Opinion
No. 05-06-00980-CR
Opinion issued January 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MA05-56633-K.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
A jury convicted Brady Bernard Hayes of deadly conduct. The trial judge assessed punishment at three days in the county jail. In a single issue, appellant contends the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment. 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.), cert. denied, 128 S.Ct. 282 (U.S. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (U.S. 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. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a conviction for deadly conduct, the State was required to prove beyond a reasonable doubt that appellant recklessly engaged in conduct, by pointing a firearm at or in the direction of Andre Samples, that placed Samples in imminent danger of serious bodily injury. See Tex. Pen. Code Ann. § 22.05(a) (Vernon 2003). The jury was instructed that recklessness and danger are presumed if appellant knowingly pointed a firearm at or in the direction of Samples whether or not appellant believed the firearm was loaded. See Tex. Pen. Code Ann. § 22.05(c) (Vernon 2003). The offense occurred on the evening of June 10, 2005, when Samples, one of appellant's neighbors and a distant cousin, went to appellant's house to watch a basketball game and play cards. Samples and appellant played cards in the garage. During their games, Samples accused appellant of cheating and appellant accused Samples of cheating. Appellant called Perry Blouin, another neighbor, and asked him to come act as referee for the games. After Blouin arrived, appellant and Samples continued playing cards. During one game, appellant threw his cards on the table, reached behind his back, and pulled out a gun. Blouin got up from the table and left the garage. Samples left the garage a short time after Blouin. At trial, Samples testified he was afraid appellant was going to shoot him because appellant began waving the gun around and pointed it directly at Samples. Samples testified he sat across the table from appellant and watched appellant cock the gun and keep his finger on the trigger the entire time he held the gun. A short time after Blouin left the garage, he called appellant's cell phone. While appellant talked with Blouin, Samples "maneuvered around some items in the garage and eased out the door." Samples ran to his house and called the police. Samples testified that while appellant was talking on his cell phone, he heard appellant say he was going to shoot Samples. Blouin testified he never saw appellant point the gun at Samples and never heard appellant threaten to shoot Samples. According to Blouin, appellant accused Samples of cheating. Appellant "got mad," pulled out his gun, placed it on the table, and said, "[L]et's finish playing." Blouin stood up and told Samples it was time to go. Blouin initially testified he and Samples left the garage at the same time, with Samples walking towards the alley and Blouin walking the opposite direction towards the front yard. During cross-examination, Blouin testified that when he walked outside the garage door, Samples was still standing up across the table from appellant. After Blouin left the garage, he called appellant's cell phone and asked appellant why he pulled out a gun. During his conversation with appellant, Blouin did not hear appellant say he was going to shoot anyone. Blouin testified he did not see where the barrel of the gun was pointing when appellant placed it on the table, but Samples was sitting across from appellant. Appellant testified he did not wave the gun around the room, point it at Samples, or threaten to shoot Samples. Appellant admitted the gun was loaded when he pulled it out, but denied he cocked it. After he put the gun on the table, appellant said, "[O]kay let's play." Appellant testified Blouin stood up, told Samples it was time for them to leave, then walked out of the garage. Samples had a "couple words" with appellant first, then he also left the garage. Appellant testified he wanted to keep playing cards because he intended to beat Samples. Appellant testified that although the barrel of the gun was pointing away from him and towards the wall where Samples was sitting, he did not intend it to be a threat. Appellant did not recall Blouin calling his cell phone or talking to Blouin until after the police arrived. Appellant argues the evidence is factually insufficient because he did not point a firearm at Samples or in his direction and did not place Samples in imminent danger of serious bodily injury. Appellant asserts his and Blouin's testimony shows appellant did not point a gun at Samples. The State responds that the evidence is factually sufficient to support appellant's conviction for deadly conduct. There was conflicting evidence presented to the jury. Samples testified he saw appellant cock the gun and point it directly at him. Samples also testified that when appellant was talking on his cell phone with Blouin, he heard appellant say he was going to shoot Samples. However, Blouin testified appellant pulled out the gun and placed it on the table, and that he did not see appellant wave the gun or point it at Samples. Blouin did not recall whether the barrel of the gun was pointing towards Samples, but admitted Samples was sitting across the table from appellant. Blouin also testified he left the garage and called appellant's cell phone to ask appellant why he pulled out a gun. Appellant admitted he pulled out a gun, but denied he pointed it at Samples. Appellant testified he put the gun on the table with the barrel pointing away from him, and admitted it was pointing towards the wall where Samples was sitting. Appellant also testified he did not recall Blouin calling his cell phone or talking with Blouin until after the police had arrived. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury is in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant committed the offense of deadly conduct and is factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Johnson, 23 S.W.3d at 8. We overrule appellant's sole issue. We affirm the trial court's judgment.