No. 05-10-01227-CR
Opinion Filed October 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-14516-V.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice MORRIS.
At trial, a jury convicted Mark Andre Green of aggravated assault. He complains on appeal that the evidence against him is legally insufficient to support his conviction and his right of confrontation was violated after the complainant invoked her right not to testify. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
Appellant and his wife, the complainant, lived with his mother-in-law Peggy Wallace and her terminally ill husband. Wallace recalled that one night she heard her daughter yelling for her to call 911. The complainant told her mother that appellant was being mean to her and that he had a gun. Wallace passed the information along to the 911 operator. After the call, the 911 operator called back to the house a couple of times. One time the complainant spoke to the operator, and another time the complainant's young daughter spoke to the operator. Wallace testified that although she was not in the same room as appellant, she heard him threaten that he was going to kill the complainant and everyone else in the house, including himself. Wallace laid over her husband to protect him because she was scared that appellant would carry through on his threat. Wallace admitted that the written statement she gave police that night had not been written by her but rather transcribed for her by her friend, Linda Royal. Wallace stated that she was too upset to write after the police arrived. She claimed she did not read the statement before she signed it. She claimed that she had not seen most of the things she told the 911 operator because she was in another room while appellant and the complainant argued. Wallace had, however, heard appellant threaten to kill everyone in the house, including himself. In the written statement, she said that she had seen appellant put the gun to her daughter's head and pull the trigger. She confirmed at trial that she had seen appellant put the gun to her daughter's head. Linda Royal confirmed that she had written down Wallace's statement for her. Royal stated that she and Wallace had been friends for over twenty-five years. She stopped at Wallace's house on her way to the store when she saw the police congregated there. Royal stated that she wrote what Wallace told her to write but she had not seen any of the events described in the statement. The complainant's nine-year-old daughter, Dakota Franklin, also testified. She claimed she remembered only "a little" of what happened on the night of the offense. She stated that she called 911 and told the operator appellant had a gun because her mother asked her to do so. She stated that she "kind of" did not remember both telling a police officer she saw appellant hold a gun to her mother's head and the event itself. When called to testify by the State, the complainant testified that appellant had never assaulted her and that she had her mother call 911 because she suspected appellant was cheating on her and wanted him out of the house. She claimed that she had told her mother appellant had pulled a gun on her but it was not true. At that point, the trial court stopped the proceedings, retired the jury, and appointed an attorney to represent the complainant. When the jury returned to the courtroom, the prosecutor asked the complainant if appellant had put a gun to her head that night and the complainant exercised her right not to testify against herself. She did the same when the prosecutor asked her if she told her mother to lie to police in the 911 call. The complainant was then excused from the witness stand without objection. Police officers at the scene after the 911 call described how appellant fled from them and refused to submit to arrest even after he had been hit by two tasers. The officers said that the complainant seemed very scared and upset when they observed her at the scene. A .45 caliber gun was found in the living room of the house under the couch. There were three bullets in the gun's magazine and one in the chamber. Cedar Hill police officer Aaron McCalister testified that Wallace described for him something she had heard during the offense. After confirming he had removed the ammunition from his gun, he "dry fired" it for Wallace. She stated that the sound was the one she had heard when appellant was holding his gun to the complainant's head. The round taken from the inside chamber of the .45 caliber gun found at the scene had a small indentation on the back side of its primer. McCalister testified that this fact indicated that the gun's trigger had been pulled but the gun had malfunctioned in such a way that the bullet did not fire. Discussion
In his first issue, appellant challenges the legal sufficiency of the evidence supporting his conviction. He contends the evidence is insufficient because Wallace and Franklin were contradictory about what they recalled from the night and could not be considered credible and the complainant herself had denied any assault occurred. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence in this case shows appellant threatened to kill the complainant and everyone inside his mother-in-law's house. He put a gun to the complainant's head, going so far as to pull the trigger, and frightened her so terribly that she asked her family members to speak to a 911 operator for her. Any conflicts in the witnesses' testimony or credibility issues were for the jury to decide. We resolve appellant's first issue against him. In his second issue, appellant complains the trial court violated his right to confront the witnesses against him when the trial court sua sponte appointed counsel for the complainant and she invoked her right not to testify against herself. Appellant did not make this objection at trial. He has therefore failed to preserve his right to raise the complaint on appeal. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). We resolve appellant's second issue against him. We affirm the trial court's judgment.