Martin Dominick DiCarlo v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-97-00370-CR Martin Dominick DiCarlo, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 96-494-K368, HONORABLE BURT CARNES, JUDGE PRESIDING Appellant was convicted of unlawful possession of a firearm by a felon in a trial before the court. See Tex. Penal Code Ann. § 46.04(a)(1) (West 1994). His status as a felon was based on his prior conviction for burglary of a habitation. Appellant pled true to three enhancement paragraphs alleging other felony convictions. He was sentenced to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 1998). Appellant's first point of error is that the evidence is insufficient to prove that he knew he was in possession of the firearm. In his second point, he contends that he was prosecuted under the wrong statute. He argues that even though this offense occurred August 3, 1996, the applicable statute was the law as it existed before it was amended effective September 1, 1994, because his felony conviction for burglary was an essential element of the offense and it occurred in 1993, before the effective date of the amendment. We will affirm the judgment of conviction. Legal Sufficiency of the Evidence In his first point of error, appellant contends the evidence was insufficient to prove that he intentionally or knowingly possessed a firearm. In reviewing the legal sufficiency of the evidence supporting a conviction, the relevant question is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). The indictment under which appellant was convicted provides in pertinent part that "On or about the 3rd day of August, A.D. 1996, in the County of Williamson and State of Texas, [appellant], a person who had been convicted of the felony offense of burglary of a habitation, intentionally or knowingly possessed a firearm . . . ." Appellant only disputes the sufficiency of evidence to prove the culpable mental element of the offense, contending that he did not know that the gun was in his van. It is a general principle of criminal responsibility that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Penal Code Ann. § 6.01(a) (West 1994). "Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." Id. at § 6.01(b). In addition to these requirements, the Penal Code also contains this definition: "'Possession' means actual care, custody, control, or management." Tex. Penal Code Ann. §1.07(39) (West 1994). The statute making possession of a firearm by a felon a crime does not expressly state a culpable mental state, but there is no dispute that one is required. With few exceptions, the Penal Code requires proof of a culpable mental state in all offenses. If the definition of the offense does not contain a culpable mental state, as section 46.04 does not, one is statutorily implied. See Tex. Penal Code Ann. § 6.02(a), (b) (West 1994). In Hazel v. State, 534 S.W.2d 698, 700 (Tex. Crim. App. 1976), the court said that the culpable mental element in the possession of a firearm by a felon offense could be intent, knowledge, or recklessness. The indictment in this case alleged appellant possessed the firearm "intentionally or knowingly." The Penal Code defines these terms in pertinent part as follows: (a) A person acts intentionally, or with intent, with respect to the nature of his conduct . . . when it is his conscious objective or desire to engage in the conduct . . . . (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. . . . Tex. Penal Code Ann. § 6.03(a), (b) (West 1994). In this case "knowingly" is sufficient to sustain the conviction. It is not necessary to prove the higher degree of culpability, "intentionally," when the offense can be established by a lower degree of culpability. See Tex. Penal Code Ann. § 6.02(d), (e) (West 1994); Cowan v. State, 562 S.W.2d 236, 240 (Tex. Crim. App. 1978)(where State pleads intentionally and knowingly, proof of either mental state sufficient). The evidence showed that appellant was released from prison from his 1993 burglary conviction in March 1, 1996, and shared an apartment in Austin with his twin brother. He bought a van July 21,1996, with money he had recently inherited from his mother. On Saturday morning, August 3, 1996, he went fishing with his brother and a friend of his brother. That same Saturday afternoon about 2:00 p.m. Deputy Sheriff John Dusek of the Williamson County Sheriff's Department was dispatched to investigate a report that a Dodge van had left the scene of an accident. The driver was reported to be armed with two knives. Deputy Dusek searched the area reported and found the van on the side of the road; appellant was changing its flat tire. Deputy Dusek had appellant lie down and handcuffed him. In the process, the deputy observed a filet knife of illegal length on the ground beside appellant. Deputy Dusek also saw another knife with a blade of about seven inches (1) under the windshield wiper of the van. Appellant refused to identify himself, was extremely belligerent, smelled of alcohol and appeared to be intoxicated. Deputy Dusek decided to arrest appellant because of his possession of illegal knives and his intoxicated condition. When the only person in a vehicle is arrested, the Sheriff's department procedure is to have the vehicle towed to storage. First, the deputy must conduct an inventory of the contents of the van for the protection of the owner against theft and for the protection of the towing company against false charges of theft. In addition, Deputy Dusek was searching for information that would help identify appellant. As Dusek initiated the inventory search, other deputies arrived to assist. Inside the van they found a black nylon holster for a pistol, a box for a pistol, ammunition in that box, and an empty magazine for a weapon. They also found additional knives. The deputies found two bottles of bourbon and many large cans of beer. Deputy Tomlinson looked in the open back doors of the van and saw an enclosure loosely covered with a panel. Through a gap in the panel he saw a bag. He felt the bag and could tell it was the barrel of and magazines for a weapon. He looked in and found what the deputies initially believed to be a machine gun and several magazines. The weapon was identified as a M.A.C. 10 Ingram .45 caliber semiautomatic pistol with at least one magazine that would hold 45 rounds of ammunition, and another that would hold 30. When Deputy Dusek inquired about appellant's identity, he was not helpful. He cursed the deputy, tried to kick out a window in the patrol car, and threatened to kill the deputy and his family. Appellant said he knew where the deputy lived. After appellant was told that the weapon had been found, and while being transported to jail, appellant again threatened to kill Dusek and suggested that "Banditos" would assist him. In making the threat, appellant told Dusek that "that wasn't the most of the guns he had or that wasn't the worst of the guns, something to that effect." Appellant testified at trial and admitted that he had a prior felony conviction, that he owned the van, that the weapon was found in his van, and that he was the driver and only occupant before he stopped to repair the flat tire. However, he denied any knowledge of the weapon. Appellant's brother Michael testified that the knives were his and that he had put them in the van to go fishing. He said the M.A.C. 10 weapon was his and that he had hidden it in his brother's van without his knowledge. Michael said that he had purchased the weapon on Sixth Street in Austin on the evening of July 24 from an unknown black male for about $200.00 cash. A couple of nights later Michael showed appellant his "new toy." Michael said that appellant was very upset and told Michael to get rid of it because it was illegal for appellant to be around it. Michael said he put the weapon in his own pickup, which had a lockbox that could be locked. However, within a day Michael decided it was not safe in his truck, so without his brother's knowledge, he put the gun in his brother's van in a compartment behind a panel that was held on by screws. Michael also claimed ownership of the holster and bullets found in the van. He said he had bought the box of ammunition at a garage sale. Appellant's estranged wife Deborah testified that appellant had taken her and their two sons out to celebrate the July 28 birthday of the eldest and that she had thoroughly searched the van to insure that he had no alcohol or drugs in the van while visiting with his children. She testified that she had removed the panel where the deputies later found the machine gun and found it empty. The next night appellant called her and was very agitated because he did not want to stay in the same apartment with the gun belonging to Michael. Appellant asked to come stay with her, but Deborah declined. Michael called Deborah on August 6 and told her that appellant had been arrested for possession of "an UZI with a silencer"; at that time Michael told her that the gun was his. She did not want to get involved. Deborah and Michael finally came forward to claim that the gun belonged to Michael after appellant had been in jail for two months. At trial, appellant denied that the gun was his and denied knowing that it was in his van. Appellant testified that he had gone fishing with his brother and his brother's friend. Appellant and the friend went to purchase worms and cigarettes. Appellant discovered that the friend was smoking crack cocaine so he kicked him out of the van. When appellant drove to another store, a car bumped into his van. It was his brother's friend and another man trying to pick a fight. Appellant jumped in his van to avoid a confrontation, but later jumped out of his van with a knife to fight with Michael's friend. During a car chase, appellant hit a curb, went through a fence, and got a flat tire. He acknowledged that the deputy arrested him, but said that he didn't threaten the deputy or try to kick out the window of the patrol car. We believe that the evidence is sufficient to support the conviction. Appellant's testimony established all elements except the culpable mental state of "knowingly" possessing the weapon. Intent can be inferred from acts, words and conduct of the accused. Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim. App. 1982); Romo v. State, 593 S.W.2d 690, 693 (Tex. Crim. App. 1980). Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). Since mental culpability is of such a nature that it generally must be inferred from the circumstances under which the prohibited act occurred, the trier of fact may infer intent from any facts in evidence which tend to prove existence of such intent. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992). See Skillern v. State, 890 S.W.2d 849, 880 (Tex. App.--Austin 1994, pet. ref'd). An inference of guilt can be drawn from flight. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). In Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992), the court said that like flight, the defendant's presentation of false identification to a police officer when he was pulled over indicated a "consciousness of guilt" and an awareness of the need to conceal his identity from law enforcement officials. From appellant's refusal to identify himself, the jury could infer that he needed to conceal his status as a felon because of the contraband (the machine-gun-like weapon) in his van. In Butler v. State, 936 S.W.2d 453, 459 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd), the court said that giving false identification after arrest and engaging in a violent outburst like kicking out the door of the patrol car indicated the accused's guilty knowledge of the assault for which he had been arrested. Appellant's attempt to kick out the glass in Dusek's patrol car could give rise to an inference of guilty knowledge of being caught with a machine gun in his van. We believe that having a holster and ammunition in the vehicle is significant and entitled to some weight in determining appellant's knowledge of the existence of a concealed weapon in his vehicle. In Nesbit v. State, 720 S.W.2d 888, 889 (Tex. App.--Austin 1986, no pet.), we gave weight to the fact that appellant had shotgun shells in his pocket that were identical to those in a shotgun in the defendant's pickup truck. Appellant's profanity and threats to kill the arresting deputy sheriff and his whole family, and his invocation of "Banditos" to assist him in wiping out Dusek, are inconsistent with appellant's claimed lack of knowledge of the weapon. Appellant's remark to Dusek that the weapon found was not the most or the worst of the guns he had could provide the basis for the fact finder's determination that appellant knew the gun was in his van. Evidence that the defendant asserted ownership of the car in which the gun was found under the driver's floormat with defendant driving was held sufficient to sustain the conviction for felon in possession of a firearm. Mena v. State, 504 S.W.2d 410, 413-414 (Tex. Crim. App. 1974). The court of criminal appeals has also held that proof of a pistol on the floor near the defendant in his car established possession. Hazel v. State, 534 S.W.2d 698, 700 (Tex. Crim. App. 1976). This Court has held that ownership of a truck in which a gun was found under the driver's seat, within easy reach, was sufficient to sustain a conviction for felon in possession of a firearm. Nesbit v. State, 720 S.W.2d 889 (Tex. App.--Austin 1996, no pet.). Appellant relies on Humason v. State, 728 S.W.2d 363 (Tex. Crim. App. 1987), in which the court found the evidence insufficient to support a conviction for possession of controlled substance when it only showed the defendant alone in a pickup truck with an unzipped gym bag containing cocaine next to him on the seat. The court applied the alternative reasonable hypothesis test and found that the evidence did not exclude the hypothesis that the defendant was unaware of the presence of the cocaine. The alternative reasonable hypothesis analytical construct was disavowed in Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). We believe that the evidence in this case is sufficient for the fact finder to determine that appellant knowingly possessed the weapon. The first point of error is overruled. Which Law Applies? Appellant's second point of error contends that the prior law on felon in possession of a firearm applied to his case. The prior law required the felony conviction to be one involving or threatening violence, a requirement no longer in effect. Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 964, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3688. (Tex. Penal Code Ann. § 46.05 renumbered as § 46.04). Appellant's offense, burglary of a habitation, was not a per se offense involving violence, but whether the offense is a crime of violence depends on the specific facts and circumstances of each case. See Powell v. State, 538 S.W.2d 617, 618 (Tex. Crim. App. 1976). There was no proof of any violence or threat in the burglary in his case. Without such proof, the evidence would be insufficient under the former law. See Boyd v. State, 899 S.W.2d 371, 374 n.5 (Tex. App.--Houston [14th Dist.] 1995, no pet.). Appellant was convicted of burglary in 1993. The present offense for possession of the machine-gun-like weapon found in his van occurred on August 3, 1996. Between the date of his burglary conviction and the weapon offense, the statute was rewritten and renumbered. The effective date of the amendment was September 1, 1994. The legislature specified in the amendatory Act that the changes made were not applicable to offenses committed before the effective date of the Act, and that "[f]or purposes of this section, an offense is committed before the effective date of this article [the amending act] if any element of the offense occurs before the effective date." Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.18(a), (b), 1993 Tex. Gen. Laws 3586, 3688. Appellant relies on Burleson v. State, 935 S.W.2d 526, 528 (Tex. App.--Waco 1996, no pet.), a case with the same time sequence as the instant case. The court in Burleson held that for purposes of determining the applicability of the amended statute, a conviction for a felony occurs at the time the conviction was obtained. Because the prior felony was an element of the later offense of felon in possession, if the conviction occurred before the effective date of the amendment, the defendant had to be prosecuted under the prior version of the statute. The court of criminal appeals has very recently considered this precise issue and rejected Burleson. "We conclude the Legislature did not intend for the date of the prior conviction to be considered an element of § 46.04. Instead, we conclude the Legislature intended for only a defendant's status as a felon to be an element of § 46.04. Therefore, appellee was subject to prosecution under § 46.04." State v. Mason, No.1300-97, slip op. at 14 (Tex. Crim. App. Oct. 28, 1998). In light of this direct and recent holding against appellant's position, we overrule his second point of error. Conclusion Having overruled appellant's two points of error, we affirm the judgment of conviction. Bea Ann Smith, Justice Before Justices Powers, Kidd and B. A. Smith Affirmed Filed: November 19, 1998 Do Not Publish 1. Carrying a knife with a blade over five and one-half inches is an offense. Tex. Penal Code Ann. § 46.02(a) (West 1994) & § 46.01(6)(A) (West Supp. 1998). idence did not exclude the hypothesis that the defendant was unaware of the presence of the cocaine. The alternative reasonable hypothesis analytical construct was disavowed in Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). We believe that the evidence in this case is sufficient for the fact finder to determine that appellant knowingly possessed the weapon. The first point of error is overruled. Which Law Applies? Appellant's second point of error contends that the prior law on felon in possession of a firearm applied to his case. The prior law required the felony conviction to be one involving or threatening violence, a requirement no longer in effect. Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 964, amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3688. (Tex. Penal Code Ann. § 46.05 renumbered as § 46.04). Appellant's offense, burglary of a habitation, was not a per se offense involving violence, but whether the offense is a crime of violence depends on the specific facts and circumstances of each case. See Powell v. State, 538 S.W.2d 617, 618 (Tex. Crim. App. 1976). There was no proof of any violence or threat in the burglary in his case. Without such proof, the evidence would be insufficient under the former law. See Boyd v. State, 899 S.W.2d 371, 374 n.5 (Tex. App.--Houston [14th Dist.] 1995, no pet.). Appellant was convicted of burglary in 1993. The present offense for possession of the machine-gun-like weapon found in his van occurred on August 3, 1996. Between the date of his burglary conviction and the weapon offense, the statute was rewritten and renumbered. The effective date of the amendment was September 1, 1994. The legislature specified in the amendatory Act that the changes