Nos. 05-08-01128-CR, 05-08-01129-CR, 05-08-01130-CR, 05-08-01131-CR, 05-08-01132-CR
Opinion issued August 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause Nos. F03-14123-L, F03-25705-JL, F03-25706-JL, F03-40479-WL, F08-23394-MPL.
Before Justices FITZGERALD, LANG, and FILLMORE.
Opinion By Justice FITZGERALD.
Kit Sin Duong appeals his convictions for possession of cocaine, deadly conduct, and aggravated assault with a deadly weapon. In two points of error, appellant contends the evidence is factually insufficient to prove an aggravated assault and overcome self-defense. We affirm the trial court's judgment as modified in one case and affirm the judgments in the remaining four cases.
Background
Appellant waived a jury and pleaded guilty to possession of cocaine in an amount of less than one gram (cause no. 05-08-01128-CR); deadly conduct (cause no. 05-08-01129-CR); aggravated assault with a deadly weapon, a firearm (cause no. 05-08-01130-CR); and possession of cocaine in an amount of one gram or more, but less than four grams (cause no. 05-08-01131-CR). See Tex. Health Safety Code Ann. § 481.115(a), (b), (c) (Vernon 2003); Tex. Penal Code Ann. §§ 22.02(a)(2), 22.05(b) (Vernon 2003 Supp. 2008). Appellant also pleaded true to two enhancement paragraphs in each case. Pursuant to plea agreements, the trial court deferred adjudicating guilt and placed appellant on ten years' community supervision in each case. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision in each case by committing a new aggravated assault offense (cause no. 05-08-01132-CR). Appellant pleaded not true to the allegation in a hearing on the motions. The trial court granted the State's motions, adjudicated appellant guilty, and assessed punishment at nine years' imprisonment in each case. In the new aggravated assault with a deadly weapon case, appellant waived a jury and pleaded not guilty before the court. After hearing testimony from the complainant and appellant, the trial court found appellant guilty and assessed punishment at nine years' imprisonment. An appellant's brief must contain a clear and concise argument for the contentions made. See Tex. R. App. P. 38.1(h). Although appellant's brief lists all five of the cases when he presents his issues on appeal, he specifically contends that the evidence is factually insufficient to support his conviction only in the new aggravated assault case. Because appellant has failed to make any cogent arguments concerning any issues in the first four cases, he has not presented anything for appellate review in those cases. See Tex. R. App. P. 38.1(h); see also Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App. 2000) (It is not the responsibility of an appellate court to formulate arguments for an appellant where an issue is inadequately briefed.). Accordingly, we overrule appellant's first point of error to the extent it includes cause nos. 05-08-01128-CR, 05-08-01129-CR, 05-08-01130-CR, and 05-08-01131-CR. Applicable Law
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). Evidence Presented
Al Vo, the complainant, testified he attended a grand opening party for a recording studio located in Garland. Appellant was also at the party. When Vo came out of the restroom, appellant confronted him by asking if Vo had a problem with appellant. Vo saw that appellant was getting "more mad at something." Vo testified he believed appellant was mad about an altercation that had occurred at a club ten years ago that involved Vo and someone else. Vo testified that after appellant questioned him, appellant took off his shirt, grabbed a liquor bottle, and threw it at Vo but missed. Appellant and Vo began hitting each other with their fists. Vo did not see anything in appellant's hands. Sometime during the fight, Vo heard four gunshots. Vo backed away from appellant and saw a gun in appellant's hand. Everyone at the party froze. Vo did not realize he had been shot in the leg. When appellant advanced toward Vo while holding the gun, another man at the party grabbed appellant from behind. Vo helped the man wrestle with appellant for the gun, during which time two more gunshots were fired. The man eventually took the gun away from appellant. At that point, Vo realized he had been shot in the leg. The man who had taken the gun from appellant helped Vo through the back exit to Vo's car. Vo testified he drove home because he did not want to talk to the police and he did not realize how badly he was injured. Four days after the shooting, Vo went to the police station and talked with a detective. After giving a statement, Vo looked at a photographic lineup and selected appellant's picture as the shooter. The detective asked paramedics to look at Vo's wound. The paramedics cleaned the wound and told Vo to go to the hospital for x-rays. At the hospital, doctors told Vo he had a fracture and nerve damage, but there were no projectiles in the leg. The bullet had entered Vo's left knee and exited his left calf. Vo testified he felt pain when appellant shot him, and he sometimes still had trouble walking. Vo showed the trial court the entrance and exit wounds on his left leg. Detective William Ellstrom testified officers arrived at the shooting scene at 3:15 a.m., but he did not arrive until 4:30 a.m. When the officers went inside the business, they found evidence of illegal gambling, several shell casings, and blood stains that were near the back door. They did not locate anyone who was bleeding. The officers transported several witnesses to the station for interviews. Appellant had been found hiding in some bushes in front of the business. Appellant did not have any weapons on his person. Officers searched the area and vehicles at the location, but did not find any weapons. Appellant was arrested and transported to the station. Ellstrom testified he did not receive any useful information from appellant or the witnesses, so he released appellant the next day. Several days later, Vo came into the station. During an interview, Ellstrom learned Vo was the shooting victim that the officers were unable to locate. Vo gave a written statement, then he picked out appellant's picture from a photographic lineup as the shooter. Ellstrom saw Vo's gunshot wound and asked paramedics to evaluate the injury. Appellant denied shooting Vo or even possessing a gun. Appellant testified he was invited to the party by the owner of the recording studio. Appellant saw Vo standing with four other men at the party. One of the men kept staring at appellant, so appellant asked the man why was he staring. Vo asked appellant what was his name, then Vo reminded appellant about "some altercation between a group of guys who was his group and then my friends" that had occurred ten years ago. Vo and his four friends jumped on appellant and began hitting him. Appellant covered his face while the men hit him. Appellant heard four or five gunshots. As appellant tried to run to the back exit, he fell to the floor. Appellant testified he saw blood on the carpet. When appellant fell down, the other men ran away from the business. Several people who were there gambling helped appellant get away through the front door. Appellant ran outside and hid in the bushes until a police dog found him. Appellant testified he did not see any weapons in Vo's hands or any of the other men's hands, and he only heard one set of shots that sounded in rapid succession. Discussion
In his first point of error, appellant contends the evidence is factually insufficient to prove aggravated assault because Vo's testimony was inconsistent, contradictory, and not believable. Appellant asserts there was no evidence he used a deadly weapon, there was no medical evidence presented showing Vo's injuries resulted from being shot, and appellant heard four or five gunshots as he tried to flee from Vo and others who were hitting him. The State responds that the evidence is factually sufficient to support the conviction. In the new aggravated assault case, the trial court heard Vo's testimony that appellant verbally confronted him before the physical fight began. After hearing four gunshots, Vo saw appellant holding a gun in his hand. Vo helped another man wrestle the gun away from appellant before he realized that he had been shot in the leg. The trial court saw the entrance and exit wounds on Vo's left leg, and heard Ellstrom's testimony that paramedics cleaned the wounds four days after the shooting and told appellant to go to the hospital for x-rays. The trial court also heard appellant's version of events. Appellant denied shooting Vo, denied that he had a gun, and denied seeing anyone at the party with a weapon. According to appellant, Vo and four other men jumped him and hit him repeatedly. While appellant tried to cover his face, he heard four or five gunshots. As the fact finder in this case, it was the trial judge's role to reconcile the conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). Viewing all of the evidence under the proper standard, we conclude it is factually sufficient to support appellant's conviction for aggravated assault with a deadly weapon. See Roberts, 220 S.W.3d at 524. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to overcome self-defense. Appellant asserts that if the fact finder believed Vo's testimony that appellant had a gun, it would necessarily follow that use of the gun was warranted because appellant had been attacked by four men. The State responds that appellant's self-defense claim is not preserved for appellate review because appellant presented a different claim at trial. To raise an issue of self-defense, one must admit the assaultive conduct but provide evidence showing the conduct was justifiable. See East v. State, 76 S.W.3d 736, 738 (Tex.App.-Waco 2002, no pet.); see also Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999). While appellant need not admit the commission of every statutory element of the offense, he must admit committing the conduct giving rise to the indictment. See Jackson v. State, 110 S.W.3d 626, 631 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). There was no evidence presented to the trial court that raised the issue of self-defense. The record shows appellant denied that he possessed a gun or shot Vo. During final argument, trial counsel argued, assuming Vo's testimony was truthful, that appellant acted in self-defense when Vo and another man tried to wrestle the gun away from him. Counsel's argument, however, is not evidence. See Mata v. State, 1 S.W.3d 226, 228 (Tex.App.-Corpus Christi 1999, no pet.). Moreover, it conflicts with appellant's testimony denying he possessed a firearm. Because appellant did not testify he shot Vo in self-defense, and because his self-defense claim on appeal differs even from the self-defense claim counsel attempted to raise at trial, appellant has failed to preserve this issue for our review. See Tex. R. App. P. 33.1; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (defendant fails to preserve error for review when objection in trial court differs from complaint on appeal). Accordingly, we overrule appellant's second point of error. We note that during the hearing, appellant pleaded not true to the allegation in the State's motions to adjudicate in four cases. However, the trial court's written judgment adjudicating guilt in cause no. 05-08-01129-CR recites appellant pleaded true to the motion to adjudicate. Thus, the trial court's judgment is incorrect. In cause no. 05-08-01129-CR, we modify the trial court's judgment to reflect appellant pleaded not true to the motion to adjudicate. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Conclusion
In cause nos. 05-08-01128-CR, 05-08-01130-CR, and 05-08-01131-CR, we affirm the trial court's judgments adjudicating guilt. In cause no. 05-08-01129-CR, we affirm the trial court's judgment adjudicating guilt as modified. In cause no. 05-08-01132-CR, we affirm the trial court's judgment.