No. 14-08-00880-CR
Opinion filed November 3, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 400th District Court, Fort Bend County, Texas, Trial Court Cause No. 42632.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
ADELE HEDGES, Chief Justice.
A jury found appellant, Daniel Shaffer, guilty of aggravated assault with a deadly weapon. On appeal, appellant challenges whether the evidence is factually sufficient to uphold his conviction. We affirm.
BACKGROUND
On June 12, 2005, Terry Gordon and Arturo Zarate left a restaurant bar shortly before it closed. Stafford Police Officer Alex Reyes was on duty in the parking lot of the bar that night, monitoring the exiting crowd of patrons. Gordon and Zarate were part of a group of five and all had shared several pitchers of beer before leaving the bar. As the group traversed the parking lot to go home, Gordon and Zarate began "horseplaying" with one another, talking loudly and roughly. Appellant was also in the parking lot with a couple of friends standing next to appellant's car. Appellant's group and Gordon and Zarate's group did not know one another. It is undisputed that appellant retrieved his gun from his car, and an oral confrontation between Gordon and appellant occurred. Gordon then yelled for help from the police and signified that appellant was pointing a gun at him. Officer Reyes, parked a few feet from appellant's car and the scene of the confrontation, pointed his gun at appellant, and ordered him to come forward. Appellant ran from Officer Reyes but was tackled by Reyes in the parking lot. Another officer retrieved a handgun near the location where Reyes had tackled and arrested appellant. At trial, Gordon testified that appellant's friend pulled a gun on him first before the confrontation escalated, and appellant subsequently pointed the same gun at Gordon while threatening to kill Gordon. Gordon acknowledged that he was angry at appellant for pulling a gun on him and uttering a racial slur. Zarate, who was nearby Gordon during the confrontation, saw only appellant pull a gun. Also, Zarate testified that he saw appellant discard a gun before he started running from the police. In contrast to Gordon's and Zarate's testimony, appellant testified that he had a gun but claimed he kept it in his waistband and never threatened anyone. A grand jury indicted appellant for aggravated assault with a deadly weapon. After appellant pleaded not guilty, a jury convicted him and assessed his punishment at two years in state prison; the sentence was subsequently suspended and appellant ordered to community service. On appeal, appellant challenges whether the evidence is factually sufficient to uphold his conviction. STANDARD OF REVIEW
In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust, or (2) considering the conflicting evidence, the jury's verdict is greatly against the great weight and preponderance of the evidence. Id. at 414-15, 417. We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. at 417. A reviewing court's evaluation should not intrude upon the factfinder's role as the sole judge of the weight and credibility given to any witness's testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). FACTUAL SUFFICIENCY
In his sole issue, appellant contends that the evidence is factually insufficient to support the jury's finding of aggravated assault with a deadly weapon. A person commits aggravated assault with a deadly weapon when he or she intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE § 22.02(a)(2). Appellant specifically argues that the testimony of key defense witnesses was unreliable due to (1) alcohol consumption at the time of the events in question; (2) perceived contradictions between witnesses' recollections; and (3) a possible motive to testify falsely. Appellant first argues that the consumption of alcohol by the two key witnesses for the State, Gordon and Zarate, impaired their powers of perception to such a degree that their testimony was unreliable. However, it is up to the jury to determine the degree to which a witness's intoxication bears upon their credibility. See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). In this case, the jury was within its authority in determining that the intoxication of Gordon and Zarate did not completely erode their credibility as witnesses. Nothing in the record mandates a contrary conclusion. Appellant next argues that the jury's reliance upon Gordon and Zarate's testimony, in concluding that appellant intentionally threatened Gordon with imminent bodily injury, was manifestly unjust because their testimony was contradictory. For example, appellant points out that Gordon testified that both appellant and appellate's friend pulled a gun, while Zarate testified that he saw only appellant pull a gun, despite standing just behind appellant during the incident. Further, appellant highlights Zarate's claim that he saw appellant get rid of the gun before he ran from the police. However, an appellate court must defer to a jury's determination regarding the weight it attributes to contradictory testimony since it makes this decision based upon an evaluation of the credibility and demeanor of the witnesses at trial. Johnson, 23 S.W.3d at 8; see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008) ("As we explained in [ Johnson], an appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge."). In making its determination, a jury is free to believe or disbelieve a witness or any portion of his or her testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). In short, the jury was free to believe all of Gordon's testimony or all of Zarate's testimony or merely portions of each. The important factor is that there was sufficient evidence to support the verdict in either of their testimony as well as in combined portions of their testimony. Finally, the appellant argues that Gordon's testimony was unreliable because his testimony reveals a motive to testify falsely. In this case, Gordon admitted that he was angry with appellant for having pointed a gun at him and uttering a racial epithet. The jury, however, was within its authority to refuse to find that Gordon's bias would lead him to falsify his testimony to exact revenge on appellant. See Gonzalez v. State, 63 S.W.3d 865, 874 (Tex. App.-Houston [14th Dist.] 2001), aff'd on other grounds, 117 S.W.3d 831 (Tex. Crim. App. 2003)). Accordingly, we conclude that the evidence sufficiently establishes the jury's finding of aggravated assault with a deadly weapon. We affirm the trial court's judgment.