Morris v. State

Full title: DONALD WAYNE MORRIS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jul 24, 2007

No. 14-06-00564-CR (Tex. App. Jul. 24, 2007)

Opinion

No. 14-06-00564-CR

Memorandum Opinion filed July 24, 2007. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause No. 42,225.

Panel consists of Justices HEDGES, FROST, and SEYMORE.

MEMORANDUM OPINION

CHARLES W. SEYMORE, Justice.

A jury found appellant, Donald Wayne Morris, guilty of aggravated assault and sentenced him to four years' confinement. In three issues, he contends the evidence is legally and factually insufficient to support the conviction, and the trial court erred by refusing to charge the jury on the claimed lesser-included offense of misdemeanor deadly conduct. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.

I. BACKGROUND

Complainant, Kourtney James, was the only eyewitness who testified at trial. James lived with her aunt. Appellant and James were involved in a dating relationship. On May 13, 2005, James arrived home from school around 2:45 p.m. Later that day, appellant came to James's house. At the front door, they argued regarding appellant's failure to pick up James from school that day. At some point during this argument, appellant was standing approximately ten feet from James when he raised a gun in James's direction and fired into the front door of the house. After firing the gun, appellant told James, "Bitch, what would your auntie think if I lit these windows up and lit you up, too?" The appellant then walked away, telling a man across the street, "The bitch is tripping." Appellant voluntarily went to the Houston Police Department (HPD) about two hours after the incident. Officer D.E. Dexter testified that appellant told police that he did not fire a gun. Officer Dexter testified that appellant told him, "there was some individual across the street who did not get along with him that shot at him." However, appellant did not describe or identify this alleged shooter. Subsequently, appellant was convicted by a jury of aggravated assault and sentenced to four years' confinement.

II. LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Specifically, appellant contends the State failed to prove all of the elements of aggravated assault beyond a reasonable doubt.

A. Standard of Review

In determining legal sufficiency, we view all the evidence in the light most favorable to the verdict and then decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.CHouston [14th Dist.] 2005, pet. ref'd). In determining factual sufficiency, we review all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). Before we may reverse for factual insufficiency, we must first reach the conclusion, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing evidence, we must avoid intruding on the fact-finder's role as the sole judge of the weight and credibility of the witness testimony. See Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). We do not re-evaluate the credibility of witnesses or the weight of evidence and will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998).

B. Analysis

A person commits assault if he intentionally or knowingly threatens another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon Supp. 2006). Assault becomes aggravated assault when the person uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon Supp. 2006). At trial, James testified that she and appellant were arguing when appellant threatened to slap her. James responded by threatening to tell her brothers. Appellant then pulled his gun out and held it by his side. James asked appellant,"What you going to do, shoot me? You not going to be a man about it?" Appellant raised the gun in James's direction and fired it into the front door of the house. When appellant fired the gun, he was standing approximately ten feet from the front door. After firing the gun, appellant shouted: "Bitch, what would your auntie think if I lit these windows up and lit you up, too?" Appellant presented no witnesses to contradict James's account of the events. Based on James's testimony, the jury could reasonably have found that appellant intentionally and knowingly threatened James with imminent bodily injury. Further, the jury could reasonably have found that appellant not only exhibited but also used a deadly weapon during the commission of the assault. The jury was free to believe James's testimony that appellant produced a gun, raised it in her direction, and fired into her front door. Appellant argues that another gunman, standing across the street, could have fired the shot into James's door because James did not testify that she actually saw appellant fire the gun. To the contrary, James identified appellant as the shooter. Moreover, there is a marked difference between the sound James would have heard from a gun fired ten feet away as opposed to the sound of a gun fired from across the street. Appellant also argues that police did not recover the gun, no gunshot residue tests were performed, and his fingerprints were not on the bullet casing found in James's front yard. First, while each of these points may have evidentiary value, none are prerequisite to a conviction. It is not necessary for every fact to point directly and independently to the guilt of the accused; it is enough if the conclusion is warranted by the cumulative force of all incriminating evidence. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). Second, Officer Dexter testified that Houston police officers normally perform gunshot residue tests when the witness is the complainant and can identify the suspect. Officer Dexter also testified that a .25 caliber bullet casing was found in James's front yard fifteen to twenty feet from the front door. Officer Debbie Rowe, an evidence processor for HPD, testified that it is unusual to find any friction ridge detail (latent fingerprints) on a spent bullet casing because a bullet casing is small and any friction ridge detail is going to be minimal. Appellant further argues an assault did not occur because James never perceived that she was threatened with imminent bodily injury. To the contrary, James testified that when appellant produced the gun, she asked, "What you going to do, shoot me? You not going to be a man about it?" James further testified that after appellant asked her, "Bitch, what would your auntie think if I lit these windows up and lit you up, too," she ran to a friend's house and called the police because she was afraid appellant would follow through with his threat. Finally, Officer Terry Hickerson, who responded to the call, testified James's demeanor was "distraught" like "something had occurred" that "shook her up." The jury could reasonably conclude from this testimony that James was threatened with imminent bodily injury. Appellant also contends that the presence of a gun is evidence of a threat only when the gun is in close proximity to the victim. Appellant cites DeLeon v. State, 865 S.W.2d 139, 142 (Tex.App.CCorpus Christi 1993, no pet.) and Gaston v. State, 672 S.W.2d 819, 822 (Tex.App.CDallas 1983, no pet) in which courts have upheld convictions for aggravated assault. Appellant attempts to distinguish those cases from this case based upon the distance between the gun and James. This argument is misguided. First, the weapon in DeLeon was a knife. 865 S.W.2d at 142. The complainant in DeLeon testified that the defendant was more than an arm's length away when the defendant threatened him with a knife. Id. Certainly, under most circumstances, a gun is more dangerous than a knife whether the distance is ten feet or an arm's length. Second, in Gaston the weapon was a shotgun. 672 S.W. 2d at 821. The defendant held one hand over the complainant's mouth and held a shotgun in his other hand. Id. Although the court noted that the shotgun was close to the complainant's body, because a gun can be fired and hit an intended target at either one foot or ten feet, the proximity of the gun under these facts is not an issue. The jury could have concluded that James perceived a threat of imminent bodily injury from a gun ten feet away. Moreover, the DeLeon court noted that the mere presence of a deadly weapon, under proper circumstances, can be enough to instill fear and threaten a person with bodily injury. Id. (citing Gaston, 672 S.W.2d at 821). Appellant also argues James did not perceive a threat of imminent bodily injury because she took time to put pants on and run to a friend's house several doors down the street, rather than call on the neighbor next door. However, a reasonable jury could conclude that James's actions were not unusual or inappropriate, considering the probability that she was a frightened teenager. Moreover, James testified that she went to her friend's house several doors down the street because she did not know the neighbors very well. Examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found that appellant intentionally or knowingly threatened James with imminent bodily injury and used or exhibited a deadly weapon, a gun, during the commission of the assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2). Viewing the evidence in a neutral light, we further conclude that the jury's verdict is not contrary to the great weight and preponderance of the evidence and find the evidence factually sufficient. Accordingly, appellant's first and second issues are overruled.

III. LESSER-INCLUDED-OFFENSE INSTRUCTION

In his third issue, appellant contends the trial court erred by denying his request for a lesser-included-offense instruction for misdemeanor deadly conduct. However, the record reflects that appellant requested an instruction on felony deadly conduct, not misdemeanor deadly conduct. Under Texas Penal Code section 22.05(a), misdemeanor deadly conduct occurs when a person "recklessly engages in conduct that places another in imminent danger of serious bodily injury." TEX. PENAL CODE ANN. § 22.05(a), (e) (Vernon 2003). Under Texas Penal Code section 22.05(b), felony deadly conduct occurs when a person "knowingly discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied." TEX. PENAL CODE ANN. § 22.05(b), (e) (Vernon 2003). Specifically, appellant's counsel said:

We have one objection with regards to the inclusion of the Penal Code Section, 22.05(b), the deadly conduct charge wherein we would state for the record that as a lesser included offense of aggravated assault, deadly conduct should be contained within the charge and should state specifically that a person commits the offense of deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals or a habitation, building, or vehicle, and is reckless as to whether the habitation, building, or vehicle is occupied.

(emphasis added). Appellant clearly referred to Texas Penal Code section 22.05(b) and quoted the provision for felony deadly conduct. When the evidence supports a lesser-included offense, defense counsel's failure to request a charge or to object to an omission of the charge constitutes waiver. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994); Mohammed v. State, 127 S.W.3d 163, 169 (Tex.App.CHouston [1st Dist.] 2003, no pet.) (holding where the defendant requested a jury charge on aggravated robbery and not robbery, the defendant waived any right to submission of the lesser-included offense of robbery by not requesting it). Therefore, appellant waived any right to submission of the lesser-included offense of misdemeanor deadly conduct. We overrule appellant's third issue. Accordingly, the judgment of the trial court is affirmed.