Opinion
No. 07-17-00111-CR
06-11-2018
ADAREIUS JOHNS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2016-409 ,989; Honorable John J. McClendon III, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Adareius Johns, was charged by indictment with the offense of aggravated assault, alleged to have been committed on June 20, 2016. Following a jury trial, he was found guilty and the jury assessed his sentence at imprisonment for a period of twenty years. By two issues, Appellant contends (1) the evidence presented at trial was legally insufficient to establish that he had the requisite intent to threaten the victim, Alexander Johns, and (2) the imposition of the maximum sentence of twenty years amounts to cruel and unusual punishment. We affirm.
As applicable to the indictment in this case, a person commits an aggravated assault if he commits an assault as defined in section 22.01(a)(2) of the Texas Penal Code and he uses or exhibits a deadly weapon during the commission of that offense. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As indicted, the offense was a second degree felony punishable by confinement of not more than twenty years or less than two years and by a fine not to exceed $10,000. Id. at § 12.33(a), (b).
BACKGROUND
In the early morning hours of June 20, 2016, Alexander Johns, Appellant's brother, was awoken by someone knocking on the front door of his house. When he answered the door, he discovered that Appellant was there seeking his help because he believed someone had planted marihuana in his vehicle. After Alexander disposed of the marihuana, Appellant became upset because he wanted the police to assist him in determining who planted the marihuana in his vehicle.
The police were called, and a report was made. After the police left, Appellant became angry, so Alexander called 9-1-1 to request that the police return to keep the situation from escalating. In that call, Alexander stated that Appellant had "totally lost it" and would not leave even after being asked to do so. After making the 9-1-1 call, Alexander began recording Appellant's behavior on his cell phone. Before the police arrived, Appellant had driven his vehicle into Alexander's yard, causing damage to the residence and forcing Alexander to move out of the path of the vehicle. During the incident, Alexander was not physically injured.
A police officer responding to the 9-1-1 call spoke to Alexander about what had happened, reviewed the cell phone video, and observed tire marks in the yard. Although Alexander told the officer that he did not feel threatened by Appellant's conduct and that he did not want to press any charges against his brother, the officer determined that Appellant had used his vehicle as a deadly weapon while assaulting Alexander. As a part of its investigation, the police obtained the cell phone video of the incident which was later introduced into evidence. The video depicted Appellant getting into his vehicle and driving it towards Alexander on two occasions while the vehicle was in his yard. On one occasion, Alexander ran away from the vehicle, and on the other occasion, he had to jump out of the way.
At trial, Alexander testified that he did not believe Appellant had tried to run him over with the vehicle and he indicated that he had consistently informed the police that he did not want to see Appellant prosecuted. He further testified that on the day of the incident, he was not afraid of being struck by Appellant's vehicle because he had been given sufficient time to get out of the way.
STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE
By his first issue, Appellant contends the evidence is legally insufficient to establish that he committed the underlying offense of assault by intentionally or knowingly threatening Alexander with imminent bodily injury. The standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to support a conviction, a reviewing court considers all the evidence in the light most favorable to the verdict and determines whether, based on the evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). In conducting our review, we must remain mindful that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimonies, and we must defer to those determinations and not usurp its role by substituting our judgment for that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). The duty of a reviewing court is simply to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case of the offense charged. Id. When a reviewing court is faced with a record supporting contradicting conclusions, the court must presume the jury resolved any such conflicts in favor of the verdict, even when not explicitly stated in the record. Id. "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)).
A legally sufficient showing of aggravated assault, under the indictment in this cause, requires the State to prove beyond a reasonable doubt that (1) Appellant intentionally or knowingly (2) threatened Alexander, (3) with imminent bodily injury, and he (4) used or exhibited a deadly weapon during the commission of the offense. See TEX. PENAL CODE ANN. §§ 22.01(a)(2) and 22.02(a)(2) (West 2011). "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." See id. at § 6.03(a). "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist." See id. at § 6.03(b).
ANALYSIS
In addressing his contention that the State failed to prove Appellant acted intentionally or knowingly, he emphasizes the fact that Alexander testified that he was not threatened and did not believe Appellant tried to run him over with his vehicle. Alexander further testified that even though it was necessary for him to move out of the way of Appellant's moving vehicle, he was not scared because Appellant gave him time to get out of the way. These arguments are simply favorable inferences that Appellant draws from the testimony of his brother. Equally logical inferences are that he knew what he was doing when he got behind the wheel of his vehicle and accelerated it in the direction of his brother and that he did so with the logical conclusion that such conduct would either threaten or injure his brother. Under those circumstances, being faced with a record that supports contradicting conclusions, we must presume the jury resolved this conflict in favor of the verdict.
To the extent that Appellant's argument might be construed as contending that the State failed to establish the element requiring that his conduct "threaten[ed] another with imminent bodily injury," we note that it is not the state of mind of the victim that is at issue. The question is whether the accused intentionally or knowing engaged in conduct designed to threaten another. Because the answer to that question lies solely within the confines of Appellant's mind, we must review the decision of the jury to determine if the evidence, when combined with reasonable inferences from that evidence, supports its conclusion that he did intentionally or knowingly threaten Alexander. Because the evidence presented to the jury amounts to more than a mere modicum of evidence that Appellant intentionally or knowingly threatened his brother and because the contradictory evidence does not conclusively establish a reasonable doubt, we find the evidence was legally sufficient to support the jury's verdict. Issue one is overruled.
CRUEL AND UNUSUAL PUNISHMENT
Appellant next contends that, should this court find that the evidence is sufficient to support his conviction, we should then proceed to examine whether his twenty-year sentence, the maximum period of incarceration for this offense, is so grossly disproportionate as to amount to cruel and unusual punishment in violation of Article VIII of the United States Constitution, or article I, section 13 of the Texas Constitution. The State contends the question has not been properly preserved for our review.
Preservation of error is a systemic requirement that appellate courts should always consider. Ukwuachu v. State, No. PD-0366-17, 2018 Tex. Crim. App. Unpub. LEXIS 442, at *2 (Tex. Crim. App. June 6, 2018) (citing Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016)). If an issue has not been properly preserved for appeal, this court should not address the merits of that issue. Id. (citing Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009)). Indeed, it is the duty of an appellate court to ensure that a claim is preserved in the trial court before addressing its merits. Id. (citing Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010)). Issue two is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice Do not publish.