Opinion issued November 13, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00108-CR
____________
JOSEPH WISEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 918270
MEMORANDUM OPINION
A jury found appellant, Joseph Wiseman, guilty of deadly conduct and assessed his punishment at confinement for two years. The trial court suspended the sentence and placed appellant on community supervision for two years. In appellant’s sole point of error, he contends that the evidence was factually insufficient to support his conviction. We affirm.
Facts
Christopher Stanton, the complainant, testified that, on June 1, 2003, Ursola Wiseman, his sister and appellant’s wife, asked him to come over and help her remove some of her personal belongings from her and appellant’s apartment. The complainant agreed, and he arrived about 25 minutes later, parked his truck in the apartment complex parking lot, and proceeded up a flight of stairs leading to his sister’s and appellant’s apartment. Ms. Wiseman had her personal belongings ready to be moved, and the complainant began moving them to his truck.
Shortly thereafter, while the complainant was loading some of his sister’s belongings onto his truck, appellant arrived at the apartment complex with his sister and his two-month-old son. Appellant walked halfway up the stairs leading to his apartment, looked back down to the complainant, and told him “[t]hat’s where you’d better stay at.” The complainant complied with appellant’s order so as “[t]o show him respect.”
While the complainant was waiting in the parking lot, he heard his sister and appellant arguing “over who was going to take [their] child,” and then he heard a child’s scream. The complainant “was very concerned about the child,” so he walked about mid-way up the stairs leading to the apartment. Appellant, who was standing in the doorway of the apartment, “turned around and looked at [the complainant]” and said, “[d]on’t you come into my home.” Appellant then pulled out a handgun magazine clip, reached over to a bookshelf by the front door, picked up his handgun, and “inserted the clip.” The complainant immediately retreated down the stairs to the parking lot, but he did not make it very far before appellant fired his handgun in the complainant’s direction. At this point, another apartment complex resident called for emergency assistance.
Houston Police Officer R. Johns testified that he arrived at the apartment complex shortly after the shooting. Once he was there, Johns and another officer searched appellant’s apartment, and the officers found a .25 caliber handgun, a handgun magazine clip, and a spent cartridge under appellant’s bed. The officers searched the complainant’s sports bag and his truck, but they did not find any weapons.
Appellant testified that the complainant had a “violent” reputation in the community, and that, on the day of the incident, he asked the complainant “about 12 times, please do not come [into] my house.” However, the complainant entered his apartment while he was having a “verbal argument” with his wife, grabbed appellant and threw him against a “wet bar” near the bookshelf, and stated that he had been “waiting to whoop [sic] [appellant].” However, when Ms. Wiseman “got on the phone” to call for emergency assistance, the complainant ran out of the apartment. Appellant testified that he then moved to the doorway of the apartment and saw the complainant reach into his sports bag and pull out what appeared to be a handgun. At this point, appellant “feared” for his life and for the lives of his sister and his child, so he reached over to the bookshelf, grabbed his handgun, and “discharged” it.
Factual Sufficiency of the Evidence
In appellant’s sole point of error, he argues that the evidence was factually insufficient to support his conviction because of “the overwhelming weight of the evidence in support of [his] need to act in self-defense.” Appellant asserts that he “reasonably believed,” based on the complainant’s words and actions, that the complainant was a danger to him, and that firing his handgun in the complainant’s direction was “reasonably necessary” to avoid being assaulted by the complainant.
The factual sufficiency of the evidence is reviewed by examining all of the evidence neutrally and asking whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
A person commits the offense of deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals. Tex. Pen. Code Ann. § 22.05(b)(1) (Vernon 2003). However, a person is justified in using force against another when and to the degree that he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Id. at § 9.31(a) (Vernon 2003).
Appellant admitted that he fired his handgun in the complainant’s direction. But he testified that he “feared” for his life and for the lives of his sister and his child because the complainant assaulted him in his apartment and then ran downstairs and appeared to reach into his sports bag and pull out a handgun. Furthermore, appellant testified that he had to resort to firing his handgun in appellant’s direction because the complainant could have easily re-entered his apartment by “kicking the door open.” In contrast, the complainant testified that, as he was walking up the stairs to the apartment, appellant “turned around and looked at him,” said “[d]on’t you come into my home,” and then fired his handgun in the complainant’s direction. The complainant denied getting into a physical confrontation with appellant, and he testified that he never kept a handgun in his sports bag. Moreover, the officers found no weapons in their search of the complainant’s truck and sports bag.
What weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, the jury was free to believe or disbelieve all or any part of the complainant’s or appellant’s testimony. A court of appeals must show deference to such a jury finding. Id. at 409. Moreover, a jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410. Accordingly, we hold that appellant has not shown that the proof of his guilt was so obviously weak as to undermine confidence in the jury’s determination or that the proof of his guilt was greatly outweighed by contrary proof.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).