Opinion
Nos. 05-09-01535-CR, 05-10-00360-CR
Opinion issued August 17, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F09-12973-TQ and F09-12975-TQ.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
A jury found appellant Mark David Zimmerman guilty of committing aggravated assault against sisters Ciarra and Sophia Hernandez. The jury assessed appellant's punishment at five years' confinement and a $2500 fine in each case. In six issues, appellant challenges the sufficiency of the evidence supporting both convictions, the trial court's failure to suppress statements appellant made to officers at the scene of the offenses, and the trial court's supplemental instruction to the jury during the punishment phase of trial. We affirm the trial court's judgments.
Background
On February 14, 2009, Ciarra and Sophie Hernandez-who were eleven and eight years old respectively-found a dog running loose. They knew the dog belonged to Sophia's friend Hope, whose house backed up to the same alley as the sisters' house. They put the dog on a leash and walked down the alley, intending to return the dog to Hope. As they reach Hope's back gate, they saw Hope's other dog running loose as well. They knocked on the back gate, but there was no answer. The girls proceeded around to the front of Hope's house. Sophia took the leashed dog and Ciarra ran after the second dog, attempting to catch it. Sophia went to the front door and knocked for about one minute. While she knocked she called out: "Hope, it's me, Phia," and "Are you there, Hope?" There was no answer. As Sophia stepped away from the door and started to walk toward her sister, the girls heard two gunshots. Both girls believed the shots came from the house and were very close to them. They hid in the bushes for a minute or two; then they crawled out and ran home by a different route. The same afternoon, appellant called 911 from Hope's house. Appellant told the 911 dispatcher that two shots had been fired outside his home. He stated that he had seen two black men in the backyard by the alley. Appellant said he saw the men with his dogs in the backyard and then saw the dogs run around to the front. He thought the men were trying to hurt the dogs; he heard the dogs yelping. He told the dispatcher that when he looked out the window the men started shooting. He asked the dispatcher to send a police car because he was afraid for himself and his family. He explained that he was "connected" to lots of things, and he made a reference to the Secret Service contacting him and the possibility of a leak. He told the dispatcher that he was holding a machine gun and that he was "cocked, locked, and ready to rock." Finally, when the dispatcher asked whether he had been drinking, appellant acknowledged that he had been drinking, smoking marijuana, and taking muscle relaxers. The Carrollton police responded to appellant's call. The first to arrive were Officers Branagan and Preneta. They had the dispatcher send appellant out of the house. The officers patted him down for safety reasons. He told the officers he had put the gun on the floor inside, as the dispatcher told him to do. Appellant also told the officers he was a drug dealer and a firearms dealer. He said he was involved in "some s —, "and he believed someone on the street was after him. Preneta asked if he could go in and check the house to make sure no one was hiding inside; appellant gave his consent. While Preneta was inside the house, appellant told Branagan that he was the one who had done the shooting. He told the officer he was shooting at two black guys because they were hurting his dog and because he thought someone was out to get him. The officer believed appellant was intoxicated and paranoid. The gun appellant had inside the house was a nine millimeter semiautomatic pistol. During the investigation of the crime, police found a nine millimeter shell casing in appellant's living room and a second casing, along with one live round, in the bathroom toilet. The investigator discovered two holes in the living-room-window's blinds and a broken window pane behind the holes. He used rods to identify the trajectory of the shots appellant fired. In his opinion, the shots were fired at an angle, toward the side of the front yard rather than straight out.Sufficiency of Evidence
In his first and second issues, appellant challenges the legal sufficiency of the evidence supporting his convictions. In his third and fourth issues, appellant challenges the factual sufficiency of the evidence. The Court of Criminal Appeals has recently directed that the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899. We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. We will apply this single standard to appellant's convictions. The jury found appellant guilty, in both cases, of committing aggravated assault by intentionally or knowingly threatening the complainant with imminent bodily injury through use of a deadly weapon. Appellant does not challenge that he used a deadly weapon. He acknowledges that he shot a gun twice from inside his home, through blinds and a window, to the outside. But he argues he did not intentionally or knowingly threaten the girls. He contends he could not see the girls because the blinds were down, and he contends the evidence does not place the girls where they would have been threatened by gunshots from his living room window. He asserts that he "shot through the blinds, arguably to scare off any attackers," and he acknowledges "he was guilty of being intoxicated, careless and irrational." Finally, he argues-as he did to the jury below-that while his conduct was reckless, the State did not prove beyond a reasonable doubt that he was guilty of aggravated assault. The evidence does not support appellant's argument that he was merely reckless in his conduct. Appellant told the police he was shooting at two black men who were hurting his dog and who were out to get him. Now he concedes he was the one firing the shots. But in his 911 call, immediately after the shooting, appellant was attempting to cast blame for the shooting elsewhere. He told the dispatcher that he saw the two men with his dogs in the back yard; then he saw them run to the front. He stated that when he looked out at them, the men shot at him. During that 911 call, as the State pointed out at trial, there is the unmistakable sound of a toilet flushing: the police found one of his casings and a live bullet in the toilet. Appellant was purposefully covering up his conduct. Moreover, to the extent appellant was relaying facts in his 911 call, the jury could have inferred that appellant did indeed look outside as the girls were in the back yard and when they ran with the dogs around to the front. The fact that appellant said he could hear the "men" and the dogs outside allowed the jury to infer he could hear Sophia, knocking and calling out and identifying herself for a full minute at the front door. But appellant did not respond to the child's voice he heard. Instead, moments later he fired out the window. And the detective's opinion was that appellant did not fire straight out the window, as if to frighten someone away. Instead, his opinion was that the gun was aimed at an angle toward the side of the front yard. Although the girls' testimony was not always exactly the same, both testified Sophia was coming from the front door and going toward the side-where Ciarra had been trying to catch the other dog-when appellant fired. Both testified the shots came from the house and were very close to them. When we consider all of the evidence in the light most favorable to the verdict, we conclude the jury was rationally justified in finding beyond a reasonable doubt that appellant intentionally or knowingly threatened Ciarra and Sophia when he fired the pistol from his window in their direction. See Brooks, 323 S.W.3d at 899. We overrule appellant's first through fourth issues.Suppression of Oral Statements
In his fifth issue, appellant complains of the trial court's failure to suppress oral statements he made while he was talking to the police. Appellant does not identify specific statements he wants suppressed, but the hearing below involved incriminating statements made in the presence of Officer Branagan. Those statements-all of which were introduced through Branagan's testimony-included: appellant had a machine gun in the house; he fired the gun at two black men in his yard; and he was a drugs and firearms dealer. Appellant contends these incriminating statements should not have been admissible at trial. The United States Supreme Court has pronounced the fundamental rule governing suppression of statements by an accused:[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). These protections against self-incrimination while in custody are codified in Texas as well. See Tex. Code Crim. Proc. art. 38.22 (West 2005). Appellant argues in this Court that he was in custody while he spoke to Officer Branagan outside his home. All of his appellate arguments are directed at that issue of whether or not he was, within the meaning of the law, in custody. But "interrogation" must reflect a measure of compulsion above and beyond that inherent in custody itself. The Court of Criminal Appeals has explained:
Miranda's safeguards do not exist to protect suspects from the compulsion inherent in custody alone, nor do they protect suspects from their own propensity to speak, absent some police conduct that knowingly tries to take advantage of the propensity.Jones v. State, 795 S.W.2d 171, 176 n. 5 (Tex. Crim. App. 1990). Thus, even if we assume-without deciding-that appellant was in custody when he made the incriminating statements, they would only be suppressed if they were the product of interrogation by the police officers. Not all police questioning can be categorized as interrogation. See id. at 174. General questions and routine inquiries made when arriving at the scene of a crime are not interrogation. Id. at 174 n. 3. Likewise, volunteered statements have never been barred by Miranda. Id. at 176. Officer Branagan testified that appellant volunteered his statements when the officers, on arriving outside his home, asked appellant questions like "what's happening, what's going on, what did you see[?]" Such general questions are not formulated to elicit incriminating statements. Moreover, the context of these questions was the police responding to a weapons call made by appellant himself. He urged the dispatcher to send police to his home. He told the officers "sure" when they asked if they could search his house. We conclude appellant was not subject to an interrogation when he made the incriminating statements. The trial court did not err by refusing to suppress the statements. We overrule appellant's fifth issue.