TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00732-CR
v.
The State of Texas, Appellee
NO. 0986048, HONORABLE MIKE LYNCH, JUDGE PRESIDING
Factual Background
David Freeman and Paul Martin were co-owners of a rental house in the Lake Travis area. Martin was responsible for bookkeeping while Freeman took care of the day-to-day management. In April 1997, Freeman and Martin entered into a two-year lease agreement with James and Tina Brunson. Almost immediately the Brunsons fell behind in their rent. Freeman spoke with the Brunsons several times about the late rent but only received partial payments and excuses.
In early December 1997, Freeman received a phone call from Tina Brunson informing him that she had become estranged from James and would no longer be living on the property. During this conversation, Tina informed Freeman that several of the people living or frequenting the property were violent and involved in drugs. Shortly after talking to Tina, Freeman purchased a semi-automatic assault rifle for protection, fearing that his tenants might retaliate were he to evict them.
On March 29, 1998, while showing the property to a potential buyer, Freeman discovered four or five Dixie cups with marihuana growing in them. On that same occasion he learned that James Brunson and the other occupants were away in Mexico on vacation. Freeman was upset about the marihuana. He feared that the federal authorities could seize his property if they found marihuana being cultivated there. He decided to begin the eviction process immediately. Over the next few days, Freeman seized several items of personal property pursuant to a landlord's lien in order to secure payment of the past-due rent. The events which led to his conviction took place while Freeman was seizing property on March 30.
Freeman was loading some motorcycles onto a trailer when he was approached by Bryan Brunson, James's seventeen-year-old son, and Rachel Slaughter, Bryan's nineteen-year-old friend. Freeman's assault rifle was leaning up against the back of the trailer. Bryan and Rachel testified that Freeman was polite and calm at first, but when the conversation turned to the overdue rent, he began to yell, picked up the gun, and pointed it at them, warning that if anybody got in his way, he would "mow . . . [them] down."
Freeman testified that he neither pointed the gun at the two teenagers nor threatened to "mow down" anyone. He admitted, however, that he did vent his frustration at Bryan and Rachel, raised his voice at them, and told them that the gun was an automatic weapon and that he was angry at having to carry it to protect himself from his "drug crazed tenants." He further testified that while he did pick up the gun and walk away with it after this conversation, he could not remember whether he picked up the gun during their conversation.
Freeman was charged with aggravated assault and convicted of the lesser included offense of deadly conduct. See Tex. Penal Code Ann. §§ 22.01(a)(2) (West Supp. 2000), 22.02(a)(2) (West 1994), & 22.05 (West 1994). On appeal Freeman contends that because he was acquitted of aggravated assault, the evidence is factually insufficient to support his conviction for the lesser included offense of deadly conduct.
Discussion When conducting a factual sufficiency review, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. See Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). However, we will not substitute our judgment for that of the trier of fact and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
Section 22.05 of the Penal Code defines deadly conduct as follows:
(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
. . . .
(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
Tex. Penal Code Ann. § 22.05.
The trial court found that "David Freeman, recklessly engaged in conduct that placed another in imminent danger of serious bodily injury--not that he did it intentionally or knowingly, but that he was reckless in the action he took on that date in regard to those two people." Freeman argues that the only evidence supporting a finding that he put Bryan and Rachel in imminent danger of serious bodily injury is their testimony that he pointed a gun at them, and because this testimony describes an intentional act, the court must have found him guilty of aggravated assault if it had found the testimony credible. (1) We disagree.
The trier of fact is free to selectively believe all or part of the testimony introduced by either side. See Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). Credibility is a matter reserved for the factfinder. See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). What weight to give contradictory testimony is within the sole province of the factfinder because it depends largely on an evaluation of the witnesses' credibility and demeanor. See id. at 408-09.
At trial, Freeman testified that he could not recall whether he picked up the gun during his conversation with the teenagers. The teenagers testified that Freeman pointed the gun at them while threatening them. It is within the province of the trial court to find credible the two teenagers' testimony that Freeman picked up the gun and pointed it in their direction, while not finding credible their testimony that he purposefully pointed the gun at them while threatening to mow them down.
Moreover, the trial court was not required to find that Freeman pointed the gun at the teenagers in order to convict him of deadly conduct. If the trial court believed that Freeman picked up the gun and handled it carelessly during his angry speech--a scenario consistent with Freeman's testimony--there would no longer be a presumption of recklessness; nonetheless, the trial court could have found that Freeman recklessly put the victims in imminent danger of serious bodily injury. While directing his anger towards Bryan and Rachael, Freeman carelessly handled a loaded assault rifle. The danger of even an accidental discharge could be real enough to support an inference that Freeman recklessly put Bryan and Rachel in imminent danger of serious bodily injury. (2) We hold that Freeman's conviction was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Conclusion
We hold that the evidence is factually sufficient to support Freeman's conviction of deadly conduct. Accordingly, we overrule appellant's sole point of error and affirm the trial court's judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: July 27, 2000
Do Not Publish
1. To convict Freeman of aggravated assault the trial court would have had to find that
Freeman intentionally or knowingly threatened the two teenagers with imminent bodily injury
while exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
2. The Texas Penal Code defines recklessness as follows:
A person acts recklessly, or is reckless, with respect to the result of his conduct . . . when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
Tex. Penal Code Ann. § 6.03(c) (West 1994).
another in imminent danger of serious bodily injury--not that he did it intentionally or knowingly, but that he was reckless in the action he took on that date in regard to those two people." Freeman argues that the only evidence supporting a finding that he put Bryan and Rachel in imminent danger of serious bodily injury is their testimony that he pointed a gun at them, and because this testimony describes an intentional act, the court must have found him guilty of aggravated assault if it had found the testimony credible. (1) We disagree.
The trier of fact is free to selectively believe all or part of the testimony introduced by either side. See Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). Credibility is a matter reserved for the factfinder. See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). What weight to give contradictory testimony is within the sole province of the factfinder because it depends largely on an evaluation of the witnesses' credibility and demeanor. See id. at 408-09.
At trial, Freeman testified that he could not recall whether he picked up the gun during his conversation with the teenagers. The teenagers testified that Freeman pointed the gun at them while threatening them. It is within the province of the trial court to find credible the two teenagers' testimony that Freeman picked up the gun and pointed it in their direction, while not finding credible their testimony that he purposefully pointed the gun at them while threatening to mow them down.
Moreover, the trial court was not required to find that Freeman pointed the gun at the teenagers in order to convict him of deadly conduct. If the trial court believed that Freeman picked up the gun and handled it carelessly during his angry speech--a scenario consistent with Freeman's testimony--there would no longer be a presumption of recklessness; nonetheless, the trial court could have found that Freeman recklessly put the victims in imminent danger of serious bodily injury. While directing his anger towards Bryan and Rachael, Freeman carelessly handled a loaded assault rifle. The danger of even an accidental discharge could be real enough to support an inference that Freeman recklessly put Bryan and Rachel in imminent danger of serious bodily injury. (2) We hold that Freeman's conviction was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.