Page 127 - 2019 A Police Officers Guide

Counts III and IV charged Suarez with possession of unregistered firearms—the Winchester and
the Ithaca—in violation of 26 U.S.C. § 5861(d). “[P]ossession may be actual or constructive.”
Constructive possession is established when the evidence supports “a plausible inference that the
defendant had knowledge of and access to the weapon or contraband.”

Police found parts of the Winchester in plain sight and close proximity to Suarez, who was an
overnight guest in the house.3 Gutierrez and Benavides testified that Suarez knew of the
Winchester and sometimes carried a sawed-off shotgun during drug deals. The Government
therefore met its burden to establish constructive possession.

The evidence is also sufficient to support the conviction as to Count IV, involving the Ithaca.
Puckett testified that Suarez was usually at the house when Puckett purchased drugs and that the
Ithaca shotgun was “always” by the dresser in the master bedroom. Though Gutierrez testified
that neither she nor Suarez knew the Ithaca shotgun was in the house, a reasonable jury could
have credited Puckett’s testimony over Gutierrez’s. Puckett’s testimony supports an inference of
constructive possession.

For the foregoing reasons, Suarez’s convictions on all counts are AFFIRMED. However, we
VACATE the district court’s sentencing order as to Count II and REMAND for resentencing.

th
th
U.S. v. Suarez, 5 Cir, No. 16-41267, Jan. 12 , 2018.
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AGG. ASSAULT – ELEMENTS

Robert Rodriguez assaulted a man, shattering the victim’s knee and causing him serious bodily
injury. Rodriguez contends that, while he intended to cause some bodily injury to the victim, he
did not honestly believe that his actions would result in serious bodily injury. Rodriguez claims
he should have received a jury instruction that, if his belief was reasonable under the
circumstances, he should be convicted only of misdemeanor assault.
We disagree.

Robert Rodriguez and his brother assaulted Francisco Plaud-Acosta in a nightclub parking lot.
Francisco’s knee was badly damaged as a result. “It required surgery, followed by a long
recovery period and physical therapy.” It is unlikely that Francisco’s knee will ever regain its
pre-injury form.
The State’s theory was that Francisco’s assault took place in the course of a carjacking.
Rodriguez was charged with aggravated robbery and aggravated assault.

Both sides elicited testimony suggesting that an injury of this severity was not reasonably
foreseeable, given its (relatively) low-impact cause.
When both sides rested and closed, the jury charge was drafted. The charge included the
following instruction:
Transferred Intent
The State’s accusation is that the defendant intentionally or knowingly caused serious bodily
injury to Francisco Plaud-Acosta.

A Peace Officer’s Guide to Texas Law 119 2019 Edition