No. 05-06-01272-CR
Opinion Filed June 26, 2007. DO NOT PUBLISH, Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F05-26300-J.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT
ELIZABETH LANG-MIERS Justice.
A jury convicted appellant James Ray Curry of aggravated assault. During the punishment phase, appellant pleaded true to two enhancement paragraphs describing his prior convictions for burglary of a habitation and possession of a controlled substance, and the trial court assessed punishment at thirty years' confinement. In two issues, Appellant argues his conviction should be reversed and remanded because (1) his indictment was not included in the original clerk's record, and (2) the evidence is factually insufficient to support the jury's guilty verdict. We affirm the trial court's judgment. Tex. R. App. P. 43.2(a). Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
Factual and Procedural Background
On April 9, 2005, Rashell Deering and her cousin Elaine Holdridge were driving past a church in Garland, Texas. They saw a car parked on the church's grass and also saw appellant fighting with a woman they later learned was named Tariea Smith. Deering immediately called 911. As Deering and Holdridge got closer, they saw appellant hit Smith multiple times, knocking her to the ground. They also heard appellant and Smith yelling but could not hear what was being said. When Smith got up and attempted to walk away, appellant returned to the car that was parked on the grass and retrieved a silver .32-caliber revolver from the trunk. Appellant caught up with Smith and pointed the gun at her. Smith yelled "No!" and, according to Deering, threw her purse at appellant. Appellant fired at least one shot from the revolver, and the bullet hit the ground near Smith. Shortly thereafter, a Garland police officer arrived on the scene and appellant took off running. The officer chased appellant through a residential area, where he was later apprehended by another Garland police officer. After appellant fled from the church lot, Deering and Holdridge approached Smith. Deering and Holdridge described her as "visibly shaken" and "hysterical." During this time, Deering remained on the phone with 911, relaying the events to the operator as they occurred. Smith then identified appellant by name and told Deering and Holdridge, "He shot at me. He tried to kill me." Garland police took Smith to the police station and interviewed her. During her interview with the police, Smith described a history of domestic violence and said that appellant was "the jealous type person." However, Smith denied that appellant pointed the gun at her and refused to give a written statement to the police. Appellant did not have a weapon when he was apprehended by the police. But the police later retraced the path of the foot chase and recovered appellant's silver revolver in a residential trash can located in an alley along that path. The parties stipulated to the written testimony of Ronald Crumley, a firearms and ballistics examiner for the Texas Department of Public Safety. He testified that the bullet recovered from the crime scene was fired by the revolver found by police. The uncontroverted evidence also established that the gun did not contain any empty shell casings and no shell casings were recovered by the police. The Missing Indictment
In his first issue, appellant argues that his conviction should be reversed and remanded because the original clerk's record did not contain a copy of his indictment, as required by Rule 34.5(a)(2) of the Texas Rules of Appellate Procedure. Appellant's only complaints concerning the missing indictment are that "there is no proof that the requirements of [Texas Code of Criminal Procedure] article 21.02 were met nor can it be shown that the indictment was sufficient to comply with the example provided by [Texas Code of Criminal Procedure] [a]rticle 21.16." The record does not state when the original indictment was lost. However, during his arraignment, appellant's indictment was read to him in front of the jury and he responded with a plea of not guilty. After appellant filed his appellate brief and pointed out that the indictment was noted as "Not Found" in the index to the clerk's record, the State moved this Court to abate this appeal so that the State could properly supplement the record with a copy of the indictment, as permitted by article 21.25 of the Texas Code of Criminal Procedure. We granted the State's motion and abated this appeal. Thereafter, the State presented the trial court with a substituted copy of the indictment and, on March 1, 2007, the trial court entered an order substituting the indictment. See Tex. Code Crim. Proc. Ann. art. 21.25 (Vernon Supp. 2006). That order and the substitute indictment were filed with this Court in a supplemental clerk's record and this appeal was reinstated. See Tex. R. App. P. 34.5(c)(3), (e). Appellant does not contend that the substituted indictment is defective or improper. Consequently, appellant's only complaint, that the original indictment was missing, was remedied with the filing of the supplemental clerk's record. We overrule appellant's first issue. Factual Sufficiency
In his second issue, appellant argues that the evidence is factually insufficient to support his conviction because (1) Smith told police that appellant pointed the gun at the ground and never pointed it at her, (2) the bullet was fired into the ground, (3) the gun was unloaded when police found it, (4) appellant never used the gun to hit Smith, (5) Smith had no bruises or blood on her when she was interviewed by police, and (6) Deering testified that she believed appellant's actions were reckless. A. Standard of Review
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In a factual sufficiency review, we are permitted to substitute our judgment for the jury's when considering credibility and weight determinations, but only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (factual sufficiency jurisprudence requires appellate court to afford due deference to jury's determinations), pet. for cert. filed, — U.S.L.W. — (U.S. Mar. 13, 2007) (No. 06-11318). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). B. Applicable Law
A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon Supp. 2006). A person commits the offense of aggravated assault if the person uses or exhibits a deadly weapon while committing the offense of assault. Id. § 22.02(a)(2). The definition of "deadly weapon" includes "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Id. § 1.07(a)(17)(A). C. Analysis
Viewing the evidence in a neutral light, there is ample evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that appellant committed aggravated assault. Multiple witnesses testified that appellant pointed a gun at Smith, and it is undisputed that appellant fired at least one shot that landed on the ground near Smith. Although Smith did not testify at trial, she was "hysterical" at the crime scene and told Deering and Holdridge that appellant tried to kill her. Under these facts, the evidence in this case was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. We conclude the evidence is factually sufficient to support appellant's conviction for aggravated assault. We affirm the trial court's judgment.