Opinion
No. 05-02-01230-CR
Opinion issued June 19, 2003 Do Not Publish
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74767-IS AFFIRMED
MEMORANDUM OPINION
Roderick Dale Johnson appeals his conviction for aggravated assault. After finding appellant guilty and that he used or exhibited a deadly weapon during the commission of the offense, the jury assessed punishment, enhanced by a prior felony conviction, at thirty years confinement and a $10,000 fine. In three points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial judge erred in allowing improper jury argument. We affirm the trial court's judgment. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). A person commits aggravated assault if he intentionally, knowingly, or recklessly causes (i) bodily injury to another by shooting the person with a firearm, a deadly weapon, or (ii) serious bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) 22.02(a)(1), (2) (Vernon 2003). Although appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove that appellant committed the offense, we disagree. The evidence showed April Saddler lived with appellant and his girlfriend, Yasmie Lewis. On April 11, 2001, Yasmie and appellant began fighting and ordered April to leave. April got her purse and went to stay with her cousin, Shakeva. Yasmie later called and told April she needed to get her clothes. The following day, April, Shakeva, and a friend, Dionne Deadmon, went to the apartment to get April's clothes, but most of her clothes were missing. When they returned to Shakeva's house, appellant, Yasmie, and several friends were waiting for them. Appellant was wearing a hooded sweater and gloves and was carrying a gun. He then pulled a black bandana up over his face. When he demanded his "shit" back, April recognized his voice. Shakeva pushed April to the porch and told her to get in the house. Appellant began shooting and hit Dionne in the ankle. April, Shakeva, and Dionne testified appellant had a gun and fired the shots, one of which injured Dionne. Police discovered .9mm shell casings in the street. Shakeva had a .12 gauge shotgun on her porch, and police also discovered a .25 caliber handgun under the couch in her house. Detective Richards testified that neither weapon found at Shakeva's could "handle" a .9 mm projectile. In contrast, Yasmie testified appellant was not at Shakeva's on April 12, 2001. Rather, she and several friends drove to Shakeva's house to give April her clothes. Suddenly, April and her friends surrounded Yasmie and demanded she open the trunk. Shakeva pulled out a big gun (later identified as a shotgun) and fired at her. Yasmie could not explain why April's clothes were not in the car nor could she explain the presence of .9 mm shell casings in the street. After reviewing the evidence in the light most favorable to the judgment, we conclude the evidence is legally sufficient to support appellant's conviction. We have also examined all the evidence without the prism of "the light most favorable to the prosecution," and, after doing so, we conclude the evidence is factually sufficient to support appellant's conviction. Accordingly, we overrule appellant's first and second points of error. In his third point, appellant contends the trial judge erred in allowing improper jury argument. The law is well-settled that "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument . . . he will have to show he objected and pursued his objection to an adverse ruling." Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); see Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002) (declining defendant's invitation to overrule Cockrell). Because appellant failed to object to the prosecutor's statements, we conclude he has forfeited his right to complain about the argument on appeal. See Ladd v. State, 3 S.W.3d 547, 569 (Tex.Crim.App. 1999); Cockrell, 933 S.W.2d at 89. We overrule appellant's third point of error. We affirm the trial court's judgment.
Apparently, April had a key to the apartment and a key to appellant's car.