COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00386-CR
ANTHONY GERALD DANKO A/K/A APPELLANT
ANTHONY DANKO
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Anthony Gerald Danko a/k/a Anthony Danko appeals his
convictions for three counts of aggravated assault on a public servant with a
deadly weapon, to wit: a firearm. In three issues, Danko argues that the
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See Tex. R. App. P. 47.4.
evidence is insufficient to sustain his conviction and that the prosecutor engaged
in improper argument during the State‘s closing argument. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Danko was going through a divorce. He sent his sister a disturbing text
message suggesting that he was contemplating suicide. She went to his home
to check on him, but he would not answer the door or his phone. Fearing the
worst, she called 911. The Fort Worth fire department was dispatched to
Danko‘s home regarding an attempted suicide. Four firefighters arrived at
Danko‘s home at around 9:00 p.m.; all the lights in the house were off and
Danko‘s car was not in the driveway, but Danko‘s sister insisted that he was
inside the house. She told Fort Worth Fire Department Lieutenant Mark Keller
that Danko owned a gun.
Fort Worth Police Officers Craig Thomas, Julio Argueta, and John David
Riggall arrived shortly and knocked on Danko‘s door, identifying themselves as
Fort Worth police officers. When no one answered, they used flashlights to look
into the windows of the house to determine if anyone was inside. They did not
see anyone inside the house. Officer Thomas called his supervisor and received
permission to force entry into Danko‘s house. Officer Argueta volunteered to kick
in the door, but after two unsuccessful attempts, the men decided to use a
sledgehammer. The four firefighters and the three police officers stood outside
the front door, the police officers drew their weapons and shouted, ―[P]olice,‖ and
one firefighter, Daniel Terrell, struck the door nine or ten times with a
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sledgehammer before the lock gave way. When the door swung open, Danko
was standing in the entranceway; he was holding a drinking glass in one hand
and a revolver in the other. He was holding the revolver down to his side, with it
pointed to the floor. The police officers began yelling for him to ―drop the gun,
drop the gun.‖ Instead, Danko raised the gun toward the officers and the
firefighters, and Officer Thomas responded by raising his own gun. Afraid that
Danko would pull the trigger, Officer Thomas fired his gun at Danko four times,
until Danko dropped to the ground. Danko was shot in the hand and the chest,
but he survived.
Fort Worth Officer Lori Scheiern, who works the crime scene search unit,
and Dorsa Meter, who is the range master for the Fort Worth Police Department,
inspected Danko‘s gun and determined that it was fully loaded and that one of
the bullets from Officer Thomas‘s gun hit the barrel of Danko‘s gun and entered
the chamber of that gun. Officer Scheiern concluded that, based on the damage
to Danko‘s gun, both guns were pointed directly at each other when the bullet
from Officer Thomas‘s gun struck Danko‘s gun.
Danko was charged with three counts of aggravated assault on a public
servant, one for each of the three officers involved. The jury convicted him of
each count and assessed his punishment at five years‘ imprisonment for the first
count and at ten years‘ imprisonment for the second and third counts; the jury
recommended that the ten-year sentences for counts two and three be
suspended and that Danko be placed on community supervision. The trial court
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sentenced Danko accordingly, ordering that the ten-year sentences in counts two
and three be suspended for ten years.
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Danko argues that the evidence is factually insufficiency
to support his conviction. After Danko filed his brief but before oral argument in
this court, the court of criminal appeals handed down its decision in Brooks v.
State, holding that there is no meaningful distinction between the factual
sufficiency standard and the legal sufficiency standard. See 323 S.W.3d 893,
902 (Tex. Crim. App. 2010). During oral argument, Danko‘s appellate counsel
stated that Brooks ―foreclosed‖ Danko‘s factual sufficiency complaint, and he
requested that we not address his first issue. [oral] Consequently, we overrule
Danko‘s first issue.
In his third issue, Danko argues that the evidence is legally insufficient to
sustain his conviction for aggravated assault on Officer Argueta, a public servant,
because no evidence showed that the officer perceived a threat.
A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
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This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 2075 (2009). 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 factfinder. Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead,
we Adetermine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.
2007). We must presume that the factfinder resolved any conflicting inferences
in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326,
99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. The standard of review is the
same for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor. Clayton, 235
S.W.3d at 778; Hooper, 214 S.W.3d at 13.
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B. Law on Aggravated Assault on a Public Servant
A person commits the offense of aggravated assault on a public servant
with a deadly weapon if he (1) intentionally or knowingly (2) threatens a person
(3) that the actor knows to be a public servant (4) with imminent bodily injury (5)
while the public servant is lawfully discharging an official duty and (6) employs a
deadly weapon in the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2),
22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2010).
―‗The display of a deadly weapon of and within itself constitutes a threat of
the required imminent harm.‘‖ Sosa v. State, 177 S.W.3d 227, 231 (Tex. App.—
Houston [1st Dist.] 2005, no pet.) (quoting Robinson v. State, 596 S.W.2d 130,
133 n.7 (Tex. Crim. App. 1980)); cf. Peterson v. State, 574 S.W.2d 90, 92 (Tex.
Crim. App. [Panel Op.] 1978) (holding that ―implicit in the allegation that a ‗Deadly
Weapon‘ was used to threaten the complainant is the possibility that the
complainant was threatened with death as well as bodily injury‖).
C. Sufficient Evidence of Threat
Officers Riggall and Thomas, the complainants named in counts one and
three of the indictment, both testified at trial, but Officer Argueta was unavailable
to testify. Consequently, Danko argues that the evidence is insufficient to sustain
his conviction for aggravated assault on Officer Argueta (count two) because no
evidence shows that Officer Argueta ―saw Mr. Danko‘s gun or that he ever
perceived a threat.‖
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The testimony at trial established that Officers Riggall, Thomas, and
Argueta, in addition to four firefighters, were all standing in close proximity to
Danko‘s front door when Terrell broke down the door, that Danko was standing
just inside the entrance and facing the door when the door swung open, and that
he raised his gun and pointed it directly at the firefighters and police officers.
Officer Thomas testified that Officer Riggall and Officer Argueta were standing a
little in front of him and to the left when the door swung open and that the three
officers ―kind of made a semicircle‖ around two of the firefighters. Officer Riggall
and Officer Thomas both testified that they saw Danko raise and point his gun at
them and that they felt threatened by that action. Lieutenant Keller testified that
Danko raised the gun ―point blank‖ toward the officers and firefighters and that he
immediately thought, ―One of us is going to get shot right now . . . .‖ Terrell
testified that Danko pointed his gun ―directly at me and the three officers that
were standing to my immediate right,‖ that all of the officers and the firefighters
were ―within a few feet of a gun pointed at us,‖ and that he thought he was going
to get shot. And significantly, Officer Riggall recalled hearing Officer Argueta yell
at Danko to ―drop the gun‖ when Danko raised the gun, and Officer Riggall
testified that he believed Officer Argueta saw the gun before he did.
This testimony establishes not only that Danko pointed a gun at the
officers and firefighters but also that Officer Argueta saw the gun; Danko‘s
display of a gun was sufficient to establish the required threat of imminent bodily
harm. See Robinson, 596 S.W.2d at 133 n.7; Sosa, 177 S.W.3d at 231 (holding
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sufficient evidence of threat when two eyewitnesses, but not victim, testified that
defendant held gun in his hands, demanded money, and walked in and out of
bedroom where victim was laying on the floor); Villatoro v. State, 897 S.W.2d
943, 945 (Tex. App.—Amarillo 1995, pet. ref‘d) (―Since firearms are deadly
weapons, . . . the testimony revealing that Appellant pointed such a weapon at
Jones was enough to support his conviction beyond reasonable doubt.‖ (citation
omitted)). Viewing the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt
that Danko committed aggravated assault on Officer Argueta, a public servant.
See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B); Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we
overrule Danko‘s third issue.
IV. IMPROPER JURY ARGUMENT
In his second issue, Danko argues that the State‘s closing arguments
during the guilt/innocence stage of trial improperly urged the jury to convict him of
aggravated assault so it could assess a greater punishment than the punishment
available if the jury found him guilty of the lesser offense of deadly conduct. The
trial court‘s charge to the jury included instructions on the lesser offense of
deadly conduct. During the State‘s closing argument, the first prosecutor argued:
[Prosecutor]: Now, with regard to the charge, what you have
here is three counts of aggravated assault on a public servant, and
in each one of those three counts, you have a lesser offense, a
lesser misdemeanor offense of deadly conduct.
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[Defense Counsel]: I object to the characterization that it‘s a
lesser misdemeanor offense. That‘s improper, and I object.
THE COURT: Sustained.
[Defense Counsel]: And I ask for an instruction to disregard.
THE COURT: Well, you know that you are not to consider
anything that‘s sustained.
[Defense Counsel]: Move for a mistrial.
THE COURT: Denied.
[Prosecutor]: You have a lesser offense of deadly conduct.
[Defense Counsel]: I object. I object, the repeated
characterization of ―lesser‖ –
THE COURT: Overruled.
At the end of the State‘s rebuttal closing argument, the second prosecutor
argued, ―And Lieutenant Keller, I think from this witness stand, sums up what
was going through those seven individuals‘ minds, and this will tell you why it‘s
not just deadly conduct. Deadly conduct sounds bad in the charge, but it‘s not
nearly as bad as aggravated assault.‖ Defense counsel objected, arguing that
the trial court had previously sustained his objection to the same argument by the
first prosecutor, and the trial court overruled the objection.
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A. Standard of Review
To be permissible, the State‘s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.
App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d
230, 231 (Tex. Crim. App. 1973).
When a trial court sustains an objection and instructs the jury to disregard
but denies a defendant‘s motion for a mistrial, the issue is whether the trial court
abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72,
76–77 (Tex. Crim. App. 2004). Only in extreme circumstances, when the
prejudice caused by the improper argument is incurable, i.e., ―so prejudicial that
expenditure of further time and expense would be wasteful and futile,‖ will a
mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.
Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).
B. Argument Not Improper
Danko argues that the Texas Court of Criminal Appeals‘s decision in
McClure v. State is ―on ‗all fours‘ with this case.‖ See 544 S.W.2d 390, 393–394
(Tex. Crim. App. 1976). In McClure, the court of criminal appeals reversed and
remanded a conviction based on the prosecutor‘s repeated argument that the
jury should convict the defendant of murder because it had a greater punishment
range than that available for manslaughter. Id. at 393–95. The court of criminal
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appeals held that the argument was improper because it ―was a plea to the jury
to consider the amount of punishment, rather than the facts, in determining the
offense for which appellant should be convicted.‖ Id. at 395.
Here, unlike in McClure, the complained-of arguments—that deadly
conduct is a lesser misdemeanor offense and is not as bad as aggravated
assault—did not urge the jury to convict Danko based on a punishment range
instead of the facts. The complained-of comments are more analogous to the
prosecutor‘s argument in Hart v. State, in which the prosecutor informed the jury
that one of the lesser included offenses was a misdemeanor. See 581 S.W.2d
675, 678–79 (Tex. Crim. App. [Panel Op.] 1979). In Hart, the court of criminal
appeals held that the prosecutor‘s argument was proper and explained that ―[t]he
harm is not in informing the jury concerning punishment, but argument for
conviction based on punishment.‖ See id. (distinguishing McClure).
In Danko‘s case, the first prosecutor mentioned the classification of the
deadly conduct offense in the context of explaining how to read the charge. She
explained that ―the way it works‖ is that the jury must first determine whether the
State proved beyond a reasonable doubt that Danko committed aggravated
assault on a public servant and, if not, ―move to the next part, which is deadly
conduct.‖ The prosecutor argued that the facts of the case show that Danko
committed aggravated assault on a public servant, rather than deadly conduct,
and she urged the jury to read the charge in its entirety and apply the law to the
facts. The second prosecutor built onto the first prosecutor‘s argument and
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explained why the facts of the case showed that Danko had committed the
greater offense of aggravated assault. The prosecutors did not comment on the
punishment assigned to the offenses, did not refer to the classification for the
greater aggravated assault offense, and did not argue that certain convictions
would carry heavier sentences. See id.; see also Matini v. State, No. 05-03-
00686-CR, 2004 WL 1089197, at *6 (Tex. App.—Dallas May 17, 2004, no pet.)
(not designated for publication) (distinguishing McClure because State‘s
comment—―This is not a misdemeanor trespass. This is a burglary of a
habitation.‖—did not refer to any differences in the range of punishment);
McCullen v. State, 659 S.W.2d 455, 459 (Tex. App.—Dallas 1983, no pet.)
(holding argument that informed jury of different ranges of punishment for
aggravated robbery and aggravated assault not improper when made in the
course of explaining why facts showed defendant committed the greater offense).
In reviewing the record and in considering the arguments from the
viewpoint of the jury, we do not conclude that the prosecutors‘ arguments urged
the jury to convict Danko of one offense over another because of the difference
in punishment. See Hart, 581 S.W.2d at 678–69. Consequently, we hold that
the State‘s comments were proper, and we overrule Danko‘s second issue.
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V. CONCLUSION
Having overruled Danko‘s three issues, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 20, 2011
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