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Belle v. State

Court of Appeals of Texas, Fourteenth District

February 22, 2018

MICHAEL BELLE, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 15CR0003

          Panel consists of Chief Justice Frost and Justices Donovan and Wise. (Frost, C.J., dissenting.)

          MAJORITY OPINION

          John Donovan Justice

         Appellant Michael Belle brings this appeal, pro se, from his conviction for unlawful possession of a firearm by a felon.[1] Appellant pled true to two enhancement allegations and the jury sentenced him to twenty-eight years in prison. We affirm.

         Appellant's brief raises a number of issues.[2] We have addressed each issue that we have identified as being fairly included and have used appellant's nomenclature of the issues. See Tex. R. App. P. 38.1(f).

         Sufficiency of the Evidence

         In Part B of appellant's second issue he complains of the actions of the district attorney. In doing so, appellant argues the evidence is insufficient to support his conviction. Specifically, appellant argues that the State failed to prove beyond a reasonable doubt that he knowingly or intentionally possessed a firearm. As that is the only identifiable issue in part B upon which this court could grant relief, it is the only claim we address. Because this issue, if sustained, would result in rendition of a judgment of acquittal, we address it first. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.-Houston [14th Dist.] 2016, no pet); see also Tex. R. App. P. 47.1.

         When engaging in a review of the legal sufficiency of the evidence supporting a conviction, we "examine all of 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 offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Price v. State, 456 S.W.3d 342, 347 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). In conducting the review we consider all evidence presented to the jury, whether properly or improperly admitted at trial. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988).

         As the reviewing court, we may not substitute our judgment for that of the fact finder by re-evaluating weight and credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact-finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. Our duty as the reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

         Appellant was charged with intentionally and knowingly possessing a firearm more than five years after having been convicted of a felony at any location other than the premises at which he lived. See Tex. Penal Code § 46.04 (a)(2). The State introduced evidence the firearm was found in a pocket of the jacket appellant was wearing, while not at the premises at which he lived. Appellant asserts the evidence does not connect him to the actual care, custody, control, or management of the firearm.

         In cases involving possession of a firearm by a felon, we analyze the sufficiency of the evidence under the rules adopted for cases involving possession of a controlled substance. Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Accordingly, the State was required to prove that appellant knew of the weapon's existence and that he exercised actual care, custody, control, or management over it. Id. at 38. If the firearm is not found on the defendant, or if it is not in his exclusive possession, the State must offer additional, independent facts and circumstances affirmatively linking him to the firearm. Id.

         Officer Vasquez testified that when he began patting appellant down for a safety check, he located a firearm, a Ruger 9-millimeter, in a pocket of appellant's jacket. When Vasquez removed the firearm, appellant advised him "there was one in the chamber." Appellant explained to Vasquez how to safely remove the bullet in the chamber.

         According to appellant, the firearm was put in his jacket by his ex-girlfriend, Tekoa Scott, before he put the jacket on, and he was unaware of the firearm's presence in the jacket pocket. Appellant told the jury he was set-up by the police.

         The firearm was found on appellant and he was in exclusive possession of it. The jury was free to disbelieve appellant's version as to how the firearm came to be in his possession. Taking the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense charged, including knowledge and control over the firearm. We overrule part B of issue two.

         Issue One

         Part A

         Appellant complains of comments made by the trial court when appellant requested self-representation at trial. Appellant's brief contains no references to the record where such comments were made. See Tex. R. App. P. 38.1(i). Accordingly the issue is waived.

         Part B

         Appellant asserts the trial court abused its discretion by failing to remove his court-appointed counsel on August 19, 2015. The record reflects the trial court ultimately conducted a Spears[3] hearing, duly admonished appellant, and allowed him to represent himself. The trial court's adherence to the requisites of permitting a defendant to forego counsel does not constitute error. Part B is overruled.

         Part C

         Appellant argues the trial court abused its discretion in failing to hold a hearing on the following pre-trial motions: (1) to dismiss the indictment; (2) to suppress evidence; and (3) to exclude prior offenses. Appellant cites no authority in support of his argument. See Tex. R. App. P. 38.1(i). Accordingly the argument is waived. Appellant also complains the trial court abused its power by imposing co-counsel on him but fails to provide any citations to the record. See Tex. R. App. P. 38.1(i). Accordingly, the complaint is waived. Part C is overruled.

         Part D

         Appellant claims the trial court abused its discretion by giving his copy of the video of his arrest to the State. Appellant's brief contains no references to the record pertinent to his ...


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