Opinion
14-20-00242-CR
05-17-2022
ROBERT JONES, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish - Tex.R.App.P. 47.2(b).
On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 1617764
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J. concurs without opinion).
Justice Spain concurs without opinion.
Randy Wilson, Justice
In two issues, appellant Robert Jones appeals his conviction for aggravated assault with a deadly weapon. He complains first that the evidence adduced at trial was legally insufficient to support elements of the offense, and second, that the trial court reversibly erred by admitting evidence about an extraneous incident that occurred at the same place involving appellant and the complainant the night after the alleged offense. We affirm.
I. Factual and Procedural Background
In the after-work evening hours of January 7, 2019, appellant, complainant (Louis Shoulder), and other mutual friends met at a gas station near a North Houston metal plant for beer and banter. Appellant and Shoulder had first met while working at the metal plant seventeen years earlier, and these gatherings at the gas station were common-even after appellant ceased working at the plant. At some point late in the four-hour get-together, appellant pointed an alleged gun at Shoulder, prompting Shoulder to leave the conversation.
Shoulder was picked up by his fiancée. When Shoulder made it home he called the Houston Police Department to report that appellant drew a .40 caliber pistol on him. Based on the investigation that followed, appellant was indicted for aggravated assault with a deadly weapon. The indictment contained two prior felony convictions, with one being for an offense committed after the other became final. Appellant pleaded "not guilty" to the aggravated assault offense. At the start of trial appellant pleaded "not true" to the two enhancement paragraphs contained in the indictment, but later pleaded true to the two prior convictions before the jury assessed punishment.
The Trial
At trial, before the State presented evidence, appellant's trial counsel gave his opening statement wherein he challenged the existence of "a gun" and described appellant's conduct as a "bad joke."
The evidence offered during the guilt-innocence phase of appellant's trial comprised of appellant's and Shoulder's testimony about their relationship, the alleged gun (including whether it was a real gun or toy gun), the discussion that preceded appellant pointing an alleged gun at Shoulder, appellant's reasons for pointing an alleged gun at Shoulder, and the effect appellant's pointing of the alleged gun had on Shoulder. The evidence also included Officer Ryan Thompson's testimony about his investigation and the State's exhibits, which included a surveillance video of the gas station which captured the January 7 occurrence.
According to Shoulder, appellant and Shoulder engaged in a discussion about the connection, relationship, or distinction between Studewood and Acres Homes. And at some point in this discussion on local geography or demography, appellant broached the topic as to whether Shoulder was "about the life" of one or both of these neighborhoods, a topic Shoulder admitted he did not really understand. As Shoulder explained appellant's comments, though he was uncertain what appellant was talking about, appellant reiterated his view that Shoulder was not "about the life". Appellant then drew the alleged gun and pointed it at Shoulder. Shoulder testified that he believed the gun was real, which he described as a black and chrome ".40 caliber", and that he was scared that appellant would shoot him.
Over appellant's counsel's objection, the court permitted Shoulder to testify about his encounter with appellant the following night. According to Shoulder, on January 8 he was dropped off after work at the gas station he had been the night before. After he had been sitting talking with friend, appellant pulled up in his truck, exited the vehicle, and lifted his shirt to reveal his gun to Shoulder, which Shoulder identified to be the same gun. Shoulder testified that he promptly asked his friend to take him home.
Officer Thompson testified about his involvement responding to Shoulder's 9-1-1 call. He testified that he took a statement from Shoulder, that he perceived that Shoulder was "in fear of his safety", and that he followed-up by going to the gas station but did not find appellant or the others. He stated:
Q. And what was that 9-1-1 call for?
A. A call for service in which I responded to a residence where I spoke with the complainant about him being threatened with a firearm.
Q. When you arrived on scene, did you speak with that complainant?
A. Yes, I did.
Q. What was his emotional demeanor when you talked to him?
A. He was concerned for the incident that he was reporting. He was in fear for his safety.
Q. So you could tell he was scared?
A. Yes. Appellant took the stand and gave his account. Appellant consistently denied the alleged gun was real. When first asked about what happened, appellant like Shoulder, first described the precipitating events as if it were a disagreement between Shoulder and him, but then characterized his intentions as jocular:
Q. Can you tell us what happened that night in the parking lot of the Shell station?
A. Well, I can say, like, it was a misunderstanding. You know, I got out of my character. He got out of his character. There was some words. And it was supposed to been a joke. Like I was saying, the gun wasn't real. It was supposed to been a scare tactic. But I was wrong, and it was just something that got out of hand. That's all.
Several times in his testimony appellant described his actions both as carrying out a joke and as a "scare tactic". Appellant also testified that "[Shoulder] got scared." When asked about why he had been unable to produce the toy gun, he testified that it had been lost or stolen from his truck when it had been towed.
The jury found appellant guilty of the charged offense and the prior enhancing offenses, providing for a punishment range between 25 and 99 years. The jury assessed a punishment of imprisonment for thirty (30) years. The court entered judgment in accordance with the verdict and punishment assessment. This appeal followed.
II. Sufficiency of the Evidence
Appellant's first complaint is that the evidence at trial was legally insufficient to support the elements of his aggravated assault conviction.
A. Standard of Review
In evaluating this complaint, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
B. Legal Standards Applicable to Aggravated Assault Offense
A person commits the offense of aggravated assault "if the person commits assault as defined in § 22.01 and the person ... uses or exhibits a deadly weapon during the commission of the assault." Tex. Penal Code § 22.02(a)(2). A person commits assault as defined in section 22.01 "if the person ... intentionally or knowingly threatens another with imminent bodily injury." Tex. Penal Code § 22.01(a)(2). Appellant's indictment alleged that on or about January 7, 2019, he intentionally or knowingly threatened Shoulder with imminent bodily injury and used or exhibited a deadly weapon, specifically, a firearm. The jury charge tracked the language of these assault statutes and other relevant statutory definitions:
"Deadly weapon" means ... a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. [Tex. Penal Code § 1.07(17)]
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. [Tex. Penal Code § 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. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. [Tex. Penal Code § 6.03(b)]
B. Was there legally sufficient evidence of the charged offense to support the jury's guilty verdict?
Considering the evidence in the light most favorable to the verdict, and the reasonable inferences that can be drawn from that evidence, we conclude the evidence supporting the State's case is legally sufficient for a rational jury to have found beyond a reasonable doubt that appellant committed aggravated assault. See Tex. Penal Code §§ 22.01(a)(2), 22.02(a)(2); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Shoulder's testimony established that after he and appellant were conversing, appellant took exception to something Shoulder said, that appellant pulled out a .40 caliber handgun, cocked it and pointed it at Shoulder. The portion of the gas station's surveillance video shown to the jury generally supports Shoulder's account. The testimony at trial made clear to the jury that appellant was the man in the video who raised what appeared to be a pistol at Shoulder, the man seen holding the beer.
Appellant argues that the video surveillance evidence is limited and does not reveal appellant's intent, and contends that it does not support Shoulder's story that the gun was real (any more than it does appellant's story that the gun was a toy). Appellant also contends that Shoulder's perception of the event and opinion that the gun was real is unreliable because Shoulder was impaired by alcohol. Appellant also seems to suggest the evidence could not be sufficient without the gun in evidence. These arguments do not disturb our conclusion that his conviction is supported by legally sufficient evidence.
Appellant is correct that the jury heard evidence that would weigh against finding that appellant threatened Shoulder, e.g., evidence of video where Shoulder does not exhibit dramatic signs of fear, and evidence that Shoulder returned to the same spot the next night. But what matters in our analysis is not whether there was evidence against the jury's finding, but rather whether there was legally sufficient evidence to support the conviction. The jury heard Shoulder's testimony that he was scared that appellant would shoot and kill him, that it heard appellant describe what he had done as a "scare tactic" and concede that Shoulder was scared, and heard Officer Thompson testify that Shoulder sounded scared when he took his statement that night.
No firearm was recovered from appellant for the State to offer in evidence, but neither was the toy gun that appellant alleged he was actually holding. The jury was free, in making credibility determinations and in weighing evidence, to discredit appellant's story about how the toy gun was lost and to accept Shoulder's description of the weapon as real.
To the extent the surveillance video is limiting any respect, it is not so limiting to prevent a rational jury from concluding that appellant pointed an alleged gun at Shoulder. It does not matter that one might not be able to discern whether the gun on the video is a real gun or replica; we cannot conclude the image reveals conclusively that appellant was holding a replica or toy. The State was not required to produce the gun in evidence to support its case. Magana v. State, 230 S.W.3d 411, 414 (Tex. App.-San Antonio 2007, pet. ref'd) ("The State does not have to introduce the knife into evidence to prove the knife was a deadly weapon."); See also Charley v. State, No. 14-17-00852-CR, 2018 WL 5289930, at *3 (Tex. App.-Houston [14th Dist.] Oct. 25, 2018, no pet.). Lay testimony may suffice to support a deadly weapon finding. Id. citing Banargent v. State, 228 S.W.3d 393, 399 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). The jury was free to consider Shoulder's lay testimony that the gun was real. Id.; Pintor v. State, No. 14-05-01252-CR, 2006 WL 3193712, at *3 (Tex. App.-Houston [14th Dist.] Nov. 7, 2006, pet. ref'd)("This appears to be exactly what Jim was doing when he testified that based on his experience with guns, appellant's pistol was a real gun."). The jury could also consider appellant's movement toward and proximity to Shoulder when he raised the alleged gun. Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017)(The fact finder may "consider words and other threatening actions by the defendant, including the defendant's proximity to the victim".); Romero v. State, 331 S.W.3d 82, 83-84 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) ("Intent to inflict serious bodily injury or death may be shown by evidence of assertive conduct by an attacker.").
Appellant's argument attacking the reliability of Shoulder's recollection of events based on alcohol impairment that evening is unavailing. Shoulder admitted to drinking roughly three beers in four hours. He also testified that had eaten during that time and denied that he was intoxicated. In short, the fact that Shoulder had been drinking is a fact that goes to his credibility as a witness. Jasso v. State, 112 S.W.3d 805, 809 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). This credibility determination is a consideration reserved for the jury. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). We presume the jury took these facts into account when it weighed the evidence.
Similarly, the jury, not a reviewing court, resolves conflicts in testimony and weighs the evidence. See Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015). We presume that that the jury resolved any inconsistencies in the evidence in favor of the verdict. See id. The jury was free to find Shoulder was the more credible witness and to believe his testimony.
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found beyond a reasonable doubt each element necessary to support the finding that appellant committed the offense of aggravated assault as charged in the indictment. See Jackson, 443 U.S. at 318- 19; Ward v. State, 113 S.W.3d 518, 521 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) ("Aiming a deadly weapon at a supposed victim is sufficient evidence of a threat to sustain an aggravated assault conviction."); Dickerson v. State, 745 S.W.2d 401, 402-03 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd). Accordingly, we hold that the evidence was sufficient to support the judgment of conviction.
III. Admission of Extraneous Offense
In his second issue, appellant complains the trial court abused its discretion by admitting evidence of Shoulder's encounter with appellant at the same place the following night. Appellant argues he was not provided proper notice of the State's intent to introduce evidence of the encounter, that the evidence was not relevant beyond proving character conformity, and that under Rule 403 its probative value is less than its prejudicial impact. The State contends that the evidence was offered to rebut the defensive theory outlined in the appellant's opening statements that he intended to carry out a joke.
A. Standard of Review and Applicable Law
We review the trial court's decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Seidule v. State, 622 S.W.3d 480, 489 (Tex. App.- Houston [14th Dist.] 2021, no pet.).
Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he acted in conformity therewith. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). This evidence may, however, be admissible when it is relevant to a noncharacter conformity fact of consequence in the case, such as rebutting a defensive theory. Id. Once the defendant claims accident, mistake, lack of intent, etc., the State is allowed to prove intent through evidence of other crimes, wrongs, or acts. Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.-Austin 1996, pet. ref'd). An extraneous offense is relevant outside of supporting an inference of character conformity if it serves to make more or less probable an elemental fact. Montgomery, 810 S.W.2d at 387. When extraneous offense evidence is offered on the issue of intent, Texas courts have held that there is less need to show significant identity between the facts of the other transactions and those of the case being tried. Morrow v. State, 735 S.W.2d 907, 909-10 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd).
Rule of Evidence 404(b) allows the State to admit evidence of the defendant's extraneous acts for any relevant purpose other than proving the defendant's character to show he acted in conformity with that character. Tex. R. Evid. 404(b). Upon request from the defendant, the State must provide "reasonable notice" of its intent to introduce extraneous-act evidence. Tex. R. Evid. 404(b)(2). Rebuttal evidence that was raised by the State only after the defense opened the door to such evidence in opening statements is not subject to the Rule 404(b) notice requirement. Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016).
B. Did the trial court err in admitting Shoulder's testimony about his encounter with appellant the following night?
In this case, appellant's defense was that he was joking when he pointed the gun at Shoulder. Though he admits that it was a "bad joke", in essence, he contends he lacked the intent to threaten Shoulder and contends the gun was a toy. When appellant objected to admission of the January 8 encounter and the parties' counsel approached the bench, the State's explained it was offering evidence of appellant's brandishing of his weapon on January 8 to rebut the defensive theory presented by counsel's opening statement that on January 7 appellant was joking and that the gun was fake. Shoulder then testified that the appellant brandished the same gun at him the next day. The occurrences happened close to the same time, at the same place, both involved appellant and Shoulder, and the same weapon. Though appellant did not point the weapon at Shoulder on January 8, Shoulder's testimony indicates at least that appellant intended for Shoulder to know that he was carrying the weapon, a fact, which if taken in conjunction with the previous evening, could be construed as an intentional threat aimed at Shoulder. While the occurrences were not the same, they were substantially similar. Morrow v. State, 735 S.W.2d 907, 912 (Tex. App.-Houston [14th Dist] 1987, pet. ref d)(finding trial court did not abuse its discretion in murder trial when allowing the State offer rebuttal evidence to assertion of self-defense that "one week later appellant shot another man also without provocation").
We conclude the trial court's implicit ruling that such extraneous evidence could assist the jury in its assessment of appellant's defensive theory offered in opening statement (that his actions were meant has a joke) is reasonably supported by the record and lies within the zone of reasonable disagreement. Seidule v. State, 622 S.W.3d 480, 489 (Tex. App.-Houston [14th Dist.] 2021, no pet.); Powell v. State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001). Because the defensive theory was raised in opening statement, the State was not required to give notice. Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) ("Rebuttal evidence that was raised by the State only after the defense opened the door to such evidence in opening statements is not subject to the Rule 404(b) notice requirement, and the court of appeals erred in holding otherwise.").
Appellant's Rule 403 complaint was not raised in the trial court. The State made this point in its responsive brief, and appellant has not disputed this contention. Upon our review of the record, we agree that no such argument was raised and therefore not preserved for our review. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g); Baker v. State, No. 14-04-00373-CR, 2005 WL 1772192, at *4 (Tex. App.-Houston [14th Dist.] July 26, 2005, no pet.).
III. Conclusion
Having overruled appellant's two issues, we conclude that the trial court did not err and affirm the trial court's judgment.