Brandon Perez v. the State of Texas

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-24-00078-CR

BRANDON PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 16th District Court Denton County, Texas Trial Court No. F22-3244-16

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

A Denton County jury convicted Brandon Perez of aggravated assault and assessed a

sentence of two years’ imprisonment. See TEX. PENAL CODE ANN. § 22.02 (Supp.). On appeal,

Perez argues that the evidence is legally insufficient to support the jury’s finding of guilt.1 He

also argues that the bill of costs contains a premature time payment fee and requires courts costs

to be paid immediately instead of on release from confinement.

We find that sufficient evidence supported the jury’s finding of Perez’s guilt. We also

agree with Perez, as does the State, that the time payment fee is premature and that court costs

are not currently due. As a result, we modify the bill of costs and affirm the trial court’s

judgment.

I. Legally Sufficient Evidence Supports the Jury’s Finding of Guilt

A. Standard of Review

“In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found the

crime’s essential elements beyond a reasonable doubt.” Mayfield v. State, 676 S.W.3d 244, 249

(Tex. App.—Fort Worth 2023, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017)). “This standard gives full play

to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Id. (citing Jackson, 443 U.S. at

1 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the precedent of the Second Court of Appeals in deciding the issues presented. See TEX. R. APP. P. 41.3. 2 319; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021)).2 “We determine whether

the necessary inferences are reasonable based on the evidence’s cumulative force when viewed

in the light most favorable to the verdict.” Id. (citing Braughton v. State, 569 S.W.3d 592, 608

(Tex. Crim. App. 2018)). “We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we must defer to that resolution.” Id. (citing Braughton,

569 S.W.3d at 608).

“To determine whether the State has met its burden to prove a defendant’s guilt beyond a

reasonable doubt, we compare the crime’s elements as defined by a hypothetically correct jury

charge to the evidence adduced at trial.” Id. (citing Hammack v. State, 622 S.W.3d 910, 914

(Tex. Crim. App. 2021)). “Such a charge is one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id. at 249–50 (citing Hammack, 622 S.W.3d at 914). “The law as authorized by the

indictment means the statutory elements of the offense as modified by the charging instrument’s

allegations.” Id. at 250 (citing Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021)).

A person commits assault if he “intentionally or knowingly threatens another with

imminent bodily injury.” TEX. PENAL CODE ANN. § 22.01(a)(2) (Supp.). The offense becomes

an aggravated assault if a “deadly weapon [is used] during the commission of the assault.” TEX.

PENAL CODE ANN. § 22.02(a)(2). Here, the State’s indictment alleged that Perez “intentionally

2 Perez also argues that the evidence is factually insufficient to support his conviction. However, “[t]he court of criminal appeals has held that there is no meaningful distinction between the legal sufficiency standard and the factual sufficiency standard.” Johnson v. State, 370 S.W.3d 100, 103 (Tex. App.—Fort Worth 2012, no pet.) (citing Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010) (plurality op.)). 3 or knowingly threaten[ed] Neil Osowsky with imminent bodily injury by pointing a firearm [in

his] direction.”

B. The Evidence at Trial

The evidence at trial established that this dispute was between neighbors living in the

Trophy Club subdivision. Neil and his wife, Kimberly Osowsky, lived next door to Sandra

Peterson, who had rented a portion of her home to Perez and his soon-to-be wife, Kaytlin

Robinson. By all accounts, the Trophy Club residents had positive neighborly interactions

before the March 2022 incident, and the evidence shows that Neil had hired Perez, who owned a

landscaping business, to complete yard work at his home. Even so, Kimberly testified that she

had a strange encounter with Perez when she began looking for contractors to repair a damaged

fence line on the boundary between her home and Peterson’s home.

According to Kimberly, Perez interrupted her consultation with a contractor by saying

that the Osowskys treated their contractors poorly and did not pay them. Kimberly was

embarrassed by the encounter and decided to confront Perez about why he had spoken to her and

the contractor in such a manner. Kimberly said Perez started to “bad mouth[]” Neil and told

Kimberly that she and her daughter should not be associated with him. Upset by that encounter,

Kimberly returned home alone and sent a text to Neil stating that Perez should not be allowed to

do their yard work anymore. After Neil returned home with his daughter, two different stories

emerged.

In the Osowskys’ version of events, Neil and his daughter went to Peterson’s home to

discuss the issue. Neil testified that he was carrying a concealed weapon when Robinson

4 answered the door, but never brandished the weapon. According to Neil and his daughter,

Robinson claimed that Peterson was not available to speak with them, and they returned home.

In Robinson’s account, Robinson said that she was cooking dinner when she heard Neil

aggressively pounding on the glass door. Robinson said Neil, while accompanied by his

daughter, was yelling, angry, and demanded to see Peterson, who had informed Robinson that

she wanted no part of the drama. According to Robinson, Neil had his nose pressed up to the

glass door and was holding a dark colored firearm with red lettering in his hand, which was

pointed at her abdomen. After saying that he would be back, Neil and his daughter left.

Robinson testified that she feared for her life and called Perez’s father, Antonio Perez,

who also lived in the Trophy Club subdivision, because Perez was driving to a jobsite. Antonio

testified that Robinson called him while in a “[v]ery frantic, terrified” state to report that Neil

had threatened her with a firearm and said that “he was going to kill” her and Perez. According

to Antonio, Robinson asked him to come over, which he did immediately. After Antonio said he

was on the way, Robinson called Perez to tell him what had happened.

Kimberly testified that Perez called Neil and told him to “get his fat butt outside.”

Robinson testified that Kimberly and Neil came back over to Peterson’s house after Perez’s call

and told Robinson that they were “going to make [her] pay” for calling Perez on them. Antonio

testified that, as he pulled up to Peterson’s residence, he saw Kimberly and Neil yelling at

Robinson outside of Peterson’s home.

Rosanne Lynn Sears, an officer with the Trophy Club Police Department (TCPD),

testified that Perez flagged her down while they were both driving, would not stop but continued

5 at a slow pace, and “mentioned something about the Osowskys, a gun, and his wife.” Sears

learned from the administrative assistant at the TCPD that Perez had called her, rather than

dispatch, but that Officer Cody Northcutt was en route to the scene per Sears’s request.

Julie Dorn, who had lived in the Trophy Club subdivision for a long time, testified that

she was walking her dog when she stopped to say hello to Neil and his daughter. Dorn noticed

that they were distracted and were looking down the street as if they were waiting for something.

According to Dorn, Perez’s truck pulled up, and the daughter asked her to stay because she

believed there was “going to be a fight.”

Antonio watched as Perez pulled up, got out of the truck, and started exchanging words

with Neil, whom he described as “very aggressive.” A short recording from Kimberly’s phone,

which was introduced to the jury, showed that Perez accused Neil of threatening to shoot him in

front of a contractor. Neil testified that he had no idea why Perez made that statement. The

short clip of the recording did not show that Perez had a weapon. It also showed that Neil was

coaxing Perez to fight.

Dorn testified that Perez and Neil started yelling at each other and that she saw Perez

point a gun towards Neil while saying, “I’m going to shoot you.” Neil testified that Perez

aggressively got out of his car, walked up to Robinson, pulled a small gun out of her purse, and

pointed it at him while cursing. Neil testified that he was in fear of imminent bodily injury.

Kimberly testified that Perez pointed a “little shiny silver gun” at Neil while walking across their

yard and yelling obscenities. According to Kimberly, their daughter witnessed the incident and

was hysterical and upset. The daughter confirmed Neil’s and Kimberly’s accounts and said

6 Perez aimed the gun at her father while walking towards him and cussing. According to Neil,

Perez knew Neil carried a weapon, but Neil, Kimberly, and Dorn testified that Neil did not take

his weapon out during the altercation.

While Antonio testified that he did not see a gun because he was focused on Neil’s

behavior, Robinson admitted that Perez had retrieved a gun from her purse. Even so, she said

that Perez held the gun in his left hand while making gestures with his right hand and never

pointed the gun in Neil’s direction. According to Robinson, Perez only had the gun out and

visible for five or ten seconds before putting it away in his waistband.

By the time officers appeared at the scene, Kimberly and Robinson had gotten in between

the men and had broken up the fight. Perez had retreated into Peterson’s home and according to

Sears, Kimberly and Neil told her Perez had drawn a weapon.

Joshua Hernandez, another officer with the TCPD, testified that Perez willingly came

outside when he knocked on the door. According to Hernandez, Perez and Robinson both denied

that Perez had a weapon. Hernandez said that Robinson appeared upset, and he learned that

firearms were used at both the Peterson residence and the Osowsky residence. After TCPD

spoke to all of the witnesses, Perez was arrested.

Jon Ciarletta, an officer with the TCPD, helped execute a search warrant for Peterson’s

home and removed a dark-colored purse with a gold chain from Robinson’s room. Ciarletta

testified that the purse had a magazine from a Ruger “small pocket pistol” with five rounds of

ammunition in it. Ciarletta said that the firearm was not found inside the home.

7 C. Analysis

Perez argues that the evidence is legally insufficient to support his conviction because the

recording from Kimberly’s phone did not show any weapon, and Robinson testified that she had

recorded the incident on her phone but that the TCPD never recovered it. The lack of

Robinson’s recording has no bearing on our analysis because “in a legal-sufficiency review, ‘the

question is not what evidence there isn’t[;] it’s what evidence there is.’” Mayfield, 676 S.W.3d

at 251 (alteration in original) (quoting Acosta v. State, 429 S.W.3d 621, 630 (Tex. Crim. App.

2014)).

In this case, evidence from Neil, Kimberly, their daughter, Dorn, and even Robinson

established that Perez held a firearm during his altercation with Neil. Although Robinson denied

that Perez had pointed the firearm in Neil’s direction, the jury was free to disbelieve her account.

Instead, the jury could have rationally relied on the testimony showing that Perez pointed the

firearm towards Neil. The jury could have rationally given the greatest weight to Dorn’s

testimony because she was a disinterested witness who testified that Perez said he was going to

shoot Neil while holding the weapon in Neil’s direction. See Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010) (plurality op.) (stating that “the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony”). Neil testified that he was in

fear of imminent bodily injury. Viewing this evidence in the light most favorable to the verdict,

we find that a rational jury could conclude that Perez intentionally threatened Neil with imminent

bodily injury by pointing a firearm, which is a deadly weapon per se, in his direction. See TEX.

PENAL CODE ANN. § 1.07(a)(17)(A) (Supp.).

8 Because legally sufficient evidence supports Perez’s conviction for aggravated assault,

we overrule Perez’s first point of error.

II. We Modify the Bill of Costs

The trial court’s judgment contains an order to pay court costs but does not specify the

amount. Instead, the judgment refers to the court’s bill of costs, which contains a $15.00 time

payment fee due if court costs are not paid within thirty days of the trial court’s signed judgment.

In his second point of error, Perez argues that the time payment fee is premature, and the State

concedes the issue. Accordingly, we sustain Perez’s second point of error and strike the time

payment fee “without prejudice to [it] being assessed later if[] more than 30 days” elapses

without payment of court costs after they become due. Dulin v. State, 620 S.W.3d 129, 133

(Tex. Crim. App. 2021).

In his last point of error, Perez notes that the judgment orders payment of court costs on

release of confinement but that the bill of costs orders immediate payment of court costs. The

State concedes that Perez’s court costs are not due until he is released from confinement and

requests that we modify the bill of costs to reflect that fact. See TEX. CODE CRIM. PROC. ANN.

art. 42.15(b)(2) (Supp.) (allowing the trial court to order payments of costs at a later date). As a

result, we sustain Perez’s last point and modify the bill of costs by including a statement showing

that court costs are not due until Perez is released from confinement.

9 III. Conclusion

After having modified the trial court’s bill of costs, we affirm the trial court’s judgment.

Scott E. Stevens Chief Justice

Date Submitted: March 5, 2025 Date Decided: March 7, 2025

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