Nos. 05-04-00389-CR, 05-04-00390-CR
Opinion Filed April 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-48341-Jm and F03-48342-RM. Affirmed.
Before Justices MORRIS, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Michael Osei appeals two convictions of aggravated assault on a public servant. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2004-05). Following a combined jury trial, the trial court assessed punishment at 40 years' confinement to begin after he completes a 50-year sentence for aggravated robbery. On appeal, appellant argues (1) the evidence is legally and factually insufficient to support the convictions, (2) the trial court erred in failing to obtain his plea to the enhancement paragraphs prior to the penalty phase, and (3) the judgment should be reformed to reflect a plea of not true to the enhancement paragraphs. We affirm.
Suffificiency of the Evidence
In issues one through four, Osei appeals the legal and factual sufficiency of the evidence to support his convictions. Specifically, Osei argues the evidence showed the gun fired accidentally and that he did not intend to injure the officers. Standard of Review
In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In a factual sufficiency challenge, we view the evidence in a neutral light, not favoring either side, and determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence may be found factually insufficient when the evidence supporting the verdict, when considered alone, is too weak to support the finding of guilt beyond a reasonable doubt or when the evidence supporting the verdict does not outweigh evidence contrary to the verdict strongly enough to meet the beyond-a-reasonable-doubt standard. Id. at 484-485. This review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact-finder, and any evaluation should not substantially intrude upon the fact-finder's role as the sole judge of the weight and credibility of the witnesses. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The reviewing court must always remain cognizant of the fact-finder's role and unique position of judging witness credibility and disagree with the fact-finder's determination only when the record clearly indicates it is necessary to prevent the occurrence of a manifest injustice. Johnson, 23 S.W.3d at 9. Otherwise, due deference must be accorded the fact-finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Id.; Jones, 944 S.W.2d at 648-49. Applicable Law
A person commits aggravated assault if the person intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.02(a)(2), 22.01 (Vernon Supp. 2004-05). The offense is a first degree felony if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. See Tex. Pen. Code Ann. § 22.02(b)(2) (Vernon Supp 2004-05). Discussion
On a cold and rainy night in February 2003, two men entered Diamond J's Beer and Wine convenience store in Dallas wearing blue surgical masks and brandishing guns. The shorter of the two men, later identified as Osei, carried a smaller weapon while the other man carried what appeared to be a shotgun. They demanded that everyone get down. The customers complied but Jamie, the owner's daughter who was tending the register, remained standing. Within seconds, a third man, also brandishing a gun but not wearing a mask, entered the store, said, "bitch, didn't you hear him say everybody get down," and fired his gun toward the floor in Jamie's direction. Jamie immediately got down on the floor. The men asked Jamie how to open the register and about the location of a safe. They told everyone to get up, and Osei moved Jamie and the customers to the back office while the other two men left the store. Then Osei left the store. A few seconds later, Jamie heard a "pop" outside. Meanwhile, Dallas police officers Darian Loera and Jacob White, dressed in full police uniforms and driving a marked police squad car, were patrolling the area when they observed two men leaving Diamond J's. Loera observed one of the men attempting to conceal a shotgun. White immediately stopped the car and Loera exited the vehicle, pointed his gun at them and ordered them to stop. When they refused, Loera pursued them on foot, yelling "stop, I'm police." As Loera approached the corner of the convenience store, he saw Osei walk out of the store. Osei began running when he saw the police. Loera turned to pursue Osei, yelling "stop, police, get on the ground." Osei kept running. As Loera chased Osei, White attempted to cut him off with the police car. Both officers testified that as Osei was running, he turned, raised his arm, pointed his hand at them and that they saw muzzle fire and heard a gunshot. They estimated the muzzle fire was about shoulder level, between four and five feet off the ground. Both officers testified the gun was not accidentally discharged. White immediately placed a call for officer assistance. Neither White nor Loera saw the gun or saw Osei throw it down. Loera and White, joined by other officers, continued to chase Osei until he was apprehended and arrested on the lawn of a nearby church. Also during this time, Rodney Allen was sitting in his car in the church parking lot listening to music when he saw a police car go by. Allen decided to leave and drove in the same direction as the police. When he saw the police car stop at Diamond J's and an officer jump out and start running toward the store, Allen also stopped and watched. He saw an officer chasing somebody and then saw the officer change directions and start chasing someone else, yelling "stop." But the man did not stop and the officer chased him in the direction of Allen's car. Allen saw the man make a "little spin move" like he was checking to see if someone was behind him. When this man made the spin move, Allen saw "fire" and heard a gunshot. Allen heard the officer holler "he's shooting at me." Allen did not know if the man had dropped the gun, threw the gun or whether it just "went off" but he saw "light in the air, three or four feet." Allen later saw this same man arrested at a nearby church but was unable to identify Osei as that man. Allen testified that he had no problem identifying Loera and White as police officers. After Osei's arrest, a 9mm semiautomatic pistol and shell casing were found near the area where the officers and Allen testified that Osei fired the gun. Forensics testing on the gun and casing determined the casing was fired from this gun. No usable fingerprints could be lifted from the gun because of the rain, but Jamie testified that this gun was the same gun that Osei carried that night. Forensics conducted a trigger pressure test and determined that between 9.24 and 10.029 pounds of pressure were required to pull the trigger. Forensics also conducted a drop test from different heights and determined that nothing caused the gun to discharge except pulling the trigger. We conclude the evidence is legally and factually sufficient to support appellant's convictions for aggravated assault on two public servants. We overrule appellant's issues one through four. Plea to Enhancement Paragraphs
In his fifth issue, Osei argues the trial court erred in failing to obtain his plea to the enhancement paragraphs prior to the beginning of the penalty phase of the trial. Osei argues that when prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that the Texas Code of Criminal Procedure requires that the enhancement portion of the indictment be read and that the court receive the defendant's plea before evidence is received at the penalty phase. See Tex. Code Crim. Proc. Ann. arts. 36.01, 37.07 (Vernon Supp. 2004-05). However, articles 36.01 and 37.07 do not require reading of the enhancement paragraph to the defendant and receiving his plea in the penalty phase of a bifurcated trial when punishment is tried to the court alone. Reed v. State, 500 S.W.2d 497, 499-500 (Tex.Crim.App. 1973); Simms. v. State, 848 S.W.2d 754, 755 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Nolan v. State, 624 S.W.2d 721, 724 (Tex.App.-Amarillo 1981, no pet.). Osei elected to have the trial court assess punishment, therefore it was not necessary that the enhancement paragraphs be read to him or that the trial court receive his plea. Appellant's fifth issue is overruled. In his sixth issue, Osei argues the judgments indicate he pleaded "true" to the enhancement paragraphs during the penalty phase and that the judgments should be reformed to reflect a plea of "not true" because the trial court never received his plea to the enhancement paragraphs. A reviewing court has the power to reform a judgment when it has the necessary information to do so. See Tex.R.App.P. 43.2(b); see also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd); Wynn v. State, 847 S.W.2d 357, 361 (Tex.App.-Houston [1st Dist.]), aff'd on other grounds, 864 S.W.2d 539 (Tex.Crim.App. 1993). However, we must presume that the defendant was arraigned and that he pleaded to the charging instrument unless it was disputed in trial or "unless the record affirmatively shows the contrary." Tex.R.App.P. 44.2(c)(3) and (4); Hazelwood v. State, 838 S.W.2d 647, 651 (Tex.App.-Corpus Christi 1992, no pet.). Silence is not an affirmative showing of the failure to read the enhancement paragraph or to plead to it. See State ex rel. Ownby v. Harkins, 705 S.W.2d 788, 791 (Tex.App.-Dallas 1986, no pet.); Salinas v. State, 888 S.W.2d 93, 101 (Tex.App.-Corpus Christi 1994, pet. denied); Hazelwood, 838 S.W.2d at 651. In this case, the judgments reflect that Osei pleaded "true" to the enhancement paragraphs but there is no indication in the record that the enhancement paragraphs were read or that appellant entered a plea. Osei did not object to the judgments at trial. And with no support in the record to affirmatively show that Osei pleaded not true to the enhancement paragraphs, we do not have the information necessary to reform the judgment as appellant requests. We affirm the trial court's judgments.