Opinion
04-21-00249-CR
06-15-2022
Stephen Ray BROWN, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 452nd District Court, Mason County, Texas Trial Court No. 204841 Honorable Robert Rey Hofmann, Judge Presiding
Sitting: Beth Watkins, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
A jury convicted appellant, Stephen Ray Brown, of aggravated assault with a deadly weapon and assessed punishment at twenty-five years' confinement. In a single issue on appeal, Brown asserts the evidence is legally insufficient to establish he used a deadly weapon in the commission of this offense. We affirm.
DISCUSSION
Brown does not dispute that he shot the complainant, Jeremy Couvillion, with a pellet gun. On appeal, he asserts the evidence is legally insufficient to establish that the pellet gun was used as a deadly weapon.
A. Applicable Law
We conduct a legal sufficiency review by looking at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We "defer to the jury's credibility and weight determinations because the jury is the 'sole judge' of witnesses' credibility and the weight to be given testimony." Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
"In order to be legally sufficient to sustain a deadly weapon finding, the evidence must show that (1) the deadly weapon meets the statutory definition; (2) the defendant used or exhibited the deadly weapon while committing the crime for which he was convicted; and (3) other people were put in actual danger." Butler v. State, No. 04-12-00699-CR, 2013 WL 4829137, at *2 (Tex. App.-San Antonio Sept. 11, 2013, no pet.) (mem. op., not designated for publication). As relevant here, the Texas Penal Code defines a "deadly weapon" to mean "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B); see also Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) ("The plain language of [Texas Penal Code section 1.07(a)(17)(B)] indicates that a deadly weapon finding will be sustained if the definition of a deadly weapon is met."). The "capability" of something being a deadly weapon "is evaluated based on the circumstances that existed at the time of the offense." Id. (determining whether motor vehicle was a deadly weapon); see also Romero v. State, 331 S.W.3d 82, 83 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (determining whether inmate's shank was a deadly weapon).
"Serious bodily injury" is defined to mean "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46).
"An object need not actually cause serious bodily injury or death to be a deadly weapon within the meaning of the Penal Code; however, the evidence must establish 'the actor intend[ed] a use of the object in which it would be capable of causing death or serious bodily injury.'" Vallado v. State, 350 S.W.3d 257, 260 (Tex. App.-San Antonio 2011, pet. ref'd) (quoting McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000)). "When the wounds caused by the weapon do not result in serious bodily injury or death, an object is a deadly weapon only if the State proves it '(1) was capable of causing serious bodily injury; and (2) was displayed or used in a manner that establishes the intent to use the [weapon] to cause death or serious bodily injury.'" Id. (quoting Lockett v. State, 874 S.W.2d 810, 814 (Tex. App.-Dallas 1994, pet. ref'd). On appeal, Brown only contends the pellet gun used does not meet the statutory definition of a deadly weapon. Therefore, the issue is whether Brown's pellet gun was "capable" of causing serious bodily injury. See Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (stating same).
B. The Evidence
Couvillion testified he ran his own construction company. At the time of the shooting, he employed, among others, Brown and Omar Martinez. On the morning of the shooting, Couvillion terminated Brown's employment. After speaking to Brown, Couvillion and Martinez drove to the work site. Couvillion said he did not expect Brown at the site "unless he was wanting trouble." As Couvillion and Martinez were standing between their vehicle and another truck preparing for their workday, they saw Brown drive up in his vehicle. Couvillion said he and Martinez were still standing between their two trucks when Brown walked up between them. Couvillion said the three men were standing close to one another. He did not see Brown pick up his gun, but when Couvillion turned around to face Brown, Brown had his gun raised and pointed at him. According to Couvillion, Brown said, "How do you like me now, mother [*]?" and then shot him. Couvillion said he blacked out and fell to the ground. When he thought Brown would shoot him again, he got in his truck and "tried to run [Brown] over and get away from him." He said Brown continued shooting at him and then started to swing his gun at Couvillion's truck breaking the windshield. Couvillion started to drive away, but then turned back to pick up Martinez. The two men drove to the Sheriff's Department where both spoke to Mason County Sheriff's Deputy George Escobar. When Couvillion began to feel sick, an ambulance was called, and he was taken to an emergency room.
Martinez testified Brown arrived at the worksite about five minutes after he and Couvillion arrived. He testified about what happened next:
Well, [Brown] and [Couvillion] had had an argument and [Brown] showed up with a rifle. I was exiting the truck when I seen [sic] him, and [Couvillion] was sitting in the driver's side and I told him, I said, [Brown] is here. And I guess he didn't hear me, and then [Brown] drove up right behind us and jumped out of the truck - out of his car and he had a rifle with him and I tapped the truck, and I said, he's got a rifle, and it went off and the first bullet or pellet hit me [sic] back, and I started towards the tree and he was headed towards [Couvillion] and then he came around the passenger side, and [Couvillion] was exiting the truck and going to the other truck, and [Brown] hit the windshield of the truck and said, how you like me now, bitch? And then went around to the driver's side, and [Couvillion] was coming back towards the truck and that's when [Brown] shot him with the pellet gun in the chest.
. . .
Well, [Brown] put his vehicle in park and then came around to the passenger side and - and he went to the front and hit the windshield with the rifle.
. . .
And then [Brown] went around to the driver's side and [Couvillion] was going towards his blue truck, and then [Couvillion] turned around and looked at [Brown] and that's when he shot him, and [Couvillion] - it kind of threw him back and then jumped in his truck, the white one, went over the hill and [Brown] - when he jumped back in the truck, kind of like hit [Brown] with the driver's door and then [Brown] jumped in his truck and followed after him. I just stayed up on the hill waiting for somebody to come back.
Martinez said Couvillion and Brown were about five to ten feet away from each other when Brown "stretched out his arm and shot [Couvillion]." Martinez thought three shots were fired. The first shot ricocheted off the truck and hit him in the back of his shoulder. He thought the second shot came when Brown hit the truck windshield with the butt of the gun causing the gun to fire "off itself." The third shot occurred after Brown reloaded the gun and shot at Couvillion.
Dr. David Matthew Young, the emergency room physician who treated Couvillion for his injuries, testified Couvillion came into the emergency room with a pellet gunshot wound to his right chest. Young described the wound as "potentially very serious." Although a small wound and not actively bleeding, Young stated the chest x-ray revealed Couvillion's lung was expanding. He said the pellet penetrated just inside the chest wall where it bruised the lung and caused a small pulmonary contusion. When asked if "this [was] a really close call into having a lung deflate," Young replied, "as close as it gets" "because [the pellet] did penetrate into the chest cavity" and if the pellet had gone in further, it would have collapsed the lung. Young said, "BB guns typically don't penetrate enough, but . . . pellet guns . . . when you think about it, you can kill a squirrel with it," and "[i]t will penetrate the skin." After consulting a cardiothoracic doctor, Couvillion decided to leave the pellet in Couvillion's chest because removing it might cause more damage. Couvillion said the doctor told him they could not guarantee the pellet would not move and lodge in his lung. For that reason, he was concerned about his work with heavy operating equipment.
Mason County Sheriff's Deputy George Escobar testified he was qualified in firearms, had been in law enforcement for fifteen years, and was familiar with pellet guns. Escobar described the gun as a "Benjamin" .177 caliber and firing the weapon required about thirty-five pounds of pressure to pump, as opposed to pellet guns that use pre-pressurized cartridges for firing. He stated a pellet gun is different from a BB gun because a pellet gun is more powerful. He stated, without objection, that the pellet gun in this case could be used or intended to be used as a deadly weapon and was capable of causing bodily injury, serious bodily injury, or death.
Mason County Sheriff Joseph Lancaster, who has been in law enforcement since 1988 and was also qualified in firearms, testified he was Chief Deputy at the Sheriff's Office at the time of the shooting. He testified, without objection, that the pellet gun in this case could in its manner and intended use cause bodily injury, serious bodily injury, or death. He also said the gun stated on its barrel that it was capable of causing death. Lancaster said he used other sources of information for his investigation, including "download[ing] all the information about the gun [and] capabilities." He stated, without objection, "[t]hat pellet gun has killed four people in the last year[.]"
C. Analysis & Conclusion
On appeal, Brown asserts the evidence is vague because the lethality of the pellet gun cannot be determined because there is no certainty as to the distance between Couvillion and Brown when the gun was fired; no evidence about the gun's specifications, its muzzle velocity, or about how a projectile decelerates over a known distance; and no indication of the reliability of Lancaster's "sources."
Despite the lack of specificity in some of the testimony, we "defer to the jury's credibility and weight determinations because the jury is the 'sole judge' of witnesses' credibility and the weight to be given testimony." Garcia, 367 S.W.3d at 687. Dr. Young testified the gunshot wound was a "close call" and both law enforcement officers testified the pellet gun Brown used was capable of causing serious bodily injury or death. Lancaster testified he was aware of four deaths caused by a pellet gun. The gun barrel stated it could cause death.
We conclude the evidence provided information upon which the jury could reasonably find the pellet gun used was capable of causing serious bodily injury. See Adame, 69 S.W.3d at 581 (police investigator testified appellant's BB gun "could cause serious bodily injury if it were pointed and fired at someone"); Butler 2013 WL 4829137, at *2 (detective testified "he was aware of cases where people have been seriously injured or killed by BB guns such as the ones used by appellant and the co-defendant during the robbery. He also testified there is a warning on the BB gun itself that states "Misuse may cause serious injury."). Accordingly, the evidence was legally sufficient to support a deadly weapon finding. We affirm the trial court's judgment.