with that conclusion,
stating, “In theory, it might be possible that [the defendant] never actually touched [a]
handgun. If other persons in fact participated in the burglary of [the] home, it is possible
that they, rather than [the defendant] handled the guns and carried [the] handgun to [the
defendant’s] mother’s home and deposited it [there].” Id. at 727. The court concluded
that the defendant’s possible party liability to the theft of the firearm could not sustain his
conviction for felon in possession of a firearm, “absent evidence that he knew of the
existence of the firearm and exercised control over it.” Id.
Continuing its analysis, the court stated, “While there is no affirmative evidence
that appellant physically placed the guns in the back room of his mother’s house, there is
no affirmative evidence that any of the other possible suspects did either. And those guns
were in appellant’s mother’s house, not the home of any other possible suspect.” The
court went on to hold that substantial circumstantial evidence affirmatively linked
appellant to the stolen guns, sufficiently supporting a finding he knew of the existence of
the firearms stolen from the home and exercised control over at least one of them. Id.
Although no burglary conviction is involved in the case before us, we find the
court’s analysis of the firearm possession charge in Rollerson instructive. As with the
coins in Rollerson, the evidence here shows appellant in possession of Davis’s credit
cards stolen from the same car as the pistol. Someone removed the pistol from Davis’s
car and someone put it in the laptop bag taken from another car. Similar to the
circumstance in Rollerson, it is possible in theory that one of appellant’s comrades in the
Hyundai, or some other person not present with them (we have no evidence how many
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persons participated in the burglaries), handled the pistol without appellant’s knowledge
or control. And, favorable to appellant’s argument here, the pistol when found was
concealed in the laptop bag, allowing appellant to posit that he had no knowledge even
of its presence in the bag. On the other hand, unfavorable to appellant’s argument, the
pistol was located in the car appellant was driving,3 not at some other location like the
back room of someone’s home. And the laptop bag was located behind the driver’s seat.
But, we think most tellingly, the pistol was taken from Davis’s car, along with Davis’s credit
cards. And it is appellant, not any other possible suspect, who had Davis’s credit cards
in a Walmart bag at his feet in the driver’s side floorboard, and appellant, not any other
possible suspect, who attempted to use Davis’s card. We think the links connecting
appellant with the pistol are at least as strong as those present in Rollerson. See Favela,
2013 Tex. App. LEXIS 5691, at *9-10 (finding that although there was another passenger
in the car who might also have exercised control over the gun, appellant “had ready
access to it.”)
Lastly, we note appellant attempted to flee from police both by car and on foot,
indicating consciousness of guilt. The two men in the car with appellant did not attempt
to flee. Appellant led police on a foot pursuit that lasted nearly fifteen minutes. Police
officers, and a trained K-9, searched for appellant through alleys, backyards, and storage
sheds. Appellant was finally found under a travel trailer. See Favela, 2013 Tex. App.
LEXIS 5691, at *9-10 (appellant attempted to flee, “indicating consciousness of guilt”).
See Smith v. State, 118 S.W.3d 838, 843 (Tex. App.—Texarkana 2003, no pet.) (finding
jury could have concluded defendant’s flight from deputy indicated consciousness of
3 Appellant did not own the car. It belonged to the mother of the front passenger.
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guilt). Appellant argues he had more than one reason to flee, specifically his possession
and use of the stolen credit cards. But the finder of fact was free to consider the evidence
of flight as a consciousness of guilt in determining the sufficiency of the evidence to
support the offense for which appellant was convicted, not some other offense. Clayton
v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).
Appellant also argues the State did not show any attempt to find fingerprints on
Davis’s vehicle or the gun even though the State’s first witness testified about fingerprints.
The law does not require that the State present fingerprint evidence to support a
conviction. See, e.g., Pena v. State, 441 S.W.3d 635, 641-42 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). Appellant also cites Young v. State, 752 S.W.2d 137, 141 (Tex.
App.—Dallas 1988, pet. ref’d) in which the court concluded the cumulative force of all of
the incriminating circumstances excluded every other reasonable hypothesis. The State
did not have the burden to exclude every reasonable hypothesis other than appellant’s
guilt. Geesa v. State, 820 S.W.2d 154, 159-61 (Tex. Crim. App. 1991), overruled in part
on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The “link
between the defendant and the contraband need not be so strong that it excludes every
other outstanding reasonable hypothesis except the defendant’s guilt.” Nwaogu v. State,
Nos. 01-11-00597-CR, 01-11-00598-CR, 2013 Tex. App. LEXIS 4588, at *21 (Tex.
App.—Houston [1st Dist.] Apr. 11, 2013, pet. ref’d) (citing Brown, 911 S.W.2d at 747).
For those reasons, we do not agree with appellant’s contentions.
Based on the evidence before it, we find the jury could have determined beyond a
reasonable doubt that appellant intentionally and knowingly possessed the firearm found
in the car he was driving.
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We overrule appellant’s issue.
Conclusion
Having resolved appellant’s sole issue against him, we affirm the judgment of the
trial court.
James T. Campbell
Justice
Do not publish.
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