Frank Dillard Proctor v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00184-CR

Frank Dillard Proctor,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
54th District Court of McLennan County, Texas
Judge Gary R. Coley, presiding
Trial Court Cause No. 2023-717-C2

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Frank Dillard Proctor was convicted of unlawful possession of a firearm

by a felon, see TEX. PENAL CODE § 46.04, and sentenced to 45 years in prison.

We affirm the trial court’s judgment.

BACKGROUND

911 dispatch received a call from Denise Rivera, reporting a domestic

disturbance at an apartment complex in Waco, Texas. During the call, Rivera
stated that Proctor had pointed a gun at her. Although Rivera told dispatch

that Proctor had run toward the park near the apartment complex to hide the

gun, she was afraid he was going to come back and shoot her. When police

arrived, they saw Proctor walking along a brick wall. The gun was later located

next to the wall about 10 feet from where Proctor was seen walking.

ADMISSION OF EVIDENCE

In his first issue, Proctor complains that the trial court erred in

admitting DNA evidence that was, he argues, misleading to the jury and was

compounded by the State’s argument on guilt/innocence. Proctor did not object

to the introduction of the evidence.

The Court of Criminal Appeals has consistently held that the failure to

object in a timely and specific manner during trial forfeits complaints about

the admissibility of evidence. Irsan v. State, 708 S.W.3d 584, 603 (Tex. Crim.

App. 2025); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). This

is true even if the error concerns the constitutional rights of the defendant. Id.

See also Cruz v. State, 698 S.W.3d 265, 268 (Tex. Crim. App. 2024).

Proctor acknowledges that he did not object but contends this type of

“error” is structural and should be reviewed under the “constitutional harmless

error standard” nonetheless. Structural errors are errors that defy analysis by

the harmless error standards. See Stredic v. State, 663 S.W.3d 646, 665 (Tex.

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Crim. App. 2022) (citing Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-1908,

198 L. Ed. 2d 420 (2017)). Fundamental errors, on the other hand, are errors

that do not require preservation to review on appeal. To gain appellate review

without an objection, the claim Proctor makes would need to be characterized

as fundamental error.

The Court of Criminal Appeals has enumerated the following

fundamental errors which do not require preservation to review: (1) denial of

the right to counsel; (2) denial of the right to a jury trial; (3) denial of appointed

counsel's right to ten days to prepare for trial; (4) absence of jurisdiction over

the defendant; (5) absence of subject-matter jurisdiction; (6) prosecution under

a penal statute that does not comply with the Separation of Powers section of

the Texas Constitution; (7) jury charge errors resulting in egregious harm;

(8) prosecution at a location other than the county seat; (9) prosecution under

an ex post facto law; and (10) comments by a trial judge which taint the

presumption of innocence. Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim.

App. 2002). Proctor’s complaint does not fall within any of these categories.

Accordingly, because Proctor did not object to the DNA evidence, his

complaint on appeal is not preserved for review.

Proctor’s first issue is overruled.

Proctor v. State Page 3
SUFFICIENCY OF THE EVIDENCE

Next, Proctor contends the evidence is insufficient to prove beyond a

reasonable doubt that what he possessed was, in fact, a firearm. 1

The Court of Criminal Appeals has expressed our standard of review of

a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the evidence in
the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017). This standard requires the appellate court
to defer "to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson,
443 U.S. at 319. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a
sufficiency review must not engage in a "divide and conquer"
strategy but must consider the cumulative force of all the evidence.
Villa, 514 S.W.3d at 232. Although juries may not speculate about
the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S.
at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the verdict, and
we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). This is because the jurors are the exclusive
judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial

1
Proctor does not challenge the possession element.

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evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

A firearm is defined as any 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. TEX. PENAL

CODE § 46.01(3). Proctor contends the evidence is insufficient because there

was no direct evidence that what he possessed was a working firearm.

Relevant Evidence

Rivera explained to the 911 dispatcher that Proctor had pointed a gun 2

at her and that he was running towards the park trying to hide it. She was

scared Proctor would return and shoot her. When officers arrived at the scene,

they were informed that Proctor had hidden a gun with gold on it outside the

apartment complex. A gun matching the description given was discovered

along a brick wall about 10 feet from where officers previously had seen Proctor

walking. The gun was identified as a “Glock 45.” Officers later discovered that

the gun found along the wall matched the description of a stolen gun, that

being: “a Glock, G-45 9 millimeter, semi-automatic handgun, black in color

2
The witnesses, Proctor, and the prosecutor used the term “gun” interchangeably with the term
“firearm.” We will use the term “gun,” throughout the opinion.

Proctor v. State Page 5
with a gold twisted barrel, a magazine release, and a gold plated magazine,

with a custom shape trigger[.]” The gun found also had the same serial number

as the stolen gun.

The gun in this case was introduced as a demonstrative exhibit for the

jury to view. Photographs of the gun were also introduced into evidence.

A crime scene investigator with the Waco Police Department, testified

as to how DNA evidence is collected from a gun and used the gun in this case

to demonstrate. One of the many tasks performed to process this gun was to

“function test” it to confirm the investigator could “fire it properly and safely,

and then test fire it.” When the investigator was asked if all the tasks to which

the investigator testified were performed in this case, the investigator

responded, “Yes, sir.”

Analysis

The State was not required to prove that the gun was operational at the

time of the offense to prove that it was a firearm. See, e.g., Walker v. State, 543

S.W.2d 634, 637 (Tex. Crim. App. 1976) (holding that an automatic pistol that

was "missing a firing pin and without a clip" at the time of the offense

constituted a firearm); Hutchings v. State, 333 S.W.3d 917, 922 (Tex. App.—

Texarkana 2011, pet. ref'd). Although no witness testified that the gun found

fit the definition of a firearm, the cumulative force of all incriminating

Proctor v. State Page 6
circumstances admitted during the trial was sufficient to establish the gun was

a firearm within the meaning of the statute. Ramsey v. State, 473 S.W.3d 805,

809 (Tex. Crim. App. 2015).

Accordingly, viewing the evidence in the light most favorable to the

verdict, the evidence is sufficient to support Proctor’s conviction.

His second issue is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s

judgment.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: August 21, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do Not Publish
CRPM

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