AFFIRM; and Opinion Filed June 3, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00959-CR
JAMAL DESHUN APPLEWHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F11-00048-Y
MEMORANDUM OPINION
Before Justices Lang-Miers, Murphy, and Fillmore
Opinion by Justice Murphy
Jamal Deshun Applewhite appeals his conviction for aggravated assault with a deadly
weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011). Appellant raises
three issues challenging the legal sufficiency of the evidence and contending the trial court erred
by allowing a jury to assume guilt in a second punishment trial following a mistrial. We affirm.
BACKGROUND
Appellant pleaded not guilty to the charge of aggravated assault with a deadly weapon, a
BB gun. The jury found appellant guilty, but could not reach a verdict on punishment. The trial
court declared a mistrial and conducted a new trial on punishment only. A second jury assumed
guilt, found an enhancement paragraph true, and assessed punishment at fifteen years in prison.
DISCUSSION
Issue One: Legal Sufficiency of the Evidence
Appellant first challenges the sufficiency of the evidence to support the conviction for
aggravated assault with a deadly weapon. Specifically, he contends the evidence shows only the
offense of criminal mischief. He argues there was no testimony a BB gun was manifestly
designed to inflict death or serious bodily injury, so the State relied on the manner of the gun’s
use or intended use as capable of causing death or serious bodily injury. He states the
complainant’s fear was irrelevant; the question was whether the threat was made with the intent
to place the complainant in fear of imminent bodily injury. Appellant asserts the evidence shows
only appellant’s intent to damage the complainant’s truck.
We review appellant’s legal sufficiency challenge by considering all of the evidence in
the light most favorable to the verdict; based on that evidence and reasonable inferences, we
must determine whether a rational fact finder could have found the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Under this standard, the fact finder has full
responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We presume
the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that
determination. Id. at 326. Based on this standard, we do not reassess witness credibility. Id. at
319.
To obtain a conviction against appellant as charged, the State was required to prove
beyond a reasonable doubt that appellant intentionally or knowingly threatened the complainant
with imminent bodily injury while using or exhibiting a deadly weapon, a BB gun. See TEX.
PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2). A deadly weapon is “anything that in the manner
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of its use or intended use is capable of causing death or serious bodily injury.” Id. §
1.07(a)(17)(B) (West Supp. 2012).
The State presented five witnesses. Its first witness was Kristopher Barnes, the
complainant. Barnes testified that around 7:00 p.m. on April 26, 2010, he was driving home
from school, traveling southbound in the far left lane of Highway 635 in Mesquite, Texas. He
described traffic as not “bumper-to-bumper” but congested. He was traveling around fifty-five
miles per hour, and it was still light outside.
As Barnes was nearing the Oates exit, he noticed a yellow Crown Victoria swerve into
his lane and cut him off. He slammed on his brakes to avoid hitting the vehicle. He also honked
his horn, at which point the driver pulled “over in the lane beside [Barnes] and slowed down and
pulled a gun and shot into the side of [his] truck.” Barnes said both cars were traveling around
fifty-five miles per hour at the time.
Barnes described the car as a bright yellow Crown Victoria with “push bumpers” and
dealer’s plates. All he saw when he looked over was a man driving the car with a gun in his
hand; Barnes testified the man was pointing the gun in his direction. Barnes said he was
“panicked” and thought the man was going to shoot him. He knew the shots hit the side of his
truck because the noise was loud. He heard a thud and a noise like metal being hit. He slowed
down immediately and pulled behind the Crown Victoria.
While behind the Crown Victoria, Barnes called 911 and gave the 911 dispatcher
information about the car. Barnes then exited and, pursuant to instructions from the 911
dispatcher, met Mesquite Police Officer George Wayne Hensley nearby. Barnes described the
events to Hensley, who also took photographs of Barnes’s truck. The photographs were admitted
as evidence. Using the photographs, Barnes showed the jury the indentations on his vehicle that
resulted from the shots.
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On cross-examination, Barnes agreed the window in his vehicle was not “busted” and
nothing came into his truck. The three impact marks were near the back of Barnes’s vehicle by
the right rear wheel. He did not recall the placement of the shooter’s hands on the gun.
Hensley testified next. He described the dispatch he received on April 26 regarding the
shooting on Highway 635. The dispatch was a “10-18,” which is a shooting in progress,
involving a yellow “Crown Vic or a police-style car” that had pulled up beside a man and shot
the vehicle. After Hensley obtained a description from Barnes, he relayed the information to
officers, who found a vehicle matching the description. Barnes showed Hensley the dents in his
vehicle. Hensley testified that at that point, Barnes believed he had been shot at with a pistol.
Because of the small dents, Hensley thought it was a very small pistol or a BB gun that caused
the damage. Hensley had Barnes follow him to the Mesquite Police Department where he took
pictures of the vehicle. Hensley described the dents as marble-sized and deep “enough to dent
the metal to remove the paint and make [Hensley] believe that, you know, possibly that [Barnes]
was thinking that his vehicle was getting hit by an actual, you know, pistol bullet.”
On cross-examination, Hensley agreed to the description of the dents as “pea-size” and
that they were not caused by a firearm. He testified it appeared someone wanted to inflict
damage or pain on someone else and described it as “criminal mischief.” He said a BB gun can
be used as a deadly weapon.
Officer Matthew McCloud with the Mesquite Police Department testified that he was on
patrol when he received a call of possible shots fired on Highway 635, with the vehicle exiting
Town East Boulevard. Less than three minutes after receiving the dispatch, he noticed the
vehicle entering a drive-thru. He and another officer conducted a “felony stop”; the officers
“came out at gunpoint and pulled each person out of the car one by one.” They patted down the
two occupants. The driver was male, and the passenger was female.
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After clearing the vehicle, the officers conducted a protective sweep of the car, during
which they discovered two guns. McCloud testified the guns looked like “real guns,” but once
the officers “physically manipulated” them, they realized they were BB guns. McCloud
described one of the guns as “CO2 powered,” which means it has a CO2 cartridge inside the
handle of the pistol and is more powerful than a pressurized BB gun. He did not know if the
other gun was the same.
Mesquite Police Officer Jerry Allen Walzel testified he also received a dispatch on April
26. He arrived at the scene and waited for instructions from McCloud. Walzel identified the
driver of the vehicle as appellant. After McCloud pulled appellant from the car and handcuffed
him, Walzel walked around the car and observed two weapons in plain view. One weapon was
in the backseat, and one was in the backseat pocket of the passenger side. Both guns were
admitted as exhibits.
Walzel described one gun as a “Marksman BB gun” and demonstrated for the jury how to
load the gun. Walzel also referenced a safety on the gun and a globe site that tracks light and is
used on “most military weaponry, law enforcement weaponry, [and] any hunter’s weaponry.”
Walzel said the second gun is loaded “like a real handgun.” He said the gun was a military grade
“Witness 1911 BB gun.” He noted the gun had “all the same structure and everything as a real
gun,” including a “silver piece on the injector slide that makes it look like even more realistic.”
He said it “[l]ooks like a real gun,” and if he were confronted with that weapon, he would have
to use deadly force.
Walzel also addressed the circumstances of two cars traveling at a normal rate of speed
on a highway and one being fired at by a BB gun. He described the situation as posing a “deadly
experience.” Walzel testified, based on his experience, that BB guns can be deadly weapons and
cause serious bodily injury. Based on the facts presented in this case and what he had learned
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through his investigation, Walzel opined a BB gun could be a deadly weapon in the manner used
by appellant. On cross-examination, he agreed he did not know exactly what happened and
could not say appellant was the shooter.
The State’s final witness was appellant’s former girlfriend, Yitora Wilson, who was with
appellant in her father’s yellow Crown Victoria on the day of the shooting. She said appellant
was driving and she was reclined in her seat. She “got up” when she heard a horn blowing, and
they exited the highway. She testified that the next thing she knew, they got pulled over. She
did not know why they were being stopped until the officers separated them and referenced the
guns.
Wilson identified the two guns admitted as exhibits as the gun appellant had and the other
as one Wilson was “using.” She said they had taken the guns to the park where appellant was
trying to show her how to shoot. She described appellant’s gun as shooting “just like a regular
gun,” stating “you just pull the trigger,” and “it shoots pretty far and it has force.” She said the
other gun was hers and that it did not shoot far or have much force.
Wilson testified she and appellant were driving with the windows down on April 26 and
stated she would not have heard appellant fire his gun. She denied firing a gun into Barnes’s
truck and did not see appellant with a gun in his hand. No one else was in the car with them.
Wilson testified that when she heard the horn, she saw that appellant was “looking like he was
mad” and “flipped the dude off.”
The State rested after this testimony. Appellant did not testify and did not call any
witnesses.
The evidence shows appellant pointed the gun at Barnes while traveling at approximately
fifty-five miles per hour on a crowded highway. Appellant was mad and exhibited angry
behavior. Barnes testified appellant fired a gun in his direction and the shots hit the car in
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several locations. Both of the guns found in appellant’s vehicle looked “real” to the police
officers who examined the weapons. The jury also heard testimony that the BB gun identified as
appellant’s gun was capable of force. Walzel specifically testified he would have had to use
deadly force if he had been fired at with one of the guns. Walzel also addressed the
circumstance presented as posing a “deadly experience.” He testified BB guns can be deadly
weapons and can cause serious bodily injury.
Appellant argues that because Barnes did not “unequivocally say the gun was ever
trained on him,” all the evidence shows is the offense of criminal mischief. But it is not
necessary that the complainant be placed in fear of imminent bodily injury; it is the appellant’s
threat, made with the intent to place the complainant in fear of bodily injury that constitutes the
offense. Trevino v. State, 752 S.W.2d 735, 736–37 (Tex. App.—Eastland), pet. dism’d, 759
S.W.2d 142 (Tex. Crim. App. 1988). Such intent can be established through acts, words, and
conduct. Id. at 737. Barnes testified that when he honked his horn and slammed on his brakes to
avoid hitting appellant’s vehicle, appellant slowed down, got into the lane beside Barnes, and
pointed a gun in Barnes’s direction. Based on appellant’s conduct, Barnes thought appellant was
going to shoot him with what he thought was a pistol.
Considering all of the evidence in the light most favorable to the verdict, including
reasonable inferences, we conclude a rational fact finder could have found appellant intentionally
or knowingly threatened Barnes with imminent bodily injury while using or exhibiting a deadly
weapon. Jackson, 443 U.S. at 318-19; see also TEX. PENAL CODE ANN. §§ 22.01(a)(2),
22.02(a)(2). We overrule appellant’s first issue.
Issues Two and Three: Assumption of Guilt for Second Punishment Trial
We address appellant’s second and third issues together. He argues in his second issue
the charge to the second jury contained egregious error because it assumed appellant had been
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found guilty. In his third issue, he contends the trial court’s mistrial included the guilty verdict
and it was fundamental error for the second jury to assess punishment in the absence of a finding
of guilt.
After the first jury was unable to agree on punishment, the trial court declared a mistrial.
Appellant argues the mistrial was without any limitations. The State responds the trial court’s
authority to act was limited to those situations authorized by the constitution, statute, or common
law. It argues the trial court had no discretion to order a mistrial on appellant’s guilt once the
jury reached the verdict, citing article 37.07, section 3(c) of the code of criminal procedure. That
section provides:
If the jury finds the defendant guilty and the matter of punishment is referred to
the jury, the verdict shall not be complete until a jury verdict has been rendered on
both the guilt or innocence of the defendant and the amount of punishment. In the
event the jury shall fail to agree on the issue of punishment, a mistrial shall be
declared only in the punishment phase of the trial, the jury shall be discharged,
and no jeopardy shall attach. The court shall impanel another jury as soon as
practicable to determine the issue of punishment.
TEX. CODE CRIM. PROC. ANN. ART. 37.07, § 3(c) (West Supp. 2012). The trial court had no
discretion in following this provision—it is mandatory. See Ex parte Douthit, 232 S.W.3d 69, 72
(Tex. Crim. App. 2007) (noting most provisions in code of criminal procedure are mandatory
based on “shall” and “must” language). Accordingly, the trial court’s only authority was to grant
a mistrial as to punishment. We overrule appellant’s second and third issues.
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/Mary Murphy/
MARY MURPHY
Do Not Publish JUSTICE
TEX. R. APP. P. 47
110959F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMAL DESHUN APPLEWHITE, On Appeal from the Criminal District Court
Appellant No. 7, Dallas County, Texas
Trial Court Cause No. F11-00048-Y.
No. 05-11-00959-CR V. Opinion delivered by Justice Murphy.
Justices Lang-Miers and Fillmore
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of June, 2013.
/Mary Murphy/
MARY MURPHY
JUSTICE
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