In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00413-CR
FREDERICK JEROME ROBERTS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 11,907, Honorable Dan Mike Bird, Presiding
November 14, 2016
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Frederick Jerome Roberts of the offenses of
aggravated assault with a deadly weapon,1 evading arrest with a vehicle2 and unlawful
possession of a firearm,3 found an enhancement true, and assessed sentences of
1 TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). 2 TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2011). 3 TEX. PENAL CODE ANN. §46.04(a) (West 2011). imprisonment for 75 years, 20 years and 10 years respectively. Appellant has
appealed, and we will affirm.
Background
At trial, appellant plead not guilty and the State presented the testimony of
several witnesses. Appellant presented the testimony of Mikea Williams.
Kametria Daniels testified that late in the afternoon on a day in April 2014, she
was at a park in Vernon, Texas, with her son. Daniels was talking with two friends,
Shatara Scott and Darrell Straughter. While there, Daniels saw two people she knew
arrive at the park. The first was Daniels’ cousin, Williams; the second was Sport Fobbs.
Daniels watched Williams and Fobbs as they argued and fought. Both were bleeding
afterward. Scott testified she saw Williams hit Fobbs with a gun during their fight.
Williams testified she and Fobbs had an ongoing relationship. Fobbs testified
their relationship was sexual, and had been “off and on” for “about nine or ten years.”
Williams testified she was also in a relationship with appellant and the couple
lived together. Both Fobbs and Williams testified that Fobbs had a confrontation with
appellant earlier in the day. Williams agreed to meet with Fobbs to talk about it. They
met at the park.
Williams arrived at the park in her Trailblazer. Williams and Fobbs both admitted
they fought and that both suffered injuries. Fobbs testified Williams pointed a gun at his
face and threatened him. Fobbs “slapped the gun away from [his] face” and it hit
Williams in the mouth. He also “swung at her.” Williams “smacked [him] with the pistol
2 in [his] face,” causing a cut that required stitches. While Williams denied pointing a gun
at Fobbs, she admitted she had a dark gray or black revolver in her car and that she
had “showed [Fobbs] the gun.” She also admitted she hit Fobbs in the head with the
gun during their fight.4
After Fobbs and Williams quit fighting, Williams left the park and went home
where she told appellant about her fight with Fobbs. Appellant “left. He was storming
out the door. I jumped in the car with him.” A few minutes later, she returned to the
park with appellant driving her vehicle. Williams told the jury she saw Straughter “pass
[Fobbs] a gun” that she described as a black gun with a “clip in it.” Fobbs denied having
a gun. Fobbs testified he saw appellant and Williams arrive at the park in Williams’ car
and he thought appellant wanted to fight. But, in appellant’s hand Fobbs saw “a pistol
and he pointed it right [at] me, and then he started shooting the gun.” Fobbs testified
the gun shown to him by the prosecutor looked like the gun appellant had that day. 5
Daniels testified she saw appellant jump out of the vehicle and he “started shooting” at
Fobbs. She thought she heard six shots. She described the gun as “a small gun.” She
said she did not see Fobbs with a gun. Scott testified appellant “immediately started
shooting” toward Fobbs after he got out of the Trailblazer.
Williams testified she did not see appellant with a gun and she had removed her
gun from her car when she went home. She testified the gun shown to her at trial was
4 At the time of appellant’s trial, Williams was incarcerated for aggravated assault with a deadly weapon against Fobbs. 5 But another witness, Ben McBride, testified he had seen Williams with a gun at his bar earlier that day. He did not “think that was the same gun” when shown the State’s exhibit at trial.
3 not her gun.6 But she acknowledged it was possible appellant had a gun. Several
witnesses, including Fobbs, Daniels, Straughter, Scott and McBride testified appellant
shot at Fobbs. Fobbs tried to get in Daniels’ car but when she told him her child was in
the car, he ran and jumped over a fence. He told the jury, “I was terrified. I thought I
was going to die. I just didn't know what was going to happen.”
Williams testified that when she heard shots, she went toward Daniels’ car but
then went back to her car and got in the back seat. Appellant got into the car and they
began to drive off. Williams saw another woman and got out of the car to argue with her
about another matter. Appellant told Williams to get back in the car and the couple
drove away.
Sergeant Wayne Hodges of the Vernon Police Department responded to the
incident at the park. When he arrived, he saw a Trailblazer leaving “at a high rate of
speed.” He followed the vehicle for several blocks until it stopped and the driver jumped
out and ran. Hodges lost sight of the driver so he got out of his car and ran until he saw
the Vernon Chief of Police and Sergeant Wendell Smith with a person on the ground.
The patrol car videos from Hodges’ and Smith’s cars were admitted into evidence.
Detective Mickey Allen testified he found a black revolver in front of the outside of the
vehicle. No fingerprints could be obtained from the gun and no gunshot residue was
found on appellant’s hands.
Williams’ testimony also described what she referred to as “the chase.” She said
she ducked her head because she was bouncing to the vehicle’s roof as they sped
6 She did say, “if that’s the same gun, that could have been a gun [appellant] threw out the back door” of their home on an earlier occasion.
4 through intersections and when she looked up, appellant was no longer in the vehicle.
She “could see him running.” The vehicle came to a stop, she got out, and “waited for
the police to come up.”
At the close of the evidence, appellant requested the trial court to include in its
charge to the jury an instruction regarding self-defense. The trial court denied the
request.
Analysis
Through four points of error, appellant contends the evidence presented at trial
was insufficient to prove: (1) he intentionally threatened Fobbs with bodily injury by firing
a weapon at him; (2) that he intentionally fled from a peace officer attempting to lawfully
arrest him; and (3) that he intentionally or knowingly possessed a firearm before the fifth
anniversary of his release from confinement. Further, appellant contends he was
denied his right to a fair trial when the trial court refused to charge the jury on self-
defense.
To convict appellant of aggravated assault, the State was required to prove
beyond a reasonable doubt that he intentionally or knowingly threatened another with
imminent bodily injury while using or exhibiting a deadly weapon. TEX. PENAL CODE
ANN. § 22.02(a)(2) (West 2011). A deadly weapon includes “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West 2011).
To convict him of evading arrest or detention using a vehicle, the State had to
prove beyond a reasonable doubt that appellant intentionally fled from a person he
5 knows is a peace officer attempting lawfully to arrest or detain him and that he used a
vehicle to do so. TEX. PENAL CODE ANN. § 38.04(a),(b) (West 2011).
To convict appellant of unlawful possession of a firearm by a felon, the State was
required to prove that appellant, having been previously convicted of a felony,
possessed a firearm before the fifth anniversary of his release from confinement. TEX.
PENAL CODE ANN. § 46.04(a)(1) (West 2011).
Appellant contends the evidence raised an issue of self-defense. It is a defense
to prosecution if a person’s conduct is justified by Chapter 9 of the Texas Penal Code.
TEX. PENAL CODE ANN. § 9.02 (West 2011). Under Chapter 9, a person generally is
justified in using force against another when and to the degree he reasonably believes
the force is immediately necessary to protect himself against another’s use or attempted
use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a). When the force in question is
deadly, the person is justified in using such force in self-defense if the above test is met
and the person reasonably believes that deadly force is immediately necessary either to
protect himself against the other’s use or attempted use of unlawful deadly force.
The defendant has the initial burden of production and must bring forth some
evidence to support the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003); Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). Once the evidence is produced, the State bears the burden of
persuasion to disprove the defense. Id. This burden does not require the production of
additional evidence rebutting self-defense; it requires the State to prove its case beyond
a reasonable doubt. Id. When the trier of fact finds the defendant guilty, there is an
6 implicit finding rejecting the defendant’s self-defense theory. Saxton v. State, 804
S.W.2d 910, 914 (Tex. Crim. App. 1991); Hernandez, 309 S.W.3d at 665.
When an appellant challenges the legal sufficiency of the evidence to support
rejection of a defense such as self-defense, the question is not “whether the State
presented evidence which refuted appellant’s self-defense [evidence].” Saxton, 804
S.W.2d at 914. Rather, we examine all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found beyond a
reasonable doubt (1) the essential elements of the alleged offenses, and (2) against
appellant on the self-defense issue. Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex.
Crim. App. 2010); Saxton, 804 S.W.2d at 914; Hernandez, 309 S.W.3d at 665. The jury
is the sole judge of the credibility of the witnesses and the weight to be given their
testimony; accordingly, we presume the trier of fact resolved any conflicting inferences
and issues of credibility in favor of the judgment. Dearborn v. State, 420 S.W.3d 366,
371-373 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The trier of fact is free to
accept or reject defensive evidence on the issue of self-defense. Saxton, 804 S.W.2d at
914. In reviewing the sufficiency of the evidence to support a conviction, we utilize the
“hypothetically correct jury charge” standard, which includes the statutory elements of
the offense as modified by the charging instrument. Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997).
As noted, aggravated assault occurs when a person uses a deadly weapon to
intentionally or knowingly threaten another with imminent bodily injury. TEX. PENAL
CODE ANN. §§ 22.01(a)(2); 22.02(a)(2). Several witnesses testified they saw appellant
shoot at Fobbs. Straughter testified appellant shot at Fobbs at close range multiple
7 times. He also told the jury appellant got out of the Trailblazer, said “do you think I’m
playing with you, I’ll kill you” and started shooting. Straughter testified he saw appellant
pull the trigger and appellant was “running towards [Fobbs].” Evidence showed a
revolver was found on the ground in front of the Trailblazer appellant drove from the
park. Appellant did not have gun residue on his hands and the evidence did not
establish whether the revolver was recently fired.
Appellant contends the evidence fails to show he shot at Fobbs. He says the
conflicting evidence shows at most that he shot in Fobbs’ direction, an action perhaps
amounting to recklessness, but not showing the intentional or knowing conduct required
for conviction.
We disagree with appellant’s view of the evidence. We conclude a rational trier
of fact could have accepted the testimony of multiple witnesses that appellant was the
person with the gun and the person who shot at Fobbs. Fobbs testified he and
appellant had a confrontation earlier in the day and he believed appellant wanted to
fight him. Williams testified she was seeing both men at the same time and Fobbs
testified appellant was aware of that infidelity. Williams also testified she left the park
and went home where she told appellant about the fight with Fobbs. Appellant “left. He
was storming out the door.” Straughter testified to appellant’s threats to kill Fobbs just
before he began firing the gun. Keeping in mind the jury’s role to resolve conflicting
inferences in evidence, we readily find the evidence sufficient to permit a rational juror
to conclude beyond reasonable doubt appellant intentionally or knowingly used a
firearm to threaten Fobbs with imminent bodily injury.
8 We also conclude a rational trier of fact could have found beyond reasonable
doubt appellant shot at Fobbs and was not justified in doing so to protect himself
against any use or attempted use of unlawful deadly force by Fobbs. Contrary to the
testimony of several witnesses, Williams was the only witness who said a man handed
a gun to Fobbs and was the only witness who said appellant did not shoot or have a
gun. Williams did not tell police Fobbs had a gun. McBride specifically testified Fobbs
“didn’t have one” when asked whether he ever saw Fobbs with a gun.
Viewing the evidence in the light most favorable to the verdict, we conclude that
a rational trier of fact could have found appellant guilty of aggravated assault beyond a
reasonable doubt by choosing to believe the evidence favoring conviction and by
choosing to disbelieve any evidence favoring self-defense. Smith v. State, 352 S.W.3d
55, 63 (Tex. App.—Fort Worth 2011, no pet.); see also Dearborn, 420 S.W.3d at 374.
And, the trial court did not err in refusing to include in the jury charge an
instruction addressing self-defense. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.
1999). A defendant is entitled to an affirmative defensive instruction on every issue
raised by the evidence without regard to the strength or credibility of the evidence
raising it. Granger, 3 S.W.3d at 38; Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim.
App. 1997). “To rely on self-defense as a justification for his conduct, the defendant
must first admit or substantially admit committing the conduct which forms the basis of
the indictment; the defense is inconsistent with a denial of conduct.” Reynolds v. State,
No. 07-11-00500-CR, 2012 Tex. App. LEXIS 10501, at * 6-7 (Tex. App.—Amarillo Dec.
19, 2012, no pet.) (mem. op., not designated for publication). A defendant does not
have to testify in order to raise the defense; defensive issues may be raised by the
9 testimony of any witness, even those called by the State. Id. at *7 (citations omitted).
When reviewing a trial court’s decision to deny a requested defensive instruction, “we
view the evidence in the light most favorable to the defendant’s requested submission.”
Id. (citations omitted). However, “if the evidence, viewed in the light most favorable to
the defendant, does not establish self-defense, the defendant is not entitled to an
instruction on the issue.” Id. at *7-8.
Like Reynolds, appellant here maintains the evidence presented at trial raised
the issue of self-defense, entitling him to an instruction to the jury on that issue. We
disagree. Appellant points to the evidence Williams and Fobbs fought, and to Williams’
testimony she saw Straughter pass a gun to Fobbs before Williams heard gunshots; she
did not see who was firing the shots; she did not see appellant with a gun; there was not
a gun in the vehicle when they drove away from the park; appellant did not throw a gun
from the vehicle, and she told a Vernon detective that Fobbs had a gun at the park
when shots were fired. Williams also said appellant responded “they're trying to kill me”
when she asked, during “the chase,” why he was running from the police.
Williams’ testimony provides the only possible evidence supporting a self-
defense instruction. And absent from her testimony is any admission appellant fired
shots in Fobbs’ direction, or otherwise made any use of a firearm. See, e.g., Martinez v.
State, 775 S.W.2d 645, 645 (Tex. Crim. App. 1989) (defendant charged with murder
admitted to pulling gun, firing into the air and having his finger on the trigger when fatal
shot fired; denial of intent to kill did not preclude instruction on self-defense); East v.
State, 76 S.W.3d 736, 738 (Tex. App.—Waco 2002, no pet.) (quoting Martinez).
Appellant did not, at trial, “substantially admit committing the conduct which forms the
10 basis of the indictment.” Reynolds, 2012 Tex. App. LEXIS 10501 at *6.7 Accordingly,
appellant was not entitled to the instruction at trial and the trial court did not err in
refusing it.
We overrule appellant’s first and fourth points of error.
We turn next to appellant’s challenge to the sufficiency of the evidence
supporting his conviction for unlawful possession of a firearm. The record shows
appellant was previously convicted for a felony in December 2010 and confined for the
offense for a period of two years. Too, we have determined that sufficient evidence
supports appellant’s aggravated assault with a firearm on April 8, 2014, a date less than
five years after his release. Also, Williams testified appellant had guns in their home
and that appellant repaired guns for others on occasion. Accordingly, a rational fact-
finder could have found beyond a reasonable doubt that appellant committed the
offense of unlawful possession of a firearm. We overrule appellant’s third point of error.
Lastly, we consider appellant’s contention the evidence was insufficient to prove
he intentionally fled in a vehicle from a person he knew was a peace officer attempting
lawfully to arrest or detain him. He compares the events shown by this record with
those in Redwine v. State, 305 S.W.3d 360 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d), in which the appellate court found the evidence insufficient to show Redwine
knew peace officers were attempting to arrest or detain him. Like appellant, Redwine
7 As noted in our discussion of appellant’s challenge to the sufficiency of the evidence supporting his conviction for the assault on Fobbs, on appeal appellant acknowledges the evidence might show he shot recklessly in Fobbs’ direction, but he made no such concession in front of the jury.
11 was charged with the provision of Penal Code section 38.04 requiring proof he used a
vehicle in his flight from a peace officer. Id. at 362. The evidence there showed
Redwine was driving on a rural asphalt road when he met a sheriff’s office patrol car
coming from the opposite direction. Redwine continued down the road and then turned
onto a dirt driveway. Although the deputies turned their vehicle around and began to
pursue Redwine, they did not turn on their emergency lights or siren. By the time the
deputies reached the end of the dirt driveway where Redwine’s truck was sitting, he had
left the vehicle and run into the forest. The deputies then began to shout to Redwine,
who eventually returned to his truck and was arrested. Id. at 362. After analyzing the
specifics of the evidence, the court concluded it was not sufficient to prove beyond
reasonable doubt that Redwine, while in his truck, knew the deputies were attempting to
arrest or detain him. Id. at 368. Appellant likewise contends there was no evidence he
knew Sergeant Hodges was attempting to arrest or detain him while appellant was
driving the Trailblazer. He asserts Hodges made no “show of authority” until after
appellant got out of the vehicle.
The facts shown here are very different from those in Redwine. 305 S.W.3d at
361-62; see also Griego v. State, 345 S.W.3d 742, 750-52 (Tex. App.—Amarillo 2011,
no pet.) (discussing Redwine). Evidence shows that appellant was driving the
Trailblazer from the park when Sergeant Hodges began his pursuit in a marked patrol
car. Hodges testified he pulled “right behind” the Trailblazer and “hit [his] lights and
sirens at the same time.” The patrol car video shows the officer’s lights and sirens were
on. Hodges’ testimony also showed that appellant sped up at that point and that his
flight in the vehicle included violation of a stop sign at a high-traffic intersection and
12 ended when appellant pulled to the side of the road, bolted and ran. Williams testified
that as appellant drove from the park, a police vehicle drove toward them, “whipped
around and turned his lights on.” She said appellant “started to speed up.” During “the
chase,” appellant drove “[a]bout four blocks” after the officer turned his patrol car lights
on, she was “yelling at appellant to stop,” and appellant left the driver’s seat and ran
while the vehicle was still moving. Particularly in view of the evidence of the shooting
that immediately preceded appellant’s flight, the jury was not acting irrationally to
conclude appellant was aware that the officers who were behind him with lights and
sirens were attempting to arrest or detain him. See, e.g., Reyes v. State, 465 S.W.3d
801, 805-06 (Tex. App.—Eastland 2015, pet. ref’d).
The evidence was sufficient to establish appellant’s guilt of the evading offense.
His second point of error is overruled.
Conclusion
Having resolved each of appellant’s four points of error against him, we affirm the
judgment of the trial court.
James T. Campbell Justice
Pirtle, J., concurs in the result.
Do not publish.