Christian Dale King v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 9, 2023
• Docket: 07-21-00164-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00164-CR

CHRISTIAN DALE KING, APPELLANT

V.

THE STATE OF TEXAS

On Appeal from the 47th District Court Randall County, Texas, Trial Court No. 30,917-A, Honorable Dan Schaap, Presiding

January 9, 2023 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Christian Dale King, was convicted by a jury of aggravated assault with

a deadly weapon and knowingly possessing a controlled substance, methamphetamine,

in an amount of one gram or more but less than four grams.1 Punishment was enhanced

1 See TEX. PENAL CODE ANN. § 22.02(a), (2) (second-degree felony); HEALTH & SAFETY CODE ANN. § 481.115 (c) (third-degree felony). Appellant does not appeal his conviction for drug possession. to two sentences of thirty years to run concurrently.2 On appeal, he asserts (1) the State’s

evidence was insufficient to convict him for aggravated assault with a deadly weapon,

and (2) the trial court abused its discretion by not admitting evidence of the complainant’s

prior criminal convictions. We affirm the judgment.

Background

In March 2021, an indictment was returned alleging that on or about November 27,

2020, Appellant intentionally, knowingly, or recklessly caused bodily injury to Henry Miles

by striking him with his hand while exhibiting a deadly weapon (a knife) that in the manner

of its use was capable of causing death and serious bodily injury to Miles. The indictment

also alleged Appellant intentionally and knowingly possessed a controlled substance

(methamphetamine) in an amount of one gram or more but less than four grams.

In July 2021, a two-day jury trial was held. Miles testified that in November 2020,

he was washing his clothes in the laundry of an Amarillo, Texas, motel, when he

temporarily left for his room. When he returned, he discovered Pegan Cook had removed

his laundry from the machine and loaded her clothes. Miles also discovered a pair of

jeans was missing. He gathered Cook’s laundry from a folding table, placed it in a bag,

and told Cook her laundry would be returned when she returned his jeans. An argument

ensued, and Cook left, threatening to return with her boyfriend.3

2 Two enhancement paragraphs alleged Appellant was finally convicted of two prior felonies,

burglary of a habitation and aggravated assault causing serious bodily injury. Appellant pled true to both enhancements.

3 Cook contends that Miles spit at her; Miles denies doing so.

2 Appellant ran to the laundry with Cook trailing behind. Miles observed Appellant

coming at him in an “attack position” with a dark “survival knife” containing a serrated

blade in his left hand. Appellant struck Miles twice in the mouth with his right fist, breaking

a dental plate and dislodging several false teeth; Miles’s inner lip was cut. He testified

that when Appellant approached him holding the knife, he felt threatened to be in

imminent danger of serious bodily injury or death. Miles said he did not attempt to defend

himself due to Appellant wielding the knife.

Before cross-examination, Appellant’s counsel advised the trial court he intended

to impeach Miles with two prior criminal convictions for armed robbery in 1991 and drug

possession in 2009. The State objected, and the trial court denied admission of the

convictions.

In addition to Miles’s testimony, Police Officer Austin Billstrom testified that he was

dispatched to the motel and encountered Appellant walking out of his motel room.

Appellant identified himself as “Jarad Matlock”; he admitted being involved in an incident

in the motel’s laundry but denied being in a fight. Billstrom discovered a fresh injury with

bright red, dried blood on Appellant’s knuckles.4 When Billstrom interviewed Cook, she

initially referred to Appellant as “Christian”; she later referred to Appellant as “Jarad” after

she learned he used that name when speaking to Officer Billstrom.

Officer Nathaniel Ham testified that after obtaining Appellant’s consent, he

conducted a pat-down and discovered a knife on Appellant. During transport to jail,

Appellant confessed to Ham that his real name was Christian King. Corrections Officer

4 Officer Enrique Gonzalez also testified he noticed Appellant’s knuckles showed recent lacerations.

3 Marcus Slough testified that during a jail search of Appellant, a Ziploc baggie containing

methamphetamine was recovered from Appellant’s pants.5

Cook testified that after she told Appellant of the encounter with Miles, Appellant

ran to the laundry. Cook also testified that she saw Appellant strike Miles with such force

that it caused Miles to spit teeth into his hand. Cook denied observing any weapon but

testified Appellant always carried the knife in his pants pocket.

Detective Brent Harlan, a former SWAT officer, testified that if he had been

approached in the manner described by Appellant, he would feel as though he were in

danger of imminent serious bodily injury or death. He described the knife found on

Appellant as “very dangerous” and capable of causing serious bodily injury and death.

Issue One

Appellant contends the State’s evidence was insufficient that he exhibited a deadly

weapon, which he contends is essential to the aggravated assault conviction. Appellant

relies on Cook’s testimony that she did not see Appellant threaten Miles with a knife, and

asserts Miles was unable to reliably identify the weapon. We overrule Appellant’s issue.

The standards we use for assessing the sufficiency of the evidence are well-

established. In evaluating the sufficiency of the evidence supporting a conviction, our inquiry is

whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the crime beyond a reasonable doubt. Alfaro-

Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019); Jackson v. Virginia, 443

5Jordan Allec, DPS forensic scientist, identified the substance tested as 3.19 grams of methamphetamine.

4 U.S. 307, 319 (1979). It is the role of the trier of fact to resolve conflicts in testimony,

weigh evidence, and draw reasonable inferences from that evidence. Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). The trier

of fact is the sole judge of the credibility of witnesses and the weight, if any, to be given

to their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality

op.). In a sufficiency review, “circumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13.

Aggravated assault has two components: an assault, coupled with an aggravating

factor. Edgar v. State, Nos. 07-18-00327-00328-00329-CR, 2020 Tex. App. LEXIS 687,

at *8–9 (Tex. App.—Amarillo Jan. 24, 2020, no pet.) (mem. op., not designated for

publication). To prove the aggravating factor, the State must prove assault by the

accused caused “serious bodily injury” or involved the use or exhibition of a deadly

weapon. See TEX. PENAL CODE ANN.§ 22.02(a)(1), (2). The State may satisfy the deadly

weapon element by proving the accused intentionally or knowingly threatened the

complainant with imminent bodily injury while using or exhibiting a deadly weapon; the

State is not required to prove the complainant was injured by the deadly weapon. See

Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). Testimony from lay or

expert witnesses may support a deadly weapon finding. Banargent v. State, 228 S.W.3d

393, 399 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

Even though Cook testified Appellant did not threaten Miles with the knife, our

standard of review requires that we assess the evidence and all inferences in the light

most favorable to the jury’s verdict and to resolve evidentiary conflicts in favor of the

5 verdict. As a part of its role in assessing the credibility of witnesses, the jury may accept

one witness’s version of the facts and reject another’s. Febus v. State, 542 S.W.3d 568,

572 (Tex. Crim. App. 2018). The jury was able to assess the credibility of Miles’s

testimony that Appellant carried a knife in “attack position” when he ran at Miles and

punched him twice in the mouth. It likewise could assess Cook’s denial. Miles’s

description of the knife matched photographs of a knife recovered from Appellant shortly

after the incident. Detective Harlan described the knife as “dangerous,” capable of

causing serious bodily injury and death. Miles testified he felt threatened and in imminent

danger of serious bodily injury or death at the sight of the knife. Detective Harlan similarly

testified he would feel in danger of imminent serious bodily injury or death if Appellant

had approached him in the manner described. Based on this evidence, as well as the

exhibits admitted at trial, the jury could reasonably infer a knife capable of causing serious

bodily injury or death was used by Appellant during the assault. We overrule Appellant’s

first issue.

Issue Two

Appellant also asserts the trial court abused its discretion by sustaining the State’s

objection to evidence he sought to introduce to impeach Miles.6 We review the trial court’s

decision to admit impeachment evidence under an abuse of discretion standard.

Chitwood v. State, 350 S.W.3d 746, 748–49 (Tex. App.—Amarillo 2011, no pet.) (citing

Irby v. State, 327 S.W.3d 138, 154 (Tex. Crim. App. 2010)). Appellant must establish that

6 Appellant also contends the trial court erred because it did not reference or explain whether it was

conducting a balancing test under Texas Rule of Evidence 609 when it made its ruling. When considering the probative effect of evidence versus its possible prejudicial effect, we may presume the trial judge conducted the Rule 609 balancing test, which need not be shown in the record. Chitwood v. State, 350 S.W.3d 746, 749 (Tex. App.—Amarillo 2011, no pet.).

6 the trial court’s refusal to admit the testimony is so clearly wrong that it falls outside the

zone of reasonable disagreement. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App.

2016).

Texas Rule of Evidence 609(a) allows the impeachment of a witness by evidence

of a prior conviction if the prior conviction was a felony or a crime of moral turpitude

regardless of punishment so long as the trial court determines the probative value of the

evidence outweighs the prejudicial effect. TEX. R. EVID. 609(a). The trial court has wide

discretion in ruling on the admissibility of a prior conviction. Theus v. State, 845 S.W.2d

874, 880–81 (Tex. Crim. App. 1992).7

We overrule Appellant’s complaint that Miles’s armed robbery conviction in 1991

should have been admitted because it is relevant to showing his propensity toward

violence in 2020. Because more than ten years had elapsed since Miles’s conviction or

release from confinement, it was incumbent on Appellant to show that the probative value

of the conviction substantially outweighs its prejudicial effect. TEX. R. EVID. 609(b).

However, Appellant failed to show how a nearly 30-year-old armed robbery conviction

shows Miles’s propensity toward violence. Moreover, whether Miles had a propensity

toward violence was irrelevant because there was no evidence Miles became violent

during his encounter with Appellant.

7 In considering whether the probative value outweighed its prejudicial effect, we review five

nonexclusive factors: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime to the charged offense and the witness’s subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. Theus, 845 S.W. 2d at 880.

7 We likewise overrule Appellant’s argument that the trial court erred in refusing to

admit evidence of Miles’s drug possession conviction. The record reflects that Miles

successfully completed probation in satisfaction of his sentence in 2009; there was no

evidence Miles has been convicted of any felony or crime involving moral turpitude since

then. Such evidence is therefore not admissible per TEX. R. EVID. 609(c); Valmana v.

State, 605 S.W.3d 490, 503 (Tex. App.—El Paso 2020, pet. ref’d). We cannot say the

trial court abused its discretion by denying Appellant an opportunity to put on evidence of

Miles’s two convictions. See Richard v. State, No. 01-89-00856-CR, 1990 Tex. App.

LEXIS 2082, at *12–13, 15 (Tex. App.—Houston [1st Dist.] 1990, no pet,) (where

conviction seventeen years old, no violation of federal and state constitutional rights to

confrontation and cross-examination when convictions excluded by trial court).8

Accordingly we overrule issue two.

Conclusion

Having overruled all issues on appeal, we affirm the trial court’s judgment.

Lawrence M. Doss Justice

Do not publish.

8 Appellant also asserts on appeal that his due process rights were violated by the exclusion of

Miles’s prior convictions. A review of the record indicates Appellant never put the trial court on notice of any due-process complaint; the issue was therefore forfeited. Clark v. State, 365 S.W.3d 333, 339–340 (Tex. Crim. App. 2012).