Mirelez v. State

1

Adam Mirelez, Appellant v. The State of Texas, Appellee

No. 03-22-00536-CR

Court of Appeals of Texas, Third District, Austin

June 27, 2024

Do Not Publish

FROM THE 424TH DISTRICT COURT OF LLANO COUNTY NO. CR8289, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Theofanis

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

A jury found Adam Mirelez guilty of unlawful possession of a firearm by a felon. See Tex. Penal Code § 46.04(c). The jury found true two enhancement paragraphs and assessed sentence at 40 years in prison. See id. § 12.42(d). Mirelez contends that the evidence is insufficient to prove that he had actual possession of the firearms or knowledge of their presence. He also contends that the trial court erred at the guilt/innocence phase by admitting hearsay testimony and erred at the punishment phase by admitting testimony speculating that Mirelez was going to shoot someone and a recording of a 911 call; Mirelez contends that this evidence was not probative or was more prejudicial than probative. He contends that, even if no single error is sufficient for reversal, these errors collectively constitute reversible error. We will affirm the judgment.

I. Guilt/innocence phase

Mirelez raises two issues with subparts complaining about the admission of evidence and the sufficiency of the evidence to support the guilty verdict. To provide context for both issues, we will first review the testimony at the guilt/innocence phase.

A. Testimony

Llano County Sheriff's Office Patrol Lieutenant Eric Van Pelt testified that he assembled a team to execute a warrant for Mirelez's arrest based on an allegation of an aggravated assault with a deadly weapon that was a parole violation. Believing the situation might be dangerous, they approached with weapons drawn. The team encountered people at the property but not Mirelez. Van Pelt learned that he might be at a small trailer home nearby. The team knocked at the home but left after receiving no response. Later that day, they returned to that house based on information received from Chase Parker, Sr. (Senior), who lived in the home. They knocked and used a patrol car's public address system to urge Mirelez to come out of the house. After waiting for more than an hour and believing that Mirelez was barricaded inside, they asked for help from a SWAT team. After another hour-and-a-half, Mirelez came out of the house shirtless and with his hands up. But Mirelez lowered his hands without permission and reached out to a trampoline before he had been patted down for weapons. Shortly after demanding that he obey their commands, the SWAT team shot him in the leg twice with beanbag rounds that broke his femur. After receiving consent to search from Senior, they entered the home and found pistols underneath the mattress in the one bedroom. They found a silver-over-black semiautomatic Smith and Wesson handgun and a silver Ruger handgun with black grips. They also found magazines and ammunition for the pistols.

Van Pelt testified about a picture of Mirelez holding pistols that Van Pelt believed were the weapons seized in the search. Van Pelt said that he could not be certain the pistols were the same because he could not see the serial numbers in the photo, but testified about visible characteristics of the guns that led him to believe they were the same guns. On cross-examination, he testified that he did not know when the photo was taken, could not prove it was not altered, and had not charged Mirelez for possession of the guns at the time of the photo.

Llano County Deputy Jeffrey Johnston testified that he met with Senior on the day of the arrest and that Senior did not seem nervous. Johnston testified that Senior has never lied to him or steered him the wrong way despite being a felon. Johnston testified that the information Senior gave about Mirelez's whereabouts and the presence of two pistols in the bedroom of the home turned out to be truthful and accurate. Johnston said he saw people at the first home ordered onto their knees. He saw only Mirelez exit the second home. Johnston testified that the combined events took about five-and-a-half hours.

Former Llano County Sheriff's Office Patrol Sergeant Les Hartman testified that he turned off the power to the trailer home hoping that the heat would encourage any occupant to leave. He checked an outlying shed to see if Chase Parker, Jr. (Junior), who was known to live on the property, might be there. Hartman said he put his ear to the outside wall of the home and heard movement in the bedroom. He described the faint sound as like the turning of a screw with a screwdriver.

Junior testified that he lived on the same property as the trailer in which Mirelez was found. He knew Mirelez and testified that Mirelez would occasionally visit Senior but that Mirelez did not to his knowledge sleep at Senior's trailer. Junior also testified that he had seen Mirelez on the property before the standoff on that same day. Junior admitted that he had pending charges for unlawful possession of a firearm and possession of a controlled substance but testified that the State had not offered him any plea agreement for those charges and that he was testifying of his own free will. Junior testified that he had seen Mirelez carrying around two pistols in a shoulder holster like the one in evidence. He said one pistol was black and silver and could not recall the other. Junior said that the pistol in evidence appeared to be the weapon he had seen Mirelez carry. Junior said he recalled that one of the pistols had an extended magazine. Junior testified that Senior does not like firearms and that neither he nor Senior own any pistols. Junior testified that the guns seized were Mirelez's guns. In an interview at the sheriff's office, Junior said that Mirelez told him that he (Mirelez) had put firearms in the back room of the house.

On cross-examination, Junior admitted he was convicted of the felony offense of assaulting a family member by impeding breath or circulation. He was aware that possession of a firearm would be a state and federal felony-one for which he was then charged and facing up to 99 years in prison. He testified that he expected nothing for his testimony. He testified that he had contact with Senior, but when confronted with a previous statement that he had previously told the defense attorney that he "didn't know where his dad lives nor does he have any contact with him," Junior confirmed that he had not had any contact since going to jail. Junior said his father had been evicted from the site of the pistol seizure and that he did not know where Senior had moved. In a recorded interview, Junior had described one of the guns as a Llama .380 and said, "I think" but also that "I know it was a 380." In the interview, he described the second pistol as "a 40." Junior acknowledged that a .380, a .40, and a 9 millimeter are different types of guns. Junior also testified that Mirelez offered to pay him for his testimony but admitted that Mirelez was not offering to free him from jail or return seized property.

Bryan Strong, a Texas Department of Public Safety crime laboratory forensic scientist, testified that many factors affect whether contact with a gun leaves a detectable latent print that can be examined, including the condition of the person's hands and the surface of the pistol. The grooved surfaces of the pistols would not retain a usable print, but smooth flat metal surfaces could. He found no suitable prints on the items seized during Mirelez's arrest. He testified that he had read an article that reported that usable fingerprints were found on firearms about 10% of the time and on ammunition less than 1% of the time; he speculated that magazines might be more likely to retain usable fingerprints. He tested the pistols, magazines, a holster, a tactical light, and 54 cartridges seized and found no prints on any of the items. At the end of the cross-examination, the following exchange occurred:

Q. Just closing out, are you familiar with Locard's Exchange Principle?

A. Yes, I am.

Q. Locard, he's one of the foundational scientists who created forensic science; that's correct?

A. His name is well known in the trace discipline.

Q. And would it be accurate to say that Locard's Principle is every contact leaves a trace?

A. That is the slogan that he is known for.

Strong's supervisor, Meghan Blackburn, testified that there is generally a 50% chance to find a friction ridge detail on an item. She testified DPS's DNA section would not test for DNA on weapons in a felon-in-possession case. She also testified that the processes for testing for fingerprints compromised or inhibited DNA evidence.

Scott Green testified that he had researched criminal history and confirmed that Senior has a felony DWI conviction. He also testified that a felon is entitled to own a weapon five years after either his parole lapses or he is released from supervision under state law. He said he understood that the ban extended for life under federal law, but did not know. The trial court declined to take judicial notice of federal law in an exchange set forth in detail below.

B. Challenged admission of testimony

By his second ground of error, Mirelez complains of the admission of testimony in which Johnston vouched for Senior's truthfulness. One witness's direct opinion as to another witness's credibility is generally inadmissible because it does more than assist the trier of fact to understand the evidence-it "decides" the issue for the jury. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993). Mirelez complains of this exchange that occurred during Mirelez's cross-examination of Johnston about what information...