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Harris v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 26, 2017

Demoria HARRIS, Appellant
v.
The STATE of Texas, Appellee

         From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR3824 Honorable Melisa Skinner, Judge Presiding

          Karen Angelini, Marialyn Barnard, Luz Elena D. Chapa, Justice.

          OPINION

          Marialyn Barnard, Justice.

         A jury convicted appellant Demoria Harris of unlawful possession of a firearm by a felon. After the trial court found an enhancement paragraph true, it sentenced Harris to fifteen years' confinement. On appeal, Harris contends the evidence is legally insufficient to prove the offense. Because we hold the evidence is legally insufficient to prove Harris possessed the firearm, we reverse the trial court's judgment and render a judgment of acquittal.

         Background

         Officer Jose Rafael Davila, a police officer with the Castle Hills Police Department, pulled over THE driver of a vehicle in the early morning hours for "failure to stop at a designated point, " which is a traffic violation. The officer explained to the driver the vehicle was illegally stopped in the crosswalk at a red light on the frontage road of Loop 410 and Blanco. According to the officer, the driver should have stopped the vehicle behind the designated crosswalk.

         After pulling over the vehicle, Officer Davila spoke to the driver. At that time, the officer stated he "detected an odor of marijuana coming out of the car." He contacted dispatch for additional officers as "cover." After the cover officers arrived, Officer Davila explained to the driver, who had been asked to step out of the vehicle, that based on the smell of marijuana he had probable cause to search the vehicle. According to Officer Davila, the driver was "calm, collected."

         Officer Davila then spoke to Harris, who was the passenger in the vehicle and still seated therein, and advised him the vehicle was going to be searched. Harris was asked to step out of the vehicle and both Harris and the driver were handcuffed and placed in front of Officer Davila's patrol car. Officer Davila then searched the vehicle.

         Officer Davila testified that during the search he found either a "duffle bag or a backpack" on the passenger side of the vehicle and the bag contained a loaded handgun - a .40 caliber Glock 22 pistol with a drum. Officer Davila also found a handgun under the driver's seat. The officer testified he also discovered "shake" on the floorboard of the vehicle. He described "shake" as "bits and pieces of marijuana, " like you would see if you "crumbled" a cigarette.

         After checking Harris's background and learning about his prior felony conviction, Officer Davila arrested Harris for the offense of felon in possession of a firearm. A jury convicted Harris of the charged offense and after finding an enhancement paragraph true, the trial court sentenced him to fifteen years' confinement. Harris then perfected this appeal.

         Analysis

         As previously noted, Harris was charged with unlawful possession of a firearm by a felon. Harris does not dispute he is a felon or that the alleged firearm possession occurred before the fifth anniversary of his release from confinement or supervision. Rather, in his sole appellate issue, Harris contends the evidence is legally insufficient to prove he intentionally or knowingly possessed a firearm.

         Standard of Review

         In determining whether the evidence is legally sufficient to support a conviction, the reviewing court must consider "the combined and cumulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt." Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Huff v. State, 467 S.W.3d 11, 19 (Tex. App.-San Antonio 2015, pet. ref'd). In a sufficiency review, direct evidence and circumstantial evidence are equally probative. Tate, 500 S.W.3d at 413 (citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013)). Circumstantial evidence alone may be sufficient to uphold a conviction as long as the cumulative force of such evidence is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809-10 (Tex. Crim. App. 2015) (citing Winfrey, 393 S.W.3d at 771; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

         The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses, and we may not substitute our judgment for that of the jury. Huff, 467 S.W.3d at 19- 20 (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). As the sole judge of a witness's credibility and the weight to be given such testimony, the jury may choose to believe all, none, or any part of a witness's testimony, even if such testimony is contradicted. Rivera v. State, 507 S.W.3d 844, 853-54 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)); Dossett v. State, 216 S.W.3d 7, 31 (Tex. App.-San Antonio 2006, pet. ref'd) (same). Moreover, juries are entitled to draw multiple reasonable inferences from the facts as long as the evidence supports each inference. Tate, 500 S.W.3d at 413 (citing Jackson, 443 U.S. at 319); see Hooper, 214 S.W.3d at 16-17. However, a jury may not draw conclusions based on pure speculation. Tate, 500 S.W.3d at 413 (citing Hooper, 214 S.W.3d at 16). Speculation, unlike a reasonable inference, is not sufficiently based on the evidence to support a ...


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