Michael Anthony Rhodes v. State

NO. 12-01-00268-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MICHAEL ANTHONY RHODES, § APPEAL FROM THE 294TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § VAN ZANDT COUNTY, TEXAS MEMORANDUM OPINION Michael Anthony Rhodes ("Appellant") appeals his conviction of unlawful possession of a firearm by a felon, for which he was sentenced to imprisonment for five years. Appellant raises sixteen issues on appeal. We affirm. Background On or about May 7, 1973, Appellant was convicted of murder. Subsequent to the satisfaction of the terms of his sentence, Appellant purchased a 12-gauge shotgun. (1) On September 25, 1995, Appellant traveled to property (the "property") owned by John McNally, a friend of Appellant's acquaintance, William Smiley ("Smiley"). (2) While on the property, Appellant fired the 12-gauge shotgun he had purchased, as well as an SKS assault rifle and a .22 caliber rifle. That same day, a fisherman on the public waterway adjacent to the property suffered a fatal gunshot wound. Game Warden Joe Carter ("Carter"), accompanied by local law enforcement officers, entered the property without a warrant, under suspicion that the shot that struck the fisherman had originated there. Upon entering the property, Carter and other officers encountered a man on a tractor, who directed them to the shooting range. The officers soon encountered Appellant, Smith, Smiley, and others. The officers secured the area and discovered several firearms, including two SKS assault rifles, a 12-gauge shotgun, a pistol and a .22 caliber rifle. Appellant traveled to the Canton Police Department where he gave a written statement. (3) Appellant was subsequently charged with unlawful possession of a firearm by a felon. Appellant initially pleaded "not guilty" and requested a trial by jury. Appellant filed a motion to suppress statements he made at the scene and the written statement he gave at the Canton Police Department. Following an evidentiary hearing, the trial court overruled Appellant's motion to suppress his written statement. Appellant subsequently changed his plea to "no contest" and waived his right to a trial by jury. During the ensuing bench trial, Appellant was admonished, waived his Fifth Amendment rights, and testified in his defense. Smiley, Smith, and Carter also testified. Ultimately, the trial court found Appellant guilty as charged and sentenced him to imprisonment for five years. Evidentiary Sufficiency In issues one, two, three, four, five, six, eight, nine, ten and eleven, Appellant argues that the evidence is neither legally nor factually sufficient to support the trial court's finding of guilt. Legal Sufficiency Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.- San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982). The Texas Penal Code provides in pertinent part as follows: A person who has been convicted of a felony commits an offense if he possesses a firearm: (1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives. Tex. Pen. Code Ann. § 46.04(a) (Vernon 2003). (4) "Possession" means actual care, custody, control, or management. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon 2003). In the instant case, Smiley testified he, Appellant, and others were on property owned by John McNally at the time in question. Appellant stipulated that he had previously been convicted of murder in 1973. Appellant testified that he owned a 12-gauge shotgun and that he intentionally and knowingly transported the shotgun from his house to the property. Appellant further testified that he fired the shotgun, an SKS assault rifle, and a .22 rifle on the day in question. (5) In her testimony, Smith confirmed that Appellant owned a shotgun and that she and Appellant had traveled to the property with Smiley on the day in question. We conclude that the evidence is legally sufficient to support the trial court's finding of guilt. Factual Sufficiency Turning to Appellant's contention that the evidence is not factually sufficient to support the trial court's finding of guilt, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. We review the evidence weighed by the trier of fact which tends to prove the existence of the elemental fact in dispute, and compare it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are authorized to disagree with the fact-finder's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. Our evaluation should not substantially intrude upon the trial court's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the trial court's finding on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the trial court's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). Our review of the record in the instant case, with consideration given to all of the evidence, both for and against the trial court's finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof so as to render Appellant's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is both legally and factually sufficient to support the trial court's verdict. Appellant's issues one, two, three, four, five, six, seven, (6) eight, nine, ten and eleven are overruled. Motion to Suppress and the Doctrine of Curative Admissibility In issues twelve, thirteen, fourteen, and fifteen, Appellant argues that the trial court erred in refusing to overrule his motion to suppress his oral statements made to law enforcement at the scene as well as his written statement made at the Canton Police Department. Specifically, Appellant argues that such statements were taken in violation of his rights pursuant to the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Appellant also argues that evidence seized at the scene was seized in violation of his constitutional rights. Under the doctrine of curative admissibility, the admission of improper evidence cannot be asserted as grounds for reversal on appeal where the defendant, on direct examination, gives testimony establishing the same facts as those to which an objection was raised. See Rodriguez v. State, 919 S.W.2d 136, 138 (Tex. App.-San Antonio 1995, no pet.) (citing Thomas v. State, 572 S.W.2d 507, 513 (Tex. Crim. App. 1976); Aguirre v. State, 683 S.W.2d 502, 509 (Tex. App.-San Antonio 1984, pet. ref'd)). In the case at hand, Appellant's testimony under direct examination established facts consistent with the facts he previously sought to suppress. Therefore, we hold that Appellant has waived such issues on appeal. See Rodriguez, 919, S.W.2d at 138. Appellants issues twelve, thirteen, fourteen, and fifteen are overruled. Admonishment In issue sixteen, Appellant argues that the trial court committed reversible error when it accepted Appellant's change of plea from "not guilty" to "no contest" and released the jury without admonishing Appellant of the potential effect or consequences of his change of plea or the range of punishment. In one sentence, with no citation to the record, the State responds that "the trial court did fully admonish Appellant." Texas Code of Criminal Procedure article 26.13(a)(1) requires a trial judge to admonish a defendant about the punishment range attached to an offense before accepting a plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2003); Grays v. State, 888 S.W.2d 876, 878 (Tex. App.- Dallas 1994, no pet.). A trial court's complete failure to admonish a defendant on the range of punishment requires reversal without regard to whether the defendant has shown harm. See Ex parte McAtee, 599 S.W.2d 335, 335 (Tex. Crim. App. 1980), overruled on other grounds, Ex parte Tovar, 901 S.W.2d 484, 486 n.2 (Tex. Crim. App. 1995); Gonzales v. State, 746 S.W.2d 902, 904 (Tex. App.-Corpus Christi 1988, no pet.). Nevertheless, when the record reflects that the trial judge admonished the defendant under article 26.13(a)(1), even if the admonishment is incomplete or incorrect, and the punishment assessed is within the actual and stated range for the offense, there is a prima facie showing that the defendant's plea was knowing and voluntary. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App.1992); Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1987); Gonzales, 746 S.W.2d at 904. Once a prima facie showing is made, the burden shifts to the defendant to show he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishment. See Tex.Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2003); Grays, 888 S.W.2d at 878. Here, the record reflects that the trial the court sought to admonish Appellant and discussed matters such as Appellant's right to a trial by jury, Appellant's right to appeal following a "no contest" plea, Appellant's right to be represented by an attorney on appeal, whether or not Appellant had ever had problems with mental illness, whether Appellant believed himself to be mentally competent, whether Appellant believed he would be pardoned based on his plea, potential ramifications that might result from Appellant's plea under civil law, and that the trial court would treat a plea of "no contest" the same as a guilty plea. Moreover, the record reflects that Appellant was admonished as to the range of the punishment attached to the offense. The trial court further confirmed that Appellant was a citizen of the United States. We hold that the trial court properly admonished Appellant. Appellant's issue sixteen is overruled. Conclusion Having overruled Appellant's issues one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, and sixteen, we affirm the trial court's judgment. JAMES T. WORTHEN Chief Justice Opinion delivered September 30, 2003. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (DO NOT PUBLISH) 1. The record reflects that Appellant received a shotgun from an acquaintance in satisfaction of a debt owed to Appellant. Believing that the barrel of the shotgun was too long for a home-defense weapon, Appellant traded it at a gun show for the 12-gauge shotgun in question. In conjunction with his acquisition of the shotgun in question, Appellant filled out a form in which he stated, at the urging of the seller, that he was not a convicted felon. 2. Appellant's girlfriend, Sandra Smith ("Smith"), accompanied Appellant to the property. 3. The record reflects that prior to giving his written statement, Appellant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4. Section 46.04 has been amended since Appellant's conviction, but the elements of the offense as set forth in subsection (a) remain unchanged. See Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan 1, 1974. Renumbered from V.T.C.A., Penal Code § 46.05 and amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. 5. Appellant testified that the shotgun, the SKS assault rifle and the .22 rifle, were all firearms. 6. In his issue six, Appellant argues that the evidence supporting his conviction, if any, was overcome by the recognized defense that he was engaged in a lawful sporting activity. Appellant has cited no authority supporting that such a defense exists to the crime of unlawful possession of a firearm by a felon, nor are we aware of any such authority supporting such a defense to the offense at issue. Similarly, in his issue seven, Appellant argues that the trial court erred because it failed to instruct the jury as to such a defense. Even had Appellant cited authority supporting that such a defense was applicable to the crime with which he was charged, we cannot overlook the fact Footnote continued. that Appellant's case was ultimately tried before the court, not a jury. Appellant's issue seven is overruled.