Opinion issued March 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00214-CR
NO. 01-06-00215-CR
NO. 01-06-00216-CR
____________
RONALD J. HAMILTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1033104, 1033105, & 1033106
MEMORANDUM OPINION
After appellant, Ronald J. Hamilton, tried jointly with co-defendant, Shedrick Jermane White, pleaded guilty to the offenses of unlawful possession of a firearm by a felon (1) and aggravated robbery, (2) a jury found him guilty of the offense of aggravated assault on a public servant. (3) Appellant pleaded true to the allegation in an enhancement paragraph that he had a previous felony conviction, and the jury assessed his punishment at confinement for 60 years in the aggravated robbery case, 20 years in the unlawful possession of a firearm by a felon case, and 55 years in the aggravated assault on a public servant case. In four points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for aggravated assault on a public servant and that, in regard to all three cases, the trial court erred in admitting evidence that the complainant in the aggravated robbery case came to the United States "for a better life" and in excluding evidence "regarding the prison system" during the punishment phase of the trial.
We affirm.
Factual Background
Sergio Palomo testified that on the night of July 6, 2005, he hosted a party at his automobile mechanic and body shop, which also served as his family's residence. At midnight, the only people remaining at the party were Palomo, his stepson, Juan Sosa, one of Palomo's friends, Carmelo Hernandez, and Palomo's wife, Leonora Palomo, who was inside the residence. While outside talking on his cellular phone, Palomo felt a man grab him from the back and put a gun to his head. The man, wearing a mask, pushed Palomo to the ground, reached into Palomo's pockets, and removed his belongings. Another man, also wearing a mask, pointed a gun at Sosa and Hernandez. Palomo explained that he could not state the type of gun that was used against him, but that the other man pointed a "revolver" at Sosa and Hernandez. Palomo then saw the man who pointed the gun at his head, who was the shorter of the two suspects and the more dominant of the two, enter his home.
Leonora Palomo ("Leonora"), with the assistance of a Spanish translator, testified that she looked outside, saw two men, each with a gun, and called for emergency assistance. Once police officers arrived, Leonora went outside and then led the officers into the home. Leonora stopped when she saw appellant, with his face exposed and a gun in his hand, in her bedroom. After appellant pointed a gun at her, she ran into another room and told the officers that he was in her bedroom. "About two seconds" after she saw appellant in her bedroom, Leonora heard gunshots coming from inside the house.
Carmelo Hernandez, with the assistance of a Spanish translator, testified that as White held a gun on him and Sosa, appellant held a gun to the back of Palomo's head. Hernandez explained that both assailants had a gun, "one automatic" and the other "a pistol or a revolver." While White remained with Hernandez, Palomo, and Sosa outside, appellant went into the house. Before the police officers arrived, White took Hernandez, Palomo, and Sosa inside the house. When Palomo got up to go look for his wife, Hernandez and Sosa remained in a room inside the house, and they heard several shots fired.
Juan Sosa testified that the shorter suspect, who he later identified as appellant, had a "silver gun." Appellant went inside the home to look for narcotics and then came out and told White to bring Sosa, Palomo, and Hernandez inside the home.
Houston Police Department ("HPD") Officer M.T. Ferguson, the complainant, testified that on July 6, 2005, he was dispatched to the Palomos' home, responding to "a home invasion in progress." Ferguson explained that he was dressed in his police officer's uniform and he arrived at the scene in a marked patrol car. After he followed Leonora inside the home, "[a] black male with a silver revolver jumped out of the middle hallway door and point[ed] it at [Ferguson]." Ferguson stated that he was sure that the weapon was a "revolver" and he "saw one shot discharge from this weapon and [he] heard two pops." After the man fired his gun, he ran down the hallway, opposite from Ferguson. Ferguson explained that the lighting in the hallway was sufficient for the shooter to see that Ferguson was a uniformed police officer. Although Ferguson was not able to identify the shooter in the hallway, he thought that it "was a large person" that had pointed the gun at him. He was also sure that the man who fired at him used a "revolver," not a semiautomatic handgun. Although Ferguson heard two gunshots while in the hallway, he was not struck.
HPD Officer K.L. Raven testified that once inside the hallway, a man pointed a "silver or chrome" gun at Officers Raven, Ferguson, and Wilkes. He retreated to "get cover" and, as he turned around, heard a gunshot. Raven could not identify whether the gun was a semiautomatic or a revolver.
HPD Officer J. Scales testified that as Officers Raven, Ferguson, and Wilkes entered the home through the front, he and HPD Officer Adams heard a gunshot come from inside as they walked toward the rear of the home. Scales thought that one of the officers or a suspect had been shot. Scales and Adams then saw two men exit the back of the house, and Adams yelled at them to "drop the gun." When both men pointed their weapons at Scales and Adams, the two officers then began firing at the suspects. Scales explained that when appellant "got up and tried to reach for [a] weapon," Scales opened fire again. Scales noted that appellant was "more or less closer to the garage," and White was closer to a car. Although White complied with the officers' verbal commands, appellant moved toward his weapon. After appellant was shot again, he finally complied with the officers' instructions. HPD Officer E.L. Wilkes testified that, at that point, he kicked a semiautomatic weapon away from appellant, and he did not feel there was a threat from the other man with the revolver.
Officer R. Gutierrez, assigned to the HPD Crime Scene Unit, testified that once he arrived at the scene, the other officers told him that a shot had been fired inside the home. Accordingly, he went inside the home to look for bullet strikes and possible fired cartridge casings. Officer Ferguson told Gutierrez that the weapon he had seen was a revolver. In describing the differences between a revolver and semiautomatic handgun, Gutierrez explained that a revolver has a chamber that you "have to open up, place the bullets in, close it, fire,""[t]he fired cartridge casing remains within the cylinder," and the casing is not ejected. He explained that in regard to a semiautomatic, "you have a magazine which holds the ammunition, comes out, you place it in, you have to take the slide, pull it back, it chambers a round into the weapon as it's fired." "The fired cartridge casing is then ejected from the port" and "does not remain within the weapon." Gutierrez was surprised when he found a "fired cartridge casing" in the hallway area because he had been told by Officer Ferguson that the suspect had a revolver. Based upon his investigation of the crime scene, including the facts "that the revolver was empty" and "not loaded," Gutierrez concluded that a bullet strike inside the house came from a semiautomatic weapon, not a revolver as stated by Officer Ferguson.
HPD Firearms Examiner K. Downs, in explaining the difference between a fired shell casing and a fired bullet, testified that "[a] cartridge is the entire component. It consists of the bullet, the cartridge case, the primer and the powder. That's the entire component. It sits inside the firearm." "[T]he cartridge case, in the case of a semiautomatic weapon, is extracted and ejected clear of the firearm." Downs further testified that she "looked at fired cartridge cases," "five separate firearms," and "several bullets." She found "a fired S&W cartridge case" in the semiautomatic pistol. Downs explained that a fired cartridge casing was recovered from within the weapon, meaning that the weapon would not be capable of being fired, and in order to correct the malfunction, one would need to "clear the slide," thus ejecting the cartridge casing. Additionally, at least three fired cartridge casings matching the semiautomatic weapon were recovered. Downs found no physical evidence indicating that a revolver had been fired at the scene.
Legal and Factual Sufficiency
In his first two points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for the offense of aggravated assault on a public servant because it is "apparent" that White, who possessed the revolver, shot at Officer Ferguson. He argues that because "Officer Ferguson testified that he saw a 'big silver revolver' in his face and that he 'saw a shot fired from the revolver,'" appellant cannot be the one who shot at Ferguson. He also asserts that his conviction cannot stand under the law of parties. See Tex. Pen. Code Ann. § 7.02(a), (b) (Vernon 2003).
Appellant also argues that the evidence is legally and factually insufficient "to show that the shooter of Officer Ferguson knew that [he] was a public servant or a police officer" because "it was dark and late at night and the trailer home's hallway was narrow enough to cause the officers to use their flashlights." He also asserts that the officers "were unable to announce that they were police."
Standard of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact finder's. Watson, 204 S.W.3d at 414-15.
We note that when reviewing challenges to the sufficiency of the evidence, the standard of review is the same for both direct and circumstantial evidence cases. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
Aggravated Assault on a Public Servant
A person commits the offense of aggravated assault on a public servant if the person intentionally or knowingly threatens another with imminent bodily injury and the person uses or exhibits a deadly weapon during the commission of the offense, and the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2006).
Here, viewing all the evidence in the light most favorable to the jury's verdict, Sergio Palomo and the other robbery victims testified that appellant entered Palomo's home, possessing a firearm. Leonora testified that she saw appellant in a bedroom with a gun and when he pointed the gun at her, she ran away. Approximately two seconds later, she heard gunshots coming from inside the home. Contemporaneously, according to Officer Ferguson, a man jumped out of the hallway and fired a shot in his direction. Also, Crime Scene Unit Officer Gutierrez and Firearms Examiner Downs testified that the physical evidence recovered from inside the home indicated that a semiautomatic weapon was used against Ferguson, not a revolver. Moreover, the evidence shows that during the robbery appellant possessed a semiautomatic weapon and White possessed a revolver. (4) Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant intentionally or knowingly threatened Officer Ferguson with imminent bodily injury while exhibiting a deadly weapon.
In conducting our factual sufficiency review, we note that Officer Ferguson testified that he was sure that the weapon discharged in his direction was a revolver, not a semiautomatic handgun. However, Crime Scene Unit Officer Gutierrez and Firearms Examiner Downs both testified that the physical evidence recovered from inside the home indicated that a semiautomatic weapon was fired against Ferguson, not a revolver. Again, we note that we may not substitute our judgment for that of the fact finder, including their determinations involving the credibility of witnesses. See Cain, 958 S.W.2d at 407. Thus, viewing the evidence neutrally, we conclude that it is not so obviously weak such that the verdict seems clearly wrong and manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence.
In regard to appellant's argument that the evidence is legally and factually insufficient "to show that the shooter of Officer Ferguson knew that [he] was a public servant or a police officer," we note that an "actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer." Tex. Pen. Code Ann. § 22.02(c) (Vernon Supp. 2006). Here, the officers testified that they arrived at the scene in their marked patrol cars and wearing their HPD uniforms. Officer Ferguson specifically testified that the lighting in the hallway was sufficient for the shooter to see him, and he believed that the shooter could tell that he was a police officer.
Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that appellant knew that Officer Ferguson was a police officer when he fired his gun at him. Furthermore, viewing the evidence neutrally, including the fact that it was dark inside the home and that the police officers did not announce their presence, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is legally and factually sufficient to support appellant's conviction for the offense of aggravated assault on a public servant. Having held that the evidence is legally and factually sufficient to support appellant's conviction as the principal, we need not consider whether the evidence is legally and factually sufficient to support his conviction under the law of parties.
We overrule appellant's first and second points of error.
Erroneously Admitted Evidence
In his third point of error, appellant argues that "it was error for the trial court to allow testimony over defense objection that the reason [Sergio Palomo] came to the United States was to better his life" because the evidence "had no logical relevance or significance."
As a prerequisite to presenting a complaint for appellate review, the record must show that a timely objection was made to the trial court. Tex. R. App. P. 33.1(a); see also Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) ("A defendant must make a timely objection in order to preserve error in the admission of evidence."). An objection should be made as soon as the ground for objection becomes apparent. Lagrone, 942 S.W.2d at 618. If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. Id.
During Palomo's testimony, on direct examination, the following exchange occurred,
[State]: Okay. Why did you come to the United States?
[Palomo]: For a better life.
[State]: Okay. Did you have a family here?
[Palomo]: Yes.
[State]: All right. Who was here from your family?
[Palomo]: My wife, my son and my sister.
[State]: Okay. And have you tried to make a better life here in the United States?
[Palomo]: Yes ma'am.
[State]: And have you been able to do so?
[Palomo]: Yes.
[Appellant]: Objection, Your Honor. Relevance.
[Trial Court]: Overruled.
(emphasis added).
Here, appellant did not object until after several other questions had been asked and answered. Accordingly, we hold that appellant has waived any error regarding Palomo's testimony that he came to the United States "[f]or a better life."
We overrule appellant's third point of error.
Erroneously Excluded Evidence
In his fourth point of error, appellant argues that "it was error for the trial court not to allow the jury to hear testimony regarding the prison system during the punishment hearing" because his "experience in prison, both good and bad, should have been presented to the fact-finders in order [to] help them to properly assess the appropriate sentence" and "[t]he jury is entitled to hear such testimony since they had to make the determination of [a]ppellant's punishment."
During the punishment hearing, while appellant was testifying, the following exchange occurred,
[Appellant's Counsel]: Now, when you were in prison for those years, what effect, if any, did it have on you? Did it make you better? Did it give you some life skills with which to work with and give you some occupational skills? What did it do for you?
[Appellant]: I did earn my CDL license in TDC. I worked with youth, youths, six and a half years of my incarceration, through a program called Operation Outreach. I learned survival. And then I learned how to survive the system as - as far as being able to make it out alive. And there was other things that's not good. There's other things that I saw that are not good.
[Appellant's Counsel]: Like what, sir?
[State]: Objection, Your Honor. What things in prison that he saw that weren't good, I object.
[Trial Court]: Sustained.(emphasis added).
Error in the exclusion of evidence may not by urged unless the proponent perfected an offer of proof or a bill of exceptions. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). The record in this case does not indicate what the excluded testimony would have been. Absent a showing of what the testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Id. Accordingly, we hold that appellant has waived any error regarding the exclusion of his testimony "regarding the prison system."
We overrule appellant's fourth point of error.Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
1. 2. See id. § 29.03(a) (Vernon 2003). Appellate Cause Number 01-06-00216-CR; Trial
Court Cause Number 1033106.
3. 4.