In re L.D.C.

357 S.W.3d 124, 2011 Tex. App. LEXIS 8708, 2011 WL 5190667
CourtCourt of Appeals of Texas
DecidedNovember 2, 2011
DocketNo. 04-10-00855-CV
StatusPublished
Cited by4 cases

This text of 357 S.W.3d 124 (In re L.D.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re L.D.C., 357 S.W.3d 124, 2011 Tex. App. LEXIS 8708, 2011 WL 5190667 (Tex. Ct. App. 2011).

Opinion

OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

A jury found appellant, a juvenile, engaged in delinquent conduct by committing aggravated assault with a deadly weapon on a public servant and by committing deadly conduct. The' jury decided there was a need for disposition and recommended a determinate sentence of forty years and ten years, respectively. The trial court adopted the jury’s findings and committed appellant to the Texas Youth Commission. We affirm in part and reverse in part and remand.

BACKGROUND

Two separate but related incidents form the basis for the charges against appellant. The first incident concerns rifle shots fired at or near a street party. The second incident concerns rifle shots fired at a police officer. Each is discussed below.

• For the first event, testimony at trial established that a street party was taking place near Davis Middle School in the early morning hours of April 24, 2010. Appellant was one of approximately 100 people at the party. A witness testified at trial that she saw appellant at the party with a “big gun.” An argument between several individuals, including appellant, began at the party and then an unidentified person told appellant to leave. Right after the argument ended, another unidentified person started firing shots from a gun. At trial, appellant admitted he also fired shots from an AK--47 rifle “up in the air” at the party. Bullet fragments from this rifle were found in the windshield of a vehicle parked nearby.

The second incident from which charges were brought against appellant occurred just after the shooting at the party. On the same early morning, Officer Matthew David Martin, a patrol officer with the San Antonio Police Department, was writing a report in his marked patrol vehicle in the parking lot of Davis Middle School when he heard what he recognized to be rifle fire from a location near him. Martin exited the parking lot and drove onto Holly Springs Road where he saw people running and cars quickly leaving the area.

A woman stopped in front of the patrol car and pointed to an area where the appellant and one or two other individuals were running through a field behind Davis Middle School. One of the individuals was later identified as Tre Jones. A row of houses lies to the south of the field and behind where Martin stopped his vehicle. Martin shone a spotlight on the area and saw appellant carrying an AK-47 assault rifle. He sent out a call for back-up over the police radio. Martin then called out to appellant and Jones to stop running and identified himself as a police officer. The individuals continued to run in the opposite direction of the officer, but then appellant stopped, turned and fired the assault rifle [127]*127near Martin, which was also in the direction of the residential area behind Martin. Martin then returned fire. After Martin fired several rounds, appellant dropped to the ground but then got back up with the rifle in his opposite hand and started to position himself to fire the rifle ' again towards Martin. Martin opened fire again on appellant who dropped, to the ground but then stood up without the rifle and ran with Jones to the outer buildings of the middle school. By this time, other officers had arrived at the scene and retrieved the rifle from the field. Appellant and Jones were apprehended a short time later where they were hiding outside of Davis Middle School.

Appellant was charged with three counts: attempted capital murder (Count I), aggravated assault on a peace officer with a deadly weapon (Count II), and deadly conduct (Count III). The jury made a finding of not true to Count I. Appellant appeals the jury’s findings of true on Count II and Count III.

SUFFICIENCY OF THE EVIDENCE

In his second issue on appeal, appellant asserts the evidence is legally insufficient to support the jury’s finding that he is the person who shot at or in the direction of Officer Martin in Count II of the charges. Appellant argues there is no evidence to prove he was the person holding or shooting the gun in the field behind Davis Middle School. In a sufficiency challenge, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex.Crim.App.2010). We defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Id. at 899.

Here, Officer Martin testified appellant ran through the field with the AK-47 rifle and fired shots in his direction. He testified that, although it was dark outside, his view was aided by a spotlight attached to his patrol vehicle where he had about ten seconds to view appellant. Additionally, Martin testified that shortly after the shooting he was given a photo line-up of six individuals. Martin immediately identified appellant from this photo line-up based on his observation of appellant’s physical features. Furthermore, Martin testified he had gone through a facial recognition class while employed with the United States Secret Service. Also, Tre Jones, the other individual running with appellant through the field, testified it was in fact appellant who fired the shots in the direction of Martin. Conversely, appellant, who testified on his own behalf, denied he was the person who had control of the rifle in the field and denied he was the person who shot it in the direction of Officer Martin. Appellant’s defense at trial was that Jones was the person responsible for the shots fired toward Martin.

Although appellant’s own testimony is in conflict with Martin’s and Jones’ testimony, it was the jury’s prerogative to decide credibility of the witnesses and the weight to be given to their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000) (en banc). After viewing the evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found the essential elements of aggravated assault with a deadly weapon on a public servant.1

[128]*128MOTION FOR MISTRIAL

In his sixth issue on appeal, appellant asserts the trial court erred in failing to grant his motion for mistrial after the jury heard two different potentially prejudicial questions concerning appellant’s thirty-five year old cousin, T.C., who testified on his behalf. T.C. responded on cross-examination by the State that she did not know Tre Jones until the day after the shootings, but that she and her fiancé both knew Jones’s father. Of the two potentially prejudicial questions, one was about T.C. threatening Jones’s grandmother, and the other was about T.C.’s fiancé threatening Jones’s father. The following transpired when T.C. was questioned by the State:

Q: In fact, you-all know [Tre Jones] enough to actually go by and threaten his grandma, don’t you?
A: No, ma’am, I don’t do things like that.
Defense Counsel: Objection, Your Hon- or. That’s 403. Can we approach?

The judge then excused the jury and asked the State to continue questioning T.C.

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Related

in the Matter of C.H., a Minor Child
412 S.W.3d 67 (Court of Appeals of Texas, 2013)
In the Matter of L.D.C., a Child
400 S.W.3d 572 (Texas Supreme Court, 2013)
In the Matter of I.L., a Juvenile
389 S.W.3d 445 (Court of Appeals of Texas, 2012)
in the Matter of I. L., a Juvenile
Court of Appeals of Texas, 2012

Cite This Page — Counsel Stack

Bluebook (online)
357 S.W.3d 124, 2011 Tex. App. LEXIS 8708, 2011 WL 5190667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ldc-texapp-2011.