Affirmed and Memorandum Opinion filed April 24, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-00117-CR
____________
ANTHONY WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1101242
M E M O R A N D U M O P I N I O N
A jury found appellant, Anthony White, guilty of felony burglary of a habitation with intent to commit aggravated assault, and further found that he used a deadly weapon. At appellant=s request, the trial judge assessed his punishment, and sentenced him to 40 years= confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends that the trial court erred in failing to instruct the jury on the lesser-included offense of criminal trespass of a habitation. Appellant also contends that the evidence is legally and factually insufficient to prove that he exhibited a deadly weapon and that he intended to commit aggravated assault. We affirm.
Factual Background
Dan Stone worked as a contractor for appellant=s ex-girlfriend, Viola Lee. On May 27, 2006, as Stone drove toward Lee=s house, he recognized appellant=s car, which appellant had parked at an angle across the road. Stone saw appellant coming toward him with a sawed-off shotgun. Stone tried to evade appellant by driving away, but appellant followed in his car. Stone eventually drove between two houses and Abailed out@ of his truck when he saw appellant getting out of his car holding a Apistol@ or small handgun different from the sawed-off shotgun appellant had carried earlier.
Patrick Giordano, the complainant, was watering plants in his yard when he saw Stone drive his truck onto the grass between his and his neighbor=s house. Giordano did not know Stone. When the truck stopped, Giordano watched as Stone jumped out, jumped over Giordano=s Cadillac, which was parked in his driveway, and ran into Giordano=s garage. Stone screamed, hollered, and cried as he ran. Giordano thought Stone Awas nuts at the time,@ and he yelled at Stone to leave his garage. Instead, Stone tried to hide beneath some sheetrock in Giordano=s very cluttered garage.
Giordano ran into his house to call the police. Then, after asking his wife to call 911, he went back outside and continued screaming at Stone to get out of his garage. Giordano then heard appellant hollering, AI=m going to put a cap in your ass.@ He watched as appellant walked rapidly toward the garage, waving a gun from side to side. Appellant came within six or seven feet of Giordano, and Giordano focused his attention on appellant=s gun. Giordano, who had over forty-seven years of experience with guns, described the gun appellant was holding as Asmall@ and a ASaturday Night Special.@
Giordano then saw appellant walk into his garage without permission and step three to five feet toward where Stone was hiding. Appellant Alooked and peeked@ as Giordano told him to AGet the F out of my garage.@ Appellant looked at Giordano, turned around, and walked back down the driveway, while placing the gun into a Crown Royal sack he had in his other hand. Appellant threw the gun into the car with his passenger, and then grabbed a metal bat. Appellant took the bat and Abeat about a hundred percent@ of Stone=s truck with it. Stone, hiding in Giordano=s garage and fearing for his life, did not see what was happening, but he testified that he heard gunfire and the sound of appellant beating his truck with the bat.
Appellant returned to his car and someone drove up asking, ADid you cap his ass?@ Appellant responded, ANo, he=s hiding in that F-ing garage.@ Then both cars drove away and the police arrived. After appellant left, Stone came out of the garage, shaking, quivering, crying, and Ascared to death.@
Appellant testified as the only witness for the defense. He claimed that he did not possess any guns and never entered Giordano=s garage. Appellant admitted, however, that he beat Stone=s car with a baseball bat. According to appellant, Stone had hit his car, Arun [him] off the road, [and] took off,@ and he was chasing Stone to try to stop him and talk to him.
Analysis of Appellant=s Issues
I. Lesser-included Offense
In his first issue, appellant contends the trial court erred in failing to instruct the jury on the lesser-included offense of criminal trespass of a habitation. According to appellant, the evidence was contested concerning whether (1) he entered Giordano=s garage, (2) if he entered Giordano=s garage, he intended to commit aggravated assault, and (3) if he entered Giordano=s garage, he possessed a deadly weapon. Appellant points out that, contrary to Giordano=s testimony, he testified that he did not go into the garage and he did not have a gun. Appellant also points to Giordano=s inability to recall some of the details of the incident[1] and his failure to specifically identify the gun he saw appellant holding as a firearm or deadly weapon. Appellant further contends that, if he entered the complainant=s habitation, it was only a trespass and not with the intent to commit aggravated assault. Thus, appellant contends, based on the evidence presented at trial, he could have been found guilty of criminal trespass of a habitation.
A. Applicable Law and Standard of Review
A two-step analysis is applied to determine if a defendant is entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. art. 37.09. In the first step, the elements of the offense as alleged in the indictment are compared to the statutory elements of the potential lesser-included offense. Hall, 225 S.W.3d at 535B36. If the elements of the lesser offense could be established by proof of the same or less than all of the facts required to establish the commission of the charged offense, then the analysis moves to the second step. Id. In the second step, the evidence adduced at trial must be reviewed to determine if there is some evidence to support instructing the jury on the lesser-included offense. Id. at 536. To support submission of the lesser-included offense, the evidence must include proof of the lesser offense, and the evidence must show that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. The evidence must establish the lesser‑included offense as a valid, rational alternative to the charged offense. Id.; Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997).
In determining whether the trial court erred in failing to give a charge on the lesser-included offense, we review all of the evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). If the evidence raises the issue of a lesser-included offense, a jury charge must be given based on that evidence, A>whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.=@ Id. at 672 (quoting Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)). However, a charge on the lesser-included offense is not required when the defendant presents no evidence or presents evidence that no offense was committed. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
B. Analysis of Issue
Here, appellant was charged with burglary pursuant to Texas Penal Code section 30.02, which provides that a person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
See Tex. Penal Code ' 30.02.[2] A person commits criminal trespass if he enters or remains on or in property of another without effective consent and had notice that the entry was forbidden or received notice to depart but failed to do so. See Tex. Penal Code' 30.05(a).
Criminal trespass of a habitation may be a lesser-included offense of burglary of a habitation with the intent to commit a felony or theft. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Day v. State, 532 S.W.2d 302, 304B06 (Tex. Crim. App. 1976), disapproved on other grounds, Hall, 225 S.W.3d 524 (Tex. 2007). We will assume for purposes of this issue that the first step of the analysis is satisfied. However, to be entitled to an instruction on criminal trespass of a habitation, the second prong of the test must also be satisfied. Specifically, the evidence must raise an issue that the defendant, if guilty, is guilty only of the lesser offense of criminal trespass of a habitation. See Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005); Aguilar, 682 S.W.2d at 558.
Here, appellant affirmatively denied entering the garage, and he denied possessing any guns. According to appellant, he did not commit burglary of a habitation, aggravated assault, or criminal trespass to a habitation. As the Court of Criminal Appeals explained in Lofton, A[a] defendant=s own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense.@ Lofton, 45 S.W.3d at 652; see also Aguilar, 682 S.W.2d at 558 (stating that if a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser include offense, then a charge on a lesser include offense is not required). Instead, the evidence Amust establish that if a defendant is guilty, he is guilty only of the lesser included offense.@ Lofton, 45 S.W.3d at 652. Appellant=s testimony did not offer any evidence adequate to raise the lesser-included offense of criminal trespass to a habitation.
Further, there is no evidence from any other source from which a rational jury could find that if appellant was guilty, he was guilty only of criminal trespass. Indeed, the other evidence in the record demonstrated that appellant carried a firearm into Giordano=s garage with the intent to cause Stone serious bodily injury. Stone testified that, when he bailed out of his truck and ran for Giordano=s garage, he saw appellant holding a pistol. Giordano testified that he saw appellant holding a gun and waving it around as he approached the garage. Giordano further saw appellant Alook[ing] and peek[ing]@ in the garage as he walked three to five feet toward where Stone was hiding. Appellant declared, AI=m going to put a cap in your ass.@ Then, appellant=s cohort asked if appellant was able to Acap his ass?@ Stone also remembered hearing someone ask appellant, ADid you get him?@ Appellant replied, ANo, he=s hiding in that F-ing garage.@
Appellant=s contention that Giordano=s failure to specifically identify the gun as a Afirearm@ or Adeadly weapon@ is also without merit. As discussed in greater detail below, the evidence is legally and factually sufficient to support the jury=s finding that appellant used a deadly weapon. Therefore, on these facts, no rational juror could find that if appellant was guilty, he was guilty only of criminal trespass.
The trial court did not err by denying appellant=s request for an instruction on criminal trespass to a habitation in this case. We overrule appellant=s first issue.
II. Appellant=s Legal and Factual Sufficiency Issues
In his second and third issues, appellant contends that the record contains legally and factually insufficient evidence to prove he used or exhibited a deadly weapon. In his fourth and fifth issues, appellant contends that the record contains legally and factually insufficient evidence to prove he intended to commit aggravated assault. We address these contentions below.
A. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Although we consider all evidence presented at trial, we may not re‑weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).
B. Factual Sufficiency
When conducting a factual‑sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence). Thus, while we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
C. The Evidence that Appellant Used or Exhibited A Deadly Weapon
Appellant briefs the legal and factual sufficiency issues concerning the affirmative deadly weapon finding together, so we will address them similarly. In his second and third issues, appellant contends that the evidence is legally and factually insufficient to prove he used or exhibited a firearm. See Tex. Penal Code ' 1.07(a)(17)(A) (defining Adeadly weapon@ as Aa firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury@). Appellant points out that there was no testimony that the Agun@ he allegedly was carrying was a firearm or a deadly weapon. He also points out that there was no evidence that a firearm was recovered during the police investigation or when he was arrested, and no evidence that the gun was operable. Further, appellant testified that he had no gun.
However, the evidence showed that two witnesses, Giordano and Stone, testified that they saw appellant carrying a gun. Giordano testified that he had forty-seven years= experience with firearms and recognized the gun as a ASaturday Night Special.@ He saw appellant waving and Apanning@ the gun around. Giordano testified that, based on his extensive experience, he recognized a gun when he saw one. Stone also testified that he saw appellant approaching him at Giordano=s house with a Apistol@ in his hand. He also claimed he heard gunfire as he hid in Giordano=s garage.
The Court of Criminal Appeals has held that A[t]estimony using any of the terms >gun,= >pistol= or >revolver= is sufficient to authorize the jury to find that a deadly weapon was used.@ Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (rejecting argument that evidence is sufficient only if the witness uses the term Afirearm@ or otherwise proves the use of a Adeadly weapon@). This Court has also held that testimony the defendant threatened the victims with a Agun@ sufficiently authorized a rational jury to find he used a Afirearm@ to commit the crime. Carter v. State, 946 S.W.2d 507, 511 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). Additionally, a complainant=s or witness=s testimony that the accused displayed a gun does not require corroboration by physical evidence or expert testimony. Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985). Therefore, Giordano=s and Stone=s testimony that they saw appellant with a gun sufficiently proved he displayed a firearm. The only controverting evidence was appellant=s testimony that he had no gun, and the jury was free to disbelieve this testimony and believe the State=s witnesses.
Concerning appellant=s claim that the State failed to present evidence the gun was operable, such evidence is not required. The Court of Criminal Appeals has held that a forty-five automatic pistol was a Afirearm@ even though it was missing its clip and firing pin when recovered. Walker v. State, 543 S.W.2d 634, 637 (Tex. Crim. App. 1976). Because the weapon was manifestly designed for the purpose of inflicting death or serious bodily injury, and this fact was evident to the victim, the evidence was sufficient to prove the defendant used a deadly weapon. Id.; see also Wright v. State, 582 S.W.2d 845, 847 (Tex. Crim. App. 1979 (AThe State is required to prove only the use of a deadly weapon; if its proof shows a firearm, it need not prove that it was operable.@); Moore v. State, No. 14-00-00110-CR, 2001 WL 777059, at *2 (Tex. App.CHouston [14th Dist.] July 12, 2001, pet. ref=d) (per curiam) (not designated for publication) (holding evidence was legally and factually sufficient to demonstrate pistol was a firearm even though it was inoperable). Therefore, the State=s failure to prove the gun was operable does not render the evidence legally or factually insufficient.
We conclude that the evidence was both legally and factually sufficient to prove that appellant used or exhibited a firearm. We overrule appellant=s second and third issues.
D. The Evidence that Appellant Intended to Commit Aggravated Assault
In his fourth and fifth issues, appellant contends that the evidence is legally and factually insufficient to prove that he intended to commit aggravated robbery. He incorporates his argument from issues two and three to argue that, absent evidence he possessed a firearm, there is no proof beyond a reasonable doubt that he intended to commit aggravated assault upon entering Giordano=s garage. However, we have concluded that the evidence was legally and factually sufficient to show that appellant displayed a firearm; therefore, this argument must fail.
Further, the evidence of appellant=s intent, as previously discussed, is sufficient to support the jury=s verdict. The jury could have rationally inferred that appellant=s threat to Acap your ass@ was directed to Stone because appellant chased Stone into Giordano=s garage, and the jury likewise could have concluded that appellant=s threat to Acap@ Stone, while holding the gun, meant he intended to shoot him. See Johnson v. State, No. 09-95-248-CR, 1997 WL 34387, at *3 (Tex. App.CBeaumont Jan. 29, 1997, no pet.) (not designated for publication) (stating that appellant=s statement he would Apop a cap in your ass@ was a specific threat of bodily injury meaning he would shoot the victim). Therefore, we hold that the evidence is legally and factually sufficient to support the jury=s verdict. We overrule appellant=s fourth and fifth issues.
Conclusion
We overrule appellant=s issues and affirm the trial court=s judgment.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed April 24, 2008.
Panel consists of Justices Fowler, Frost and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Specifically, appellant points to Giordano=s testimony that he could not recall the time of day when the incident occurred or whether he gave the police a statement.
[2] The indictment against appellant alleged in part that he Adid then and there unlawfully, with intent to commit AGGRAVATED ASSAULT enter a habitation owned by PATRICK GIORDANO, a person having a greater right to possession of the habitation than [appellant] and hereafter styled the complainant, without the effective consent of the complainant, namely, without any consent of any kind.@ A person commits aggravated assault if the person commits assault and (1) causes serious bodily injury to another, including the person=s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. See Tex. Penal Code ' 22.02(a). A person commits assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Tex. Penal Code ' 22.01(a).