Court of Appeals of Texas, Fourth District, San Antonio
the 290th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CR3824 Honorable Melisa Skinner, Judge
Angelini, Marialyn Barnard, Luz Elena D. Chapa, Justice.
Marialyn Barnard, Justice.
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.
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.
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
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.
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.
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
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.
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.
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 ...