Opinion
No. 05-08-00331-CR
Opinion Filed February 18, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F07-72234-TH.
OPINION
Appellant was indicted for aggravated assault on a public servant using or exhibiting a deadly weapon, to-wit, a firearm, during the commission of the assault. Tex. Penal Code Ann. § 22.02(b)(2)(B) (Vernon Supp. 2008). Appellant waived a jury and pleaded not guilty before the trial court. After hearing evidence, the trial court found appellant guilty and found that he used a deadly weapon during the commission of the offense. The trial court assessed appellant's punishment at eight years' imprisonment in the state penitentiary. Appellant now appeals contending the evidence is both legally and factually insufficient to support the judgment against him. Concluding the evidence is both legally and factually sufficient to support the verdict, we affirm. In relevant part, appellant was charged by indictment alleging that he:
[o]n or about the 20th day of March A.D., 2007 in the County of Dallas and said State, did unlawfully then and there intentionally and knowingly threaten JUAN MENDOZA, hereinafter called complainant, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: A FIREARM AND A PIT BULL DOG, during the commission of the assault, and said complainant was at the time of the offense a public servant, namely, a City of DALLAS WATER DEPARTMENT EMPLOYEE engaged in the lawful discharge of an official duty, and said defendant knew that complainant was a public servant . . .As charged, the State was required to prove that appellant intentionally or knowingly threatened Juan Mendoza with imminent bodily injury while Mendoza was lawfully discharging an official duty; appellant knew Mendoza was a public servant lawfully discharging an official duty; and appellant used or exhibited a deadly weapon during the assault. Id. at §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B). Under section 22.02(c), a defendant "is presumed to have known the person assaulted was a public servant . . . if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant." Id. at § 22.02(c).
Standards of Review Legal Sufficiency
The standard of review for legal sufficiency is well known to the parties. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The Jackson standard requires this court to view all of the evidence in the light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime" beyond a reasonable doubt. Jackson, 443 U.S. at 318-19.Factual Sufficiency
As recently stated by the court of criminal appeals:[t]here are three basic ground rules that guide a court of appeals in conducting a factual-sufficiency analysis. First, the court of appeals must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury. While the court of appeals may disagree with the factfinder, it should afford the appropriate deference in order to avoid substituting its judgment for that of the jury. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Second, the court of appeals' opinion should clearly lay out and explain how the evidence supporting the verdict is too weak on its own, or state how the contradicting evidence greatly outweighs evidence in support of the verdict. This is particularly important because it assists this Court in determining whether the court of appeals applied the standard of review properly. Third, the appellate court should review all of the evidence in a neutral light, as opposed to a legal-sufficiency review in which the evidence is viewed in the light most favorable to the verdict. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust. Cain, 958 S.W.2d at 406.Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008).
Procedural Facts
In January 2007, appellant pleaded guilty to the state jail offense of criminal mischief (cause number F06-86819-H) committed in 2006. The trial court assessed appellant's punishment at two years' confinement in the state jail but suspended imposition of sentence and placed appellant on deferred community supervision for four years. During that probationary period, appellant was indicted for first-degree felony assault on a public servant (cause number F07-72234). Appellant waived a jury in the aggravated assault case but pleaded not guilty before the trial court. Inasmuch as a motion to revoke had been filed in the criminal mischief case, the aggravated assault case and the revocation in the criminal mischief case were heard by the trial court simultaneously. Appellant pleaded true to all allegations in the motion to revoke except to allegation number one alleging he committed the new offense of aggravated assault on a public servant in cause number F07-72234, to which he pleaded not true. This appeal is from appellant's conviction in cause number F07-72234, the aggravated assault case. Evidentiary Facts The State's first witness was the complainant in the aggravated assault case, Juan Mendoza, who testified to the following facts. On March 20, 2007, at about 11:00 a.m., he went to 2424 Seevers Avenue on a tampering ticket, or otherwise identified as a M-04 illegal connection. As a City of Dallas water department employee, he was going there to disconnect the water. Mendoza went to the back of the residence just off the alley where the water meter was located. The yard was surrounded by a five-to-six-foot chain-link fence. A photograph of the yard was admitted without objection during trial. The meter was about a foot from the fence on the alley side. Mendoza was dressed in a shirt with a City of Dallas logo from the water department and was driving a City vehicle marked with beacon lights and a City of Dallas logo on its doors. Mendoza parked beside the meter and got out. Mendoza described what then happened:[Witness]:
Okay. Once I detected the meter, I got out of my truck and went to the meter. And there was a dog like some kind of pitbull by the yard, and there was a big hole in the fence. So the dog tried to charge at me, so I had my dog spray so I sprayed the dog. That's when Mr. Robert came out — I think he was looking through the window or something when I sprayed the dog. So he came out the side door, and he was yelling why I sprayed his dog.
[Prosecutor]:
Now, you said there was a hole in the fence. Was the dog able to get through the hole?
[Witness]:
Yes.
[Prosecutor]:
Was it trying to get through the hole?
[Witness]:
Yes.
[Prosecutor]:
You said it's a pitbull. Was it a mean pitbull?
[Witness]:
Yes, it was barking and charging.
[Prosecutor]:
Okay. Why did you spray it with the mace? [Witness]:
Because I felt threatened by the dog.
After Mendoza identified appellant as the man who came out of the house after he sprayed the dog, the following occurred:
[Prosecutor]:
And as he came down, what was he saying?
[Witness]:
He was yelling about the dog, that I sprayed it and I noticed that he was carrying a handgun I think in his right hand. He had a pistol or some kind of gun. So he approached like halfway of the yard, and I told him that I was there to cut off the water and he needed to take the dog back. And he just kept saying that I wasn't going to spray the dog again, something like that. Then he proceeded to just hold the gun up and clock (sic) it like that. That's when I proceeded to go back to my vehicle and out of the alley.
[Prosecutor]:
Okay. Now back up a bit. You told him you were there to shut off the water and he needed to take his dog back?
[Witness]:
Yes.
[Prosecutor]:
And then you said that he said "You're not going to spray my dog again."
[Witness]:
Yes.
[Prosecutor]:
Were you going to spray his dog again?
[Witness]:
No.
[Prosecutor]:
What had you done with the mace at that point?
[Witness]:
I had put it back in my pocket.
The prosecutor then asked about the gun:
[Prosecutor]:
Okay. You said he held up a gun. What kind [of] gun was it?
[Witness]:
It was like an automatic, something that you can pull back.
[Prosecutor]:
Pull back the slide?
[Witness]:
Yeah.
[Prosecutor]:
For the record, you're making a motion like pulling back a slide on a gun?
[Witness]:
Yes.
[Prosecutor]:
Okay. And when he did that, did you feel threatened?
[Witness]:
Yes.
[Prosecutor]:
Did he say anything to you like — that he would shoot you?
[Witness]:
I don't recall him saying that. But when he did that (indicating), I just went back to my truck and pulled out of the alley.
[Prosecutor]:
Okay. When you pulled out of the alley, what did you do at that point?
[Witness]:
I called dispatch for the police.Mendoza explained he went around to the front of the house to see if appellant would leave. The police arrived in about three or four minutes but when the police searched the house they could not find appellant. Nor could they find a gun. Apparently, appellant had left through the back while Mendoza was in the front. Mendoza later met with a police detective on March 22, 2007 and picked appellant's photograph out of a photograph spread of several pictures. Mendoza signed and dated the photograph he chose. The photograph spread was introduced into evidence without objection. Mendoza testified appellant did not ask if he worked for the water department but that he told appellant he was there to shut off the water and that he needed access to the meter. He also said he was in uniform and his marked truck was right behind him. On cross-examination, Mendoza testified the dog was chained but with a chain long enough to allow the dog to go through the fence. There were several dogs in the yard. Mendoza admitted he maced the dog even though it was chained and that appellant came outside after he had maced the dog. Mendoza explained the procedure is to cut off the water first and then go to the door and tell the owner the water has been cut off. Mendoza described the hole in the fence as about a foot-and-a-half by three feet. A photograph of the house and the alley was admitted without objection, although Mendoza testified he remembered the house as shown in the photograph but did not remember the fence. Mendoza said he knew the dog was chained "after [he] sprayed it." Defense counsel asked Mendoza, "Isn't it true that [appellant] was not there on that particular day that this incident happened?" to which Mendoza replied, "He was there." When asked if he was sure it was appellant that he actually saw that day, Mendoza replied, "Yes, that's correct." Mendoza agreed there were also other people there as well and that he saw them but none was the person who confronted him with the gun. Mendoza described the dog as about two-and-a-half-feet tall and about forty-five to fifty pounds. He could not identify the fence shown in the photograph as the fence he saw on the date of the offense. When the police searched the house they found neither appellant nor the gun. At the conclusion of the prosecutor's questions, the trial judge asked questions. The trial judge asked Mendoza to take off his jacket and step back "so that you're about as far away from me as the defendant was from you." Mendoza complied. The trial judge had Mendoza demonstrate how appellant held the gun (that it was probably not pointed directly at Mendoza but a little off to the side) and when it was done (after he had told him he was there about the water). Mendoza confirmed that appellant did not follow him as he left the alley. The State next called Susan K. Lash, who testified she was employed as a Dallas police detective assigned to the crimes against persons division. She was assigned to this case as an investigator and described the events surrounding Mendoza's identification of appellant in a photograph spread. Lash characterized Mendoza's identification as "positive," stating he seemed "pretty sure." Lash said the officers who responded to the dispatch had talked to Mendoza at the scene; that Mendoza had given them a description of the assailant; that the officers were familiar with the house; and that the officers knew a man who fit the description given by Mendoza. Lash focused on appellant as a suspect through the responding officers' offense report. After the State rested its case, a sub rosa hearing was held in which appellant confirmed he knew he had a right to testify but that he chose not to do so. Without presenting any evidence, the defense rested its case, after which each side closed its evidence. Closing arguments were presented to the trial judge, after which the trial judge found appellant guilty. After the State presented punishment evidence consisting primarily of appellant's prior convictions and testimony from a Dallas sheriff's deputy connecting appellant to those prior convictions, each side rested. Closing arguments on punishment were presented. In light of appellant's prior criminal record, the trial judge fixed appellant's punishment in the aggravated assault case at eight years' confinement in the Institutional Division of the Texas Department of Corrections. Based on the same evidence, the trial court revoked appellant's deferred community supervision, found him guilty of criminal mischief, and assessed his punishment at two years' confinement in the state jail. No fine was assessed. Appellant was then sentenced in each case. This appeal ensued only in the aggravated assault case. Applying the respective standards of review earlier set out to the facts above, we conclude the evidence is both legally and factually sufficient to support the trial court's finding of guilt beyond a reasonable doubt that appellant committed the offense of aggravated assault on a public servant as charged. Having so concluded, we AFFIRM.
The range of punishment for a first-degree felony is confinement for five to 99 years or life with an optional fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003).
Although Mendoza left the alley and drove around to the front of the house, he did not leave the area.