Medina Jr., Luisto v. State

Affirmed and Memorandum Opinion filed April 29, 2004 Affirmed and Memorandum Opinion filed April 29, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-00854-CR ____________ LUISTO MEDINA, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 906,991 M EM O R A N D U M   O P I N I O N The jury convicted appellant of possession of a weapon by a felon and assessed punishment at five years= imprisonment and a fine of $2,500. In three points of error, appellant contends (1) the evidence was legally and factually insufficient to prove that he knowingly possessed a weapon and (2) the trial court abused its discretion when it allowed the State to call a witness solely to impeach her through otherwise inadmissible hearsay testimony; appellant claims the court also abused its discretion when it denied his request for a limiting instruction as to that testimony. We affirm. FACTUAL BACKGROUND On March 27, 2002, Officer Steven Fisher of the Houston Police Department conducted surveillance of a convenience store from across the street. Officer Fisher observed several cars arrive and about twenty people get out of the cars. The people congregated around the store, and appeared to be smoking marijuana and making gang signs at passing cars. Believing there was probable cause of marijuana possession, Officer Fisher called for a backup unit. While waiting for the backup unit to arrive, Officer Fisher observed appellant drive up in a Chevrolet Lumina. He could not recall whether there was a passenger in the car. Appellant joined the others congregating around the store. The backup unit, consisting of Officer Fite, his partner, and a constable, arrived at the store and detained everyone.[1] Officer Fite searched the Lumina for marijuana but was unable to find any. During his search, he observed a pistol underneath the car=s dashboard. Officer Fite removed the pistol and arrested appellant. Appellant=s girlfriend, Michelle Medina,[2] was also present. She informed Officer Fite that the Lumina belonged to her, but she apparently did not make any statement regarding who owned the car. ANALYSIS I. Sufficiency of the Evidence. In his first and second points of error, appellant contends the evidence was legally and factually insufficient to prove that he knowingly possessed a weapon. In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider all of the evidence which the jury was permitted, rightly or wrongly, to consider. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe the appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003). In reviewing factual sufficiency, we view the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). We consider all of the evidence the jury was permitted to consider. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003); Morales v. State, 95 S.W.3d 561, 563 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). When an accused is not in exclusive control of the place the firearm was found, the State must produce evidence that affirmatively links the accused to the firearm. Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). This evidence may be either direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Courts have identified numerous factors that may affirmatively link the accused to the firearm, including whether (1) the firearm was in a car driven by the accused, (2) the firearm was found on the same side of the car as the accused, (3) the firearm was in a place owned by the accused, (4) the firearm was in plain view, (5) the firearm was conveniently accessible to the accused, (6) the firearm was found in an enclosed space, (7) the conduct of the accused indicated a consciousness of guilt, (8) the accused has a special relationship to the firearm, (9) occupants of the automobile gave conflicting statements about relevant matters, and (10) affirmative statements connect the accused to the firearm. Corpus, 30 S.W.3d at 38; Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). AThe number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.@ Corpus, 30 S.W.3d at 38; Gilbert, 874 S.W.2d at 298. Viewing the evidence in the light most favorable to the verdict, several of these factors exist: the gun was in a car driven by appellant; the gun was on the same side of the car as appellant; the gun was conveniently accessible only to appellant; and the gun was found in an enclosed place. Additionally, there was evidence that appellant owned a gun and that Medina, the car=s owner, did not know that a gun was in her car. Based on this evidence, we cannot conclude that the jury=s verdict was irrational. The evidence was therefore legally sufficient and we overrule appellant=s first point of error. Appellant contends this evidence was so obviously weak as to render the jury=s verdict clearly wrong and manifestly unjust. Appellant highlights several of the missing factors: the gun was not in plain view; appellant did not attempt to evade arrest or otherwise indicate a consciousness of guilt; and the officers did not attempt to preserve any fingerprints on the gun, nor was there any other evidence demonstrating that appellant had any relationship to the gun found in the car. We do not find that these missing factors render the jury=s verdict clearly wrong and manifestly unjust. The evidence was therefore factually sufficient and we overrule appellant=s second point of error. II. Impeachment Evidence. In his third point of error, appellant contends the trial court abused its discretion (1) in allowing the State to call a witness solely to impeach her through otherwise inadmissible hearsay testimony and (2) in denying appellant=s request for a limiting instruction as to that testimony. In particular, appellant complains that the State called Medina solely to impeach her with hearsay testimony that she told Officer Fite the gun found in her car was not hers. However, appellant failed to timely present either of his arguments to the trial court. Appellant did not object that the State was committing a subterfuge by calling Medina as a witness in order to introduce otherwise inadmissible evidence; appellant only objected to one question asked of Medina on the grounds that it was Aimproper impeachment,@[3] and he did not object to Officer Fite=s impeaching testimony. Therefore, he failed to preserve for appeal the argument that Medina was called solely to impeach her. See Tex. R. App. P. 33.1(a). Appellant did request a limiting instruction regarding the impeachment testimony, but this request was made at the jury charge, not when the testimony was admitted, and therefore the trial court did not err in denying the instruction. See id. at 878; Arana v. State, 1 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (AOnce evidence is admitted without a proper limiting instruction, it becomes part of the general evidence in the case and may be considered for all purposes.@). We overrule appellant=s third point of error. We affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed April 29, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Officer Fisher, who was working undercover, went to another location to remain concealed. [2] Michelle Medina and Luisto Medina, appellant, are unrelated. Michelle Medina will be referred to as AMedina,@ whereas Luisto Medina will be referred to as Aappellant.@ [3] The question objected to was, ASo, then, I guess, you don=t recall telling the officer it was not your gun.@ The objection appears to be that the proper foundation for impeachment was not laid, Tex. Rule Evid. 613(a), not that Medina was called solely to impeach her.