Nos. 05-04-01105-CR, 05-04-01106-CR, 05-04-01107-CR
Opinion filed October 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-27366-RS, F03-27367-RS, F03-27368-RS. Affirmed.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice MOSELEY.
On a plea of not guilty, Jeff Cory Smith was convicted of the aggravated assault with a deadly weapon of John Hall and Jessie Mascarenas (cause numbers 05-04-01105-CR and 05-04-01106-CR) and attempted tampering with evidence (cause number 05-04-01107-CR). Appellant was sentenced to fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice in the aggravated assault cases, and two years' confinement in the state jail facility in the attempted tampering with evidence case. In five issues, appellant challenges the legal and factual sufficiency of the evidence, certain evidentiary rulings, and the trial court's ruling on his motion for new trial. In a sixth issue, appellant contends he is entitled to a new trial because of inaccuracies in the reporter's record. We resolve appellant's issues against him and affirm the trial court's judgments. Because the issues are settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
I. FACTUAL BACKGROUND
The record contains evidence that, while appellant and his girlfriend, Jennifer Hewitt, were seated at a table in a bar, Hall and Mascarenas began staring at Hewitt and making gestures. The two parties had words, and appellant and Hewitt left the bar. Hall and Mascarenas followed them, approaching appellant and Hewitt and "mouthing off" at them. Appellant thought Hall had something in his hands; appellant could not see the object, but he assumed it was a weapon. Appellant testified he pulled a .38 revolver from his pocket and shot twice into the air. At the jail, when a law enforcement official attempted to administer a gunshot residue test, appellant spat on his hands and rubbed them together. II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support the guilty verdicts. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A.
Aggravated Assault A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-05). A firearm is a deadly weapon. Id. § 1.07(a)(17)(A) (Vernon Supp. 2004-05). Appellant argues the evidence is factually insufficient because the testimony of the witnesses "varied greatly." He argues that the States' witnesses' trial testimony was inconsistent with their reports to the police at the time of the incident. He also argues that the physical evidence at the scene supports his and Hewitt's version of the incident, specifically that only two shots were fired and that he fired in the air, negating the State's witnesses' versions that more shots were fired and that appellant fired "point blank" at Hall. This argument is unavailing because the jury reconciles conflicting testimony. See Goodman, 66 S.W.3d at 287; Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). ("Although faced with conflicting inferences, a reviewing court must presume that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution."). Appellant also argues that the evidence is legally insufficient to show that he threatened Hall or Mascarenas because he shot in the air. However, appellant admitted that he shot the gun in the air because "it was either stand there and allow them to come and jump on me or shoot the gun off and have them run away." Accordingly, appellant's admission that he shot his gun to get the men to "run away" amounts to a threat to inflict imminent bodily injury by using deadly force. See Miller v. State, 741 S.W.2d 501, 504 (Tex.App.-Corpus Christi 1987, pet. ref'd) ("The State was not required to show that appellant actually fired at the men, . . ., only that he threatened them with the shotgun."). Having reviewed the evidence in the record (including the above evidence) under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support guilty verdicts for aggravated assault. B.
Attempted Tampering with Evidence A person commits the offense of tampering with physical evidence if, knowing that an investigation or official proceeding is pending or in progress, he alters, destroys, or conceals any record, document, or thing with intent to impair its verity or availability as evidence in the investigation or official proceeding. Tex. Pen. Code Ann. § 37.09(a)(1) (Vernon 2003). A criminal attempt occurs if, with specific intent to commit an offense, a person does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a) (Vernon 2003). Appellant admits that he spat into his hands before a police investigator performed a gunshot residue collection on him. He contends the evidence is legally insufficient to show he attempted to alter, destroy, or conceal evidence because he testified he was just "clowning around." However, there was evidence that a police officer explained to appellant that a hand-washing test would detect any gunpowder if he fired a gun and he was not allowed to wash his hands. Accordingly, there is some evidence appellant attempted to alter, destroy, or conceal evidence with intent to impair its verity or availability as evidence in the investigation or official proceeding of the incident. Having reviewed the evidence in the record (including the above evidence) under the appropriate standard of review, we conclude the evidence is legally sufficient to support a guilty verdict for attempted tampering with evidence. C.
Conclusion as to Sufficiency Because we conclude the evidence is legally and factually sufficient to support the jury's verdicts on the charges, we resolve appellant's first and second issues against him. III. EVIDENTIARY RULINGS
In his third and fourth issues, appellant contends the trial court committed reversible error by: (1) allowing the alleged victim from a pending burglary case in which appellant was the defendant to testify during punishment (issue three); and (2) admitting erroneous information regarding appellant's criminal history and information containing an expunged offense during punishment (issue four). However, to preserve error for appellate review, a party must timely object and specifically state the grounds for the complaint, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a). The record shows that appellant failed to object to the witness's testimony complained of in issue three and stated "No objections" to the admission of the exhibits complained of in issue four. Because appellant raises these complaints for the first time on appeal, he has failed to preserve these complaints for review. Accordingly, we resolve appellant's third and fourth issues against him. IV. MOTION FOR NEW TRIAL
In his fifth issue, appellant complains that the trial court erred in ruling on a motion for new trial filed by appellant's trial counsel when trial counsel would not be representing appellant on appeal. The record shows that appellant's trial counsel timely filed motions for new trial, which the trial court overruled on the day they were filed. Subsequently, appellant's counsel on appeal filed motions for new trial. There is no written ruling in the record on the second motions. Appellant contends the trial court "should not have ruled" on the first motion for new trial without ascertaining whether trial counsel would be representing appellant on appeal. A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. Ford v. State, 129 S.W.3d 541, 547 (Tex.App.-Dallas 2003, pet. ref'd). A trial court's decision to rule on a motion for new trial properly filed by trial counsel for a represented party is not an abuse of discretion. Accordingly, we resolve appellant's fifth issue against him. V. THE RECORD
In his sixth issue, appellant argues he is entitled to a new trial because of disputes regarding the accuracy of the reporter's record. In this Court, appellant complained about the accuracy of the reporter's record and requested a transcription of the audiotapes by an independent court reporter, supporting his motion with his affidavit pointing out errors and omissions. This Court ordered the trial court to conduct a hearing to determine whether the reporter's record reflected the proceedings. Rule of appellate procedure 34.6(e)(2) deals with inaccuracies in the reporter's record; it provides, in part: "If the parties cannot agree on whether or how to correct the reporter's record so that the text accurately discloses what occurred in the trial court and the exhibits are accurate, the trial court must-after notice and hearing-settle the dispute." Tex.R.App.P. 34.6(e)(2). Under a bifurcated standard of review, we review the factual components of a trial court's decision under an abuse of discretion standard, that is, we afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We view the evidence in the light most favorable to the trial court's ruling. Guzman, 955 S.W.2d at 89. The trial court held a hearing and found that the reporter's record accurately reflected the proceedings in the cases and that testimony regarding "additions and omissions" was not credible. The court reporter testified he prepared the record from recordings on his steno machine, the back up audiotapes were used by a scopist to proofread the record "just to be sure everything is there," and there were no omissions. Then the audiotapes were destroyed. Because there is evidence supporting the trial court's fact findings that the reporter's record is accurate, thus settling the dispute, we conclude the record shows no abuse of discretion. We reject appellant's argument that he was denied due process because he was not physically present at the hearing. Nothing in rule 34.6(e)(2) provides for a hearing in a defendant's presence, and the record shows the trial court considered appellant's affidavit. We resolve appellant's sixth issue against him. VI. CONCLUSION
Having resolved all appellant's issues against him, we affirm the trial court's judgments.