Alvin Leo Kiser, Jr. v. the State of Texas

NO. 12-22-00099-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALVIN LEO KISER, JR., § APPEAL FROM THE 3RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Alvin Leo Kiser, Jr. appeals his convictions for unlawful possession of a firearm by a
felon and theft of a firearm. In one issue, Appellant challenges the sufficiency of the evidence to
support his convictions. We affirm.

BACKGROUND
On September 17, 2021, Gerardo Costilla reported to police that a handgun had been
stolen from the center console of his car while he was parked in front of a laundromat in Athens,
Texas. The gun, a .45 caliber SDS Imports Model 1911, was in the center console when Costilla
entered the laundromat, and when he returned to his vehicle approximately thirty to forty
minutes later, the car door was partly open, and the gun was gone. The Athens Police
Department investigated the theft but were unable to locate or recover Costilla’s gun. Following
the investigation, law enforcement arrested Appellant and he was charged by indictment with
unlawful possession of a firearm by a felon and theft of a firearm. He pleaded “not guilty” to
both counts, and the matter proceeded to a jury trial.
At trial, Costilla testified that he purchased the SDS Imports Model 1911 handgun, black
or dark blue in color, on March 17, 2020, and last saw the gun in the center console of his car the
evening of September 17, before entering the laundromat. He did not look back at his vehicle
while inside, but when he exited the building, the car’s door was partly open, the interior light
was on, and the gun was gone. Costilla reported the theft to police because he was concerned
about later legal issues, as the gun was registered to him. Officer Joshua Blanco of the Athens
Police Department testified that the serial number of the gun Costilla reported stolen indicated a
black firearm with a brown grip, and that following Costilla’s report, he photographed the box
the gun came in, which bore an identical serial number to the missing firearm.
In addition to live testimony, the State presented surveillance video from the laundromat,
which showed that at around 8:00 p.m. on September 17, Appellant parked his own vehicle in
the same lot, exited his vehicle, and slightly opened the door of Costilla’s car. Appellant then
drove away in his own vehicle. A few minutes later, Appellant returned on foot, opened
Costilla’s car door more fully, removed an unidentified object from the center console, appeared
to conceal the object under his shirt, and walked away, leaving the car door ajar. The
surveillance video did not show anyone else accessing Costilla’s car.
The State also introduced a recording of a phone call between Appellant and an
unidentified woman, which occurred during Appellant’s incarceration in the Henderson County
jail. In the recording, the woman asks whose car Appellant broke into, and Appellant responds
that he did not break in, but only opened the door. The woman asked, “Did you think you were
going to be able to get away with it?” Appellant responded, “Yeah,” and subsequently added,
“That’s where the black thing came from.”
The jury found Appellant “guilty” on both counts. After a punishment hearing in which
Appellant pleaded “true” to the indictment’s enhancement allegations, the jury assessed
punishment of forty-five years of imprisonment for felon in possession of a firearm and twenty
years of imprisonment for theft of a firearm. This appeal followed.

SUFFICIENCY OF THE EVIDENCE
In his sole issue, Appellant argues that the evidence is legally insufficient to support the
verdict rendered at trial and the subsequent judgment. Specifically, he challenges the sufficiency
of the evidence to establish that he had possession of a firearm, a necessary element for both
crimes of which he was convicted.

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Standard of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.
Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). In Texas, the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing
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, 443 U.S. at 319, 99 S.
Ct. 2781 at 2789. This standard gives full play to the responsibility of the trier of fact to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The
jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Brooks, 323 S.W.3d at 899.
Juries are permitted to draw multiple reasonable inferences from direct or circumstantial
evidence. Anderson v. State, 416 S.W.3d 884, 891 (Tex. Crim. App. 2013). When the record
supports conflicting inferences, a reviewing court must presume that the fact finder resolved the
conflicts in favor of the prosecution and therefore defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated
equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A conclusion of guilt can rest on the combined
and cumulative force of all the incriminating circumstances; the duty of a reviewing court is to
ensure that the evidence presented supports a conclusion that the defendant committed the crime
charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Hernandez v.
State, 190 S.W.3d 856, 864 (Tex. App.–Corpus Christi 2006, no pet.).
The sufficiency of the evidence is measured against the offense(s) as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

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the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
Applicable Law
To establish the offense of unlawful possession of a firearm by a felon, the State must
prove the defendant (1) was previously convicted of a felony offense and (2) possessed a firearm
after the conviction, but before the fifth anniversary of his release from confinement. TEX.
PENAL CODE ANN. § 46.04(a) (West 2021). The Texas Penal Code defines possession as “actual
care, custody, control, or management.” Id. § 1.07(39) (West 2021). If the firearm is not found
on the defendant’s person or seen in his exclusive possession, the State can still prove possession
by offering additional, independent facts and circumstances that link the defendant to the
firearm. See Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.–Dallas 2004, no pet.). Courts
have historically considered several non-exclusive factors, such as whether the firearm was in
plain view, the defendant owned the place where the firearm was found, the defendant was near
the firearm and had ready access to it, the defendant attempted to flee, the defendant’s conduct
indicated a consciousness of guilt, and the defendant made incriminating statements. See id.
These factors are not a litmus test, but only some factors which may circumstantially establish
the legal sufficiency of the evidence to prove a knowing “possession.” Evans v. State, 202
S.W.3d 158, 162 (Tex. Crim. App. 2006). No set formula of facts dictates a finding of links
sufficient to support an inference of possession; the logical force of all of the evidence, rather
than the number of links, supports a fact finder’s verdict. See Taylor v. State, 106 S.W.3d 827,
830 (Tex. App.—Dallas 2003, no pet.); Evans, 202 S.W.3d at 166.
To establish the offense of theft, the State must show that the defendant unlawfully
appropriated property, without the effective consent of its owner, with the intent to permanently
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03 (West 2021). Where the
property is a firearm, theft is a state jail felony. Id. at § 31.03(e)(4).
Analysis
Regarding the charge of unlawful possession of a firearm by a felon, Appellant argues
that the evidence is insufficient to prove he possessed a firearm. Regarding the charge of theft of
a firearm, Appellant admits he unlawfully entered Costilla’s vehicle 1 but argues the evidence is

1
In his brief, Appellant admits that “[t]he surveillance tapes show Mr. Kiser committing burglary of
vehicle [sic].”

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insufficient to show that he took a firearm from the vehicle. For both charges, Appellant
challenges the sufficiency of the evidence to show that a firearm was present in Costilla’s vehicle
at all.
Appellant does not dispute that he was previously convicted of a felony offense, and at
trial, Michael “Buddy” Hill, an investigator for the Henderson County District Attorney’s office,
testified that September 17, 2021, was within five years of Appellant’s release from confinement
for his most recent felony conviction. Because the gun was not found on Appellant’s person or
in his exclusive possession, to prove that Appellant was in possession of a firearm, the State had
to produce evidence showing a connection to the firearm that was more than just fortuitous. See
Evans, 202 S.W.3d at 162; see also Bates, 155 S.W.3d at 216–17.
Although the surveillance footage does not clearly capture the object Appellant removed
from Costilla’s car, the jury may draw reasonable inferences supported by the circumstantial
evidence presented. See Anderson, 416 S.W.3d at 888. In this case, Costilla testified that the
gun was in the center console of his vehicle when he arrived at the laundromat. The surveillance
video showed that while Costilla was gone, Appellant accessed the center console and removed
an object, and Costilla noticed the gun missing when he left the laundromat (and reported the
theft to police the same day). The record does not show, and Appellant does not argue, that any
other person accessed Costilla’s vehicle during Costilla’s absence. Further, Appellant’s
statement in the recorded phone call referencing a “black thing” that he obtained from the
vehicle he accessed was potentially incriminating in nature. All these factors link Appellant to
the stolen firearm and could support an inference of possession. See Bates, 155 S.W.3d at 216–
17.
Ultimately, it was within the jury’s province to not only assess the weight of Costilla’s
testimony but to weigh all the testimony and the evidence. See Milliron v. State, No.
12˗09˗00443-CR, 2010 WL 4346698, at *4 (Tex. App.—Tyler Nov. 3, 2010, no pet.) (mem. op.,
not designated for publication) (citing Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.
1999)). We presume that the jury found Costilla’s testimony, specifically that there was a gun in
the center console of his vehicle when he arrived at the laundromat, to be credible— a
determination entitled to great deference from a reviewing court. See Hooper, 214 S.W.3d at 13;
see also Clayton, 235 S.W.3d at 778 (“When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer

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to that determination”). If the gun was present when Costilla entered the laundromat, and
missing when Costilla returned, following Appellant’s entry into the vehicle, the jury could
reasonably infer that the gun was the object Appellant took from the center console.
Consequently, the jury could reasonably infer Appellant’s knowing possession of the gun. The
jury could further reasonably infer from the evidence, including Costilla’s and Blanco’s
testimony about the gun’s color, that the “black thing” Appellant mentioned during the jail call,
directly following a statement about his entry into Costilla’s car, was the gun removed from
Costilla’s vehicle. Finally, since the gun was never recovered, the jury could reasonably infer
Appellant’s intent to permanently deprive Costilla of his property.
Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could find, beyond a reasonable doubt, that Appellant possessed a firearm on
September 17, 2021, and that sufficient evidence supports the jury’s verdict of “guilty” on the
charge of unlawful possession of a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04(a);
see also Jackson, 443 U.S. at 319, 99 S. Ct. 2781 at 2789. Similarly, we find that a rational jury
could conclude, beyond a reasonable doubt, that Appellant appropriated a firearm from Costilla’s
vehicle without his consent, with the intent to permanently deprive Costilla thereof. See TEX.
PENAL CODE ANN. § 31.03; see also Jackson, 443 U.S. at 319, 99 S. Ct. 2781 at 2789. We
overrule Appellant’s sole issue.

DISPOSITION
Having overruled appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice

Opinion delivered March 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31, 2023

NO. 12-22-00099-CR

ALVIN LEO KISER, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 3rd District Court
of Henderson County, Texas (Tr.Ct.No. CR21-0977-3)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.