Brett Johnson v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00197-CR

BRETT JOHNSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. DC-2021-CR-0113, Honorable Douglas H. Freitag, Presiding

November 8, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Brett Johnson, was convicted of the offense of felon in possession of a

firearm1 and sentenced to incarceration for eighty-five years. From this judgment,

Appellant appeals.

1 See TEX. PENAL CODE ANN. § 46.04(a).
BACKGROUND

In the mid-afternoon of July 10, 2021, Lubbock Police Department officers were

dispatched to an area near 34th Street and Avenue V in Lubbock based on 9-1-1 calls

indicating that a man was in that area threatening people with a firearm and that he had

fired shots. Corporal Brock Gruner arrived at the location and observed an individual who

matched the description of the suspect given by the 9-1-1 callers. Gruner approached

the suspect in his vehicle and activated the vehicle’s overhead lights. The suspect, who

was digging his hand into a purse he was carrying, began to run through a parking lot and

into an alley. Gruner pursued the suspect. In the alley, the suspect slipped and fell and

Gruner had to slam on his brakes to avoid running the suspect over. While on the ground,

the suspect slid the items he was holding under Gruner’s vehicle. The suspect was

quickly apprehended and handcuffed. Once the suspect, who was later identified as

Appellant, was detained, Gruner located the items Appellant had thrown under Gruner’s

car. One of the items was a purse, which contained a .380 caliber firearm. The firearm

was distinctive in that it had a turquoise grip and was smaller than an average firearm.

An empty holster was located in Appellant’s vehicle as a result of an inventory search.

While in custody, Appellant stated that he had “just grabbed her bag,” and that he “did

not know what was in that bag.”

Appellant was arrested and subsequently indicted for the offense of felon in

possession of a firearm. Appellant pleaded not guilty, and the case was tried to a jury.

After trial, the jury returned a verdict of conviction and, after a punishment hearing,

returned a verdict recommending an eighty-five-year sentence of incarceration. The trial

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court accepted the jury’s verdicts and entered judgment in accordance. From this

judgment, Appellant timely appeals.

By his appeal, Appellant presents one issue. He contends that the evidence was

insufficient to support his conviction for felon in possession of a firearm. Specifically, he

contends that the State did not prove that he “intentionally and knowingly” possessed a

firearm.

STANDARD OF REVIEW

In assessing the sufficiency of the evidence, we review all the evidence in the light

most favorable to the verdict to determine whether, based on the evidence and

reasonable inferences therefrom, 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); Queeman v. State, 520 S.W.3d 616, 622

(Tex. Crim. App. 2017). When reviewing all the evidence under the Jackson standard of

review, the ultimate question is whether the finding of guilt was a rational finding. See

Brooks v. State, 323 S.W.3d 893, 906–07 n.26 (Tex. Crim. App. 2010). It is the

factfinder’s responsibility to resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at

319.

It is not required that each fact “point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.

2014). Circumstantial evidence and direct evidence are equally probative in establishing

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the guilt of a defendant, and guilt can be established by circumstantial evidence alone.

Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015).

LAW AND ANALYSIS

The State charged Appellant with the offense of unlawful possession of a firearm.

See TEX. PENAL CODE ANN. § 46.04. To prove this charge, it was required to establish

that Appellant possessed a firearm at a location other than his residence after he was

convicted of a felony and after the fifth anniversary of his release from confinement,

community supervision, parole, or mandatory supervision, whichever date is later. Id.

§ 46.04(a)(2). “Possession” requires actual care, custody, control, or management of an

item that the actor knowingly obtained, received, or exercised control over for a sufficient

period to permit him to terminate his control. Id. §§ 1.07(a)(39), 6.01(b). “[T]o support a

conviction for possession of a firearm, the State must show (1) that the accused exercised

actual care, control, or custody of the firearm, (2) that he was conscious of his connection

with it, and (3) that he possessed the firearm knowingly or intentionally.” Gonzalez v.

State, Nos. 07-16-00451-CR, 07-16-00452-CR, 2018 Tex. App. LEXIS 9769, at *5 (Tex.

App.—Amarillo Nov. 28, 2018, no pet.) (mem. op., not designated for publication). We

can infer intent from the acts, words, and conduct of the accused. Dues v. State, 634

S.W.2d 304, 305 (Tex. Crim. App. 1982). Direct or circumstantial evidence may be used

to prove possession but the accused’s connection with the firearm must be more than

“just fortuitous.” Davis v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet.

ref’d).

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In the present case, there is no dispute that Appellant is a convicted felon or that

the events occurring in this case transpired within the applicable five-year period from his

release. Appellant contends that the evidence adduced at trial was insufficient to prove

that he intentionally or knowingly possessed the firearm beyond a reasonable doubt. The

State can establish Appellant’s intentional or knowing possession of the firearm by

proving affirmative links2 that demonstrate that Appellant was conscious of his connection

with the firearm and knew what it was. James v. State, 264 S.W.3d 215, 219 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d). In the present case, Appellant matched the

descriptions given by several people of a man who was firing a firearm at the location

where he was eventually found. See Robles v. State, 104 S.W.3d 649, 651 (Tex. App.—

Houston [1st Dist.] 2003, no pet.) (fact that appellant matched physical description given

in warrant was an affirmative link to contraband). The evidence also established that

Appellant possessed the purse containing the firearm and appeared to be searching for

something within that bag when Gruner arrived and activated his car’s lights. See

Rodriguez v. State, No. 02-18-00436-CR, 2019 Tex. App. LEXIS 8863, at *22 (Tex.

2 Affirmative links that are relevant to whether the accused knowingly possessed a firearm include:

(1) the defendant’s presence when the search was conducted, (2) whether the firearm was
in plain view, (3) whether the defendant was in close proximity to and had access to the
firearm, (4) whether the defendant had a special connection to the firearm, (5) whether the
defendant possessed other contraband when arrested, (6) whether the defendant made
incriminating statements when arrested, (7) whether the defendant attempted to flee, (8)
whether the defendant made furtive gestures, (9) whether the defendant owned or had the
right to possess the place where the firearm was found, (10) whether the place where the
firearm was found was enclosed, (11) whether conflicting statements on relevant matters
were given by the persons involved, and (12) whether the defendant’s conduct indicated a
consciousness of guilt.

Gordy v. State, No. 06-18-00057-CR, 2018 Tex. App. LEXIS 7615, at *6 (Tex. App.—Texarkana Sept. 19,
2018, pet. ref’d) (mem. op., not designated for publication). Nevertheless, it is the logical force of the links,
rather than the number of links, that is dispositive. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.
2006).

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App.—Fort Worth Oct. 3, 2019, no pet.) (concluding it “[a] definite link between Appellant

and the controlled substance . . . that he had his hand in the bag containing it shortly

before it was discovered, and no other person had access to the bag between the time

that his hand was observed in the bag and the discovery of the cocaine.”). Upon seeing

Gruner’s police vehicle, Appellant fled. See Figueroa v. State, 250 S.W.3d 490, 503 (Tex.

App.—Austin 2008, pet. ref’d) (appellant’s attempt to flee from police links appellant and

contraband and indicates appellant’s consciousness of guilt). Additionally, a security

guard indicated that he saw Appellant with a “turquoise teal looking” gun, which is

consistent with the gun Gruner recovered from the purse abandoned by Appellant.

Considering all of the evidence in the light most favorable to the verdict, we conclude that

the evidence was sufficient to allow a rational jury to conclude that Appellant intentionally

or knowingly unlawfully possessed a firearm.

Appellant’s argument on appeal essentially highlights certain evidence that, he

contends, is incompatible with his intentional or knowing possession of the firearm. He

contends that the gun appears to have been designed for a woman; the gun was found

in a woman’s purse; and, when he was being detained, Appellant stated several times

that he “just grabbed her bag” and that he “did not know what was in that bag.” The jury

was tasked with considering this evidence as well as the evidence discussed above and

resolving the conflicts in the testimony, weighing the evidence, and drawing reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319. After doing

so, the jury found Appellant guilty.

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CONCLUSION

For the foregoing reasons, we overrule Appellant’s sole issue and affirm the

judgment of the trial court.

Judy C. Parker
Justice
Do not publish.

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