Opinion
No. 05-04-00094-CR
Opinion Filed April 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-72465-TW.
Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
Charles Rae Harris waived a jury trial and pleaded not guilty to aggravated assault. The trial court found appellant guilty, sentenced him to eight years' confinement and assessed an $800 fine. The judge also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On the evening of May 19, 2003, Lanetta Collins and Tanisha Turner went to appellant's house to purchase marijuana. Collins testified Reginald Harvey was at appellant's house when she arrived. Collins paid Harvey for the marijuana, then drove back to her house to get cigarettes for Harvey. While she was driving back to appellant's house, Collins saw Harvey walking down the street. She stopped and gave Harvey the cigarettes. Harvey asked Collins if she had taken some cough syrup from appellant's house. Collins told Harvey she knew nothing about cough syrup. After talking briefly with Harvey about the missing cough syrup, Collins drove home. Ten minutes later, Collins saw appellant and Harvey drive up in front of her house. Collins was standing on the front porch because Harvey had already told her that appellant would be angry about the cough syrup. Collins testified she knew the cough syrup was used as a drug because it contained codeine. Collins testified appellant barged his way inside her house, cursed her, and demanded that she return the cough syrup. Appellant shoved Collins's three-year-old daughter, then pulled a gun from his back pocket and waved it in Collins's face. Appellant threatened to shoot Collins if he did not get the cough syrup. Turner, who was in the house when appellant arrived, told appellant the police were on the way. Collins testified she heard appellant threaten to "get" Turner because Turner had called the police. Appellant and Harvey then left. Collins testified she gave the police appellant's name and a description of appellant's vehicle. Dallas police officer Carlos Cruz testified that at 9:30 p.m. on May 19, 2003, he answered a disturbance-involving-a-handgun call. Collins told Cruz that she feared for her life when appellant pulled out a gun, put it in her face, and threatened to kill her. Turner told Cruz she heard appellant threaten Collins with a gun, and Turner identified herself as the person who called the police. Reginald Harvey testified that appellant was his cousin and they both owned a house they used for selling marijuana. Harvey further testified the cough syrup was a drink that gets you high, was worth about $250, and was for appellant's personal use. Harvey admitted he sold Collins a bag of marijuana and that Collins left his house to get cigarettes for him. When Collins left, Harvey discovered the cough syrup was missing from the kitchen table. Harvey called appellant and asked if appellant had the cough syrup with him. When appellant said no, Harvey told appellant he believed Collins had taken the cough syrup. Harvey began walking down the street, intending to find Collins and tell her to return it. Collins stopped her car and talked with Harvey. Collins denied that she took the cough syrup, then she went home. By the time Harvey walked back to the drug house, appellant was there. Harvey got into appellant's car and they drove to Collins's house. Harvey testified that when they knocked on Collins's door, Turner let them inside the house. According to Harvey, appellant only asked Collins to return the cough syrup; Harvey was the person who argued with Collins. Harvey testified he never saw appellant shove a child and no one had a gun. Harvey testified he did have a .38-caliber firearm at the drug house, but neither he nor appellant took the gun to Collins's house. Harvey also testified he had a prior conviction for delivery of a controlled substance. Appellant testified the cough syrup was promethazine with codeine. He bought the cough syrup to give to Harvey to sell so they could make a profit; the cough syrup was not for appellant's personal use. Appellant testified he and Harvey owned the house they both used for selling marijuana, and that he knew it was illegal to sell marijuana and the cough syrup. Appellant admitted he was very angry when Harvey called him and said Collins had taken the cough syrup. When he drove to Collins's house and knocked, Turner opened the door and let them in. Appellant testified Harvey argued with Collins, but appellant only asked Collins to give him back the cough syrup. Appellant denied he touched anyone in the house or that he ever had a gun. Appellant testified that after Collins did not return the cough syrup, he returned to the drug house. Appellant did not know there was a warrant for his arrest until he was stopped on a traffic violation three months later. Appellant also testified he had a prior conviction for unauthorized use of a motor vehicle.Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). 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. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson, 23 S.W.3d at 11. The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Lanetta Collins with imminent bodily injury and used or exhibited a deadly weapon, a firearm, during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004-05). A firearm is a "deadly weapon." See id. § 1.07(a)(17). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000).Discussion
Appellant argues the evidence is legally and factually insufficient because an eyewitness testified appellant never threatened the complainant with a weapon, and the complainant, who was a drug user, was not credible. Appellant contends the evidence showed the police did not believe the complainant because appellant was not arrested until three months after the complainant reported the incident. The State responds the evidence is legally and factually sufficient to support appellant's conviction because the trial court is entitled to believe the complainant's testimony over appellant's testimony. We agree with the State. There was conflicting evidence before the fact finder. Collins testified appellant threatened her with a gun. Cruz testified both Collins and Turner told him appellant had threatened Collins with a gun. Collins admitted she went to appellant's house to purchase drugs. Appellant and Harvey admitted they used the house to sell drugs, but denied threatening Collins with a firearm. Appellant asks us to find that the evidence is legally and factually insufficient because the testimony given by him and by Harvey is more credible than Collins's testimony. However, it was the fact finder's role to weigh the credibility of the witnesses, to believe or disbelieve the witnesses' testimony, and to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error.We affirm the trial court's judgment.