No. 05-02-01659-CR No. 05-02-01660-CR
Opinion Filed July 11, 2003 Do Not Publish
On Appeal from the Judicial District Court No. 291, Dallas County, Texas, Trial Court Cause No. F02-33745-TU, F-02-33746-TU AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice O'Neill.
Appellant appeals two convictions for aggravated assault. After finding appellant guilty, the trial court assessed punishment at fifteen years' confinement in each case. In five points of error, appellant generally contends (1) the evidence is legally and factually insufficient to support his convictions, (2) the trial court erred in admitting a prior conviction, (3) he did not voluntarily waive his right to a jury trial, and (5) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgments.
Background
The grand jury indicted appellant for two cases of aggravated assault alleging he threatened two neighbors, Vicki Versluis and David Grider, with a deadly weapon. The assaults occurred after an altercation appellant had with his live-in girlfriend, Betty Elaine Ward. At trial, the State presented evidence that on Valentines Day 2002, appellant and Ward went out for drinks. When they were driving home, appellant and Ward argued, and appellant struck Ward twice. When they reached their house, Ward got out of the car and ran toward the house. However, appellant tackled her in the driveway and began beating her. Appellant told Ward if she called the police, he would kill her. He then left in his car. Ward did not have a key to the house and used a credit card to enter. She then called police, who responded shortly thereafter. After reporting the offense to police, Ward decided to spend the night at her neighbor Vicki Versluis's house. Ward began packing and took about $200 in change she and appellant had been saving. Versluis stayed with Ward while she packed. Before they could leave, appellant returned to the house. Ward dialed 911 on a cordless phone and gave the phone to Versluis. Ward then ran out the front door, and Versluis ran out the back door carrying the cordless phone. Meanwhile, appellant entered the house and, apparently seeing the change was missing, retrieved a shotgun and confronted Versluis in the driveway. Appellant pointed the shotgun at Versluis and said, "where is my fucking money, bitch?" Versluis told appellant she did not have his money. Appellant responded, "You want to get fucking blown away, bitch?" Versluis, who was still on the cordless phone, told appellant she was speaking to the police. Appellant snatched the phone from Versluis and threw it to the ground. At that point, David Grider walked up the driveway. Appellant then pointed the gun at Grider. Appellant was very intoxicated and kept talking about his money, and threatened to "blow them all away." Appellant eventually got back in his vehicle and drove away. Officer C.W. Shouse encountered appellant leaving the scene in his car. Shouse attempted to stop appellant, but appellant sped up. Appellant continued to drive for four or five miles before he finally stopped. In closing argument, appellant did not dispute that he committed the offenses as alleged in the indictment. Instead, he asserted he was not guilty because he was justified in using deadly force in the defense of his property. By finding appellant guilty, the trial court impliedly found against appellant on this issue. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support the trial court's implied finding. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The trial court, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trial court may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A trial court is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the trial court's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the trial court's findings so as to avoid substituting our judgment for that of the trial court. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. A person unlawfully dispossessed of property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to recover the property if the actor uses the force immediately or in fresh pursuit after dispossession and: (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor, or (2) the other accomplished the dispossession using force, threat or fraud against the actor. Tex. Pen. Code Ann. § 9.41(b) (Vernon 2003). A person is justified in using deadly force against another to protect property if: (1) he could otherwise use force, (2) when and to the degree he reasonably believes deadly force is immediately necessary to prevent the other, who is fleeing immediately after committing burglary, robbery, aggravated robbery or theft during the nighttime, from escaping with the property, and (4) he reasonably believes the property cannot be recovered by any other means. See Tex. Pen. Code Ann. § 9.42 (Vernon 2003). A reasonable belief is a belief that would be held by an ordinary and prudent person in the same circumstances as the actor. See Tex. Pen. Code Ann. § 1.07(42) (Vernon 2003). If the evidence raises defense of property, the State has the burden of persuasion in disproving the defense. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). Proving the offense beyond a reasonable doubt satisfies the State's burden. Id. Appellant asserts the evidence is legally and factually insufficient to support the trial court's implied finding against him on the defense of property issue. Specifically, he asserts the evidence at trial showed he was justified in using deadly force to protect his personal property, specifically, the change Ward had taken from his house. He asserts that, from his perspective, he reasonably believed Versluis and Grider were "potential suspects" in the "theft." Because appellant did not testify at trial, the only evidence raising the defense showed that appellant, in his intoxicated state, threatened to kill Versluis and Grider because he thought they may have taken his change. However, the State also presented evidence that when appellant approached Versluis, he knew she was on the phone with police, yet he grabbed the phone from her, threw it to the ground, and then threatened to kill her. When Grider later approached the driveway from the street, appellant turned the gun on him and threatened to blow them "all" away. After appellant threatened to kill Versluis and Grider, he did not seek the help of police, but rather fled from them. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could clearly conclude appellant either did not reasonably believe (1) that Versluis or Grider had taken his change, or (2) that deadly force was immediately necessary to recover his property. We have also viewed all the evidence in a neutral light. After doing so, we cannot conclude (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11. We overrule appellant's first and second points of error. In his third point of error, appellant contends the evidence is insufficient to prove a prior conviction. At the punishment phase, the State offered a pen packet to prove appellant had a prior felony conviction. Appellant objected to the pen packet because there were no fingerprints to prove appellant was the same person previously convicted. The trial court overruled appellant's objection. In this point, appellant contends the trial court erred in overruling his objection because of the lack of fingerprint evidence. We begin by noting that, contrary to appellant's suggestion, fingerprint evidence is not the only manner the State can use to prove a defendant was the same person previously convicted. See Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1987) (op. on reh'g). Specifically, photographs made available to the factfinder for comparison with the accused can provide the independent evidence necessary to prove the accused was previously convicted. Williams v. State, 946 S.W.2d 886, 895 (Tex.App.-Waco 1997, no pet.). In this case, the pen packet contained a photograph of the person previously convicted. The factfinder could compare appellant's in-court appearance with that photograph. See id. Therefore, the trial court did not abuse its discretion in admitting the pen packet. See id. We overrule appellant's third point of error. Appellant's fourth and fifth points of error concern appellant's agreement to waive his right to a jury trial in exchange for the State dismissing two enhancement paragraphs. The record shows that appellant's case was initially set for a jury trial. However, before trial, if appellant agreed to waive his right to a jury trial, the State offered to (1) drop two enhancement allegations and (2) agree to a ten-year cap on punishment. Appellant rejected that offer. However, the following day, appellant requested his attorney to ask the prosecutor if the offer was still open. The prosecutor would no longer agree to a ten-year cap, but did agree to dismiss the enhancement paragraphs. Appellant accepted the new offer. In accordance with the agreement, appellant waived his right to a jury trial, in writing, in open court with the consent and approval of the trial court and the State. See Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). In exchange, the State dismissed the enhancement paragraphs thereby reducing the range of punishment from twenty-five years to life to two to twenty years. In his fourth point of error, appellant contends he did not voluntarily waive his right to a jury trial. According to appellant, his jury waiver was not voluntary for the sole reason that it was induced by the State's agreement to dismiss the two enhancement paragraphs. Appellant does not dispute that the State complied with its side of the agreement and that he received the benefit of that agreement. We fail to see how appellant's informed decision to waive a jury trial in exchange for a benefit received would render his waiver involuntary. We overrule appellant's fourth point of error. In his fifth point of error, appellant contends he received ineffective assistance of counsel. In this point, appellant asserts his trial counsel was ineffective for failing to insist that the State's first offer be specifically performed. However, the record shows appellant rejected this offer. Therefore, there was no agreement and appellant was not entitled to specific performance. See Salinas v. State, 810 S.W.2d 855, 857 (Tex.App.-Corpus Christi 1991, pet. ref'd). We overrule appellant's fifth point of error. We affirm the trial court's judgments.