Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00370-CR
Robert Michael RIDINGS,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 13, Bexar County, Texas
Trial Court No. 486449
The Honorable Crystal D. Chandler, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Irene Rios, Justice
Delivered and Filed: February 15, 2017
AFFIRMED
Robert Michael Ridings was convicted by a jury of deadly conduct. On appeal, Ridings
contends the evidence is insufficient to support his conviction. Ridings also contends the trial
court abused its discretion in admitting evidence that he was cursing, kicking, and lunging at the
responding police officers because: (1) the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice; (2) the evidence was not relevant; and (3) the
evidence was not admissible under rule 404(b) of the Texas Rules of Evidence. We affirm the
trial court’s judgment.
04-16-00370-CR
BACKGROUND
James Prendergast testified his stepsister, Jennifer Zerzeck, called him on March 22, 2005,
and told him Ridings was throwing her things into the yard. Zerzeck had been dating Ridings for
approximately one month. As Prendergast and his girlfriend, Julia Traywick, were driving towards
Ridings’s home, Zerzeck called again and said Ridings had pointed a gun at her and told her he
would shoot Prendergast and anyone else who came to his house. After Prendergast called 911,
Zerzeck called again and said she had gotten out of the house and was hiding. Each time Zerzeck
called, she spoke with both Prendergast and Traywick, and Prendergast and Traywick both testified
about the statements Zerzeck made.
When Prendergast and Traywick arrived, Prendergast parked down the street from
Ridings’s house and told Traywick to stay in the bushes. Prendergast was speaking with Zerzeck
on the phone when he saw a car pull up to Ridings’s house. Zerzeck told Prendergast the car
belonged to Ridings’s roommate Travis Orr. Prendergast testified Orr was halfway up the yard
towards the house when Ridings exited the house and pointed a gun with a tactical light and laser
at Travis’s chest while yelling police commands at him. Prendergast ran behind a tree in the
vicinity. Prendergast believed Ridings heard him because Ridings went back inside the house.
Prendergast called for Orr to come to him, and the two returned to Prendergast’s car where they
waited for the police to arrive. Traywick testified Orr told her Ridings had pointed a gun at his
chest.
The police were dispatched to Ridings’s home in response to a disturbance call and were
informed that Ridings wanted to have a standoff with the police. Upon arriving at Ridings’s house,
the police officers observed Ridings exiting his house. In response to the officers’ initial
commands, Ridings informed them he was locking his door. Ridings then responded to the
officers’ commands to put his hands in the air and lie down in the yard. Ridings told the officers
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he was in possession of a weapon, and the officers recovered a revolver from Ridings which was
admitted into evidence.
One of the officers spoke with Zerzeck and Orr. Orr informed the officer that Ridings
pointed a gun with a beam at his head and chest. The revolver recovered from Ridings did not
have a laser; however, Orr told the officer Ridings had more weapons inside the house, including
a weapon under the cushion of the couch and weapons in a gun safe in the bedroom.
Ridings was angry and uncooperative after he was placed in handcuffs. He was yelling,
cussing, and kicking his legs towards one of the officers. When the officers allowed Ridings to
stand up after he agreed to calm down, Ridings lunged at one of the officers, so another officer
forced him back to the ground.
After Ridings was arrested and taken from the scene, Prendergast accompanied Orr inside
the residence to retrieve Zerzeck’s belongings. Prendergast testified Orr showed him a bedroom
which contained additional firearms, including a pistol which Prendergast thought had a tactical
light. During trial, Prendergast was shown the revolver recovered from Ridings. Prendergast
testified the revolver did not contain any markings that would be present if the revolver had a
tactical light installed on it.
Zerzeck was the only witness called by the defense. She testified she was taking pain
medication and drinking on the night in question, and she was intoxicated. Although Zerzeck
admitted she told Prendergast that Ridings pointed a gun at her, she testified Ridings never actually
pointed a gun at her. Zerzeck identified defense exhibit one as the gun Ridings was holding. One
of the officers identified the gun as a training weapon which could not project bullets and testified
the gun had a light and laser. Zerzeck stated she knew Ridings had more guns but was not familiar
with all of his guns or how many he had.
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After hearing the foregoing testimony, the jury acquitted Ridings of deadly conduct with
regard to Zerzeck but found him guilty of deadly conduct with regard to Orr. Ridings appeals.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Ridings contends the evidence is legally insufficient to support his
conviction. Based on Zerzeck’s testimony identifying the training weapon as the gun Ridings
pointed at her and Prendergast’s testimony that the gun pointed at Orr had a tactical light and laser,
Ridings argues the gun he pointed at Orr was also necessarily the training weapon because it had
a tactical light and laser while the revolver recovered by the officers did not. Because the training
weapon was not a firearm, Ridings contends the evidence is legally insufficient to show he
committed the offense of deadly conduct.
When conducting a legal sufficiency review, we consider all of the evidence in the light
most favorable to the verdict to determine whether, based on the evidence and the reasonable
inferences therefrom, 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 (1979). “This familiar standard
gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.
When the record supports conflicting inferences, we presume the jury resolved the conflicts in
favor of its verdict and defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). “[A]n inference is a conclusion reached by considering other facts and deducing
a logical consequence from them.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
We determine whether the necessary inferences made by the jury are reasonable “based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to the
verdict.” Id. at 16–17.
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A person commits the offense of deadly conduct “if he recklessly engages in conduct that
places another in imminent danger of serious bodily injury.” TEX. PENAL CODE ANN. § 22.05(a)
(West 2011). “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.” Id. at
§ 22.05(c). The jury charge defined “firearm” as a device designed or made to expel a projectile
through a barrel. See id. at § 46.01(3) (West Supp. 2016). As previously noted, Ridings contends
the evidence is legally insufficient to prove that he pointed a “firearm” in Orr’s direction.
Although only two guns were admitted into evidence and only one of those guns, the
training gun, had a tactical light and laser, the jury could disbelieve Zerzeck’s testimony that the
training gun was the weapon Ridings was holding. Given the conflicts between Zerzeck’s trial
testimony and the statements she made to Prendergast and Traywick, the jury could have found
Zerzeck was not a credible witness. Alternatively, based on the testimony about the numerous
other firearms in Ridings’s possession, the jury could logically infer the gun pointed at Orr was a
firearm. Therefore, we hold the evidence is legally sufficient to support Ridings’s conviction.
Ridings’s first issue is overruled.
ADMISSIBILITY OF EVIDENCE
In his other three issues, Ridings contends the trial court abused its discretion in admitting
the officers’ testimony that he was cussing, kicking, and lunging at the responding officers.
Ridings contends the evidence was not relevant, was inadmissible under Rule 404(b), and its
probative value was outweighed by the danger of unfair prejudice. The State responds the evidence
was admissible to show Ridings’s state of mind and the context surrounding his arrest.
On appeal, we review a trial judge’s evidentiary rulings under an abuse of discretion
standard. Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016). Evidence is relevant if
it has any tendency to make a fact of consequence in determining the action more or less probable
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than it would be without the evidence. TEX. R. EVID. 401. Although Rule 404(b) prohibits the
admission of evidence of other wrongs or acts to prove a person’s character in order to show that
he acted in conformity therewith, such evidence is admissible for other purposes such as to show
consciousness of guilt and the circumstances surrounding an arrest. TEX. R. EVID. 404(b); see also
Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Finally,
under Rule 403, we consider the following factors: (1) the probative value of the evidence; (2) the
potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop
the evidence; and (4) the proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310,
324 (Tex. Crim. App. 2012). Rule 403 favors the admissibility of relevant evidence, and relevant
evidence is presumed to be more probative than prejudicial. Rayford v. State, 125 S.W.3d 521,
529 (Tex. Crim. App. 2003).
In this case, the proffered evidence was relevant and admissible under Rule 404(b) to show
Ridings’s state of mind and the circumstances surrounding his arrest. See Fletcher v. State, 852
S.W.2d 271, 277-78 (Tex. App.—Dallas 1993, pet. ref’d) (holding evidence that defendant
assumed a fighting stance when officers arrived was probative of his state of mind); Humber v.
State, 624 S.W.2d 814, 816 (Tex. App.—Houston [14th Dist.] 1981, no pet.) (holding state is
entitled to prove the circumstances surrounding an arrest). Because crimes do not occur in a
vacuum, the State is entitled to prove the circumstances surrounding an arrest even though they
may seem like irrelevant details. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972);
Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). A
defendant’s aggressive behavior during an arrest or resistance to an arrest is also admissible as an
indication of consciousness of guilt. See Butler v. State, 936 S.W.2d 453, 457-59 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d) (holding trial court did not abuse its discretion in admitting
evidence that appellant kicked out the door of the police car following his arrest because evidence
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was relevant to his state of mind and indicated a guilty knowledge of the offense). Ridings’s
aggressiveness during his arrest was consistent with the aggressive behavior in which he engaged
by pointing a gun at Orr and shouting commands at him, especially since Orr had simply arrived
at the house he shared with Ridings. See Cruz v. State, 04-96-00267-CR, 1997 WL 94165, at *2-
3 (Tex. App.—San Antonio Feb. 28, 1997, no pet.) (holding appellant’s belligerence, resistance,
and violent outburst upon being placed under arrest was consistent with his actions during the
robbery with which he was charged) (not designated for publication). Finally, having determined
the evidence is relevant and admissible for other purposes under Rule 404(b), we also hold the trial
court did not abuse its discretion in overruling Ridings’s Rule 403 objection because the testimony
spanned only a few pages of the record and did not have the potential to impress the jury in some
irrational, yet indelible, way. Accordingly, Ridings’s second, third, and fourth issues are
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
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