In re L.R.

84 S.W.3d 701
CourtCourt of Appeals of Texas
DecidedJuly 11, 2002
DocketNo. 01-00-01364-CV
StatusPublished
Cited by25 cases

This text of 84 S.W.3d 701 (In re L.R.) 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.R., 84 S.W.3d 701 (Tex. Ct. App. 2002).

Opinion

OPINION

MICHAEL H. SCHNEIDER, Chief Justice.

A jury found that appellant, a minor, engaged in the delinquent conduct of aggravated assault with a deadly weapon. The jury determined that appellant was in need of rehabilitation, assessed his punishment at five years in the Texas Youth Commission, and recommended probation. The court removed appellant from his home and placed him in the custody of the chief juvenile probation officer for placement at the Burnett Bayland Resource Center. In three points of error, appellant (1) challenges the legal and factual sufficiency of the evidence, (2) asserts that the court erred by allowing evidence of a prior bad act into evidence, and (3) claims the court erred in allowing an improper jury argument. We affirm.

Background

The complainant, also a minor,1 alleged that appellant stopped by her house, asked to see her brother, and then pointed a gun at her head after she told him her brother was not home. Appellant admitted that he visited the complainant’s house looking for her brother, but denied having a gun and denied threatening her in any way. No gun was ever recovered, and the complainant is the only witness who claimed to have seen a gun. Below, we summarize the evidence presented at trial.

The complainant, S.D., testified she was home alone after school on February 18, 2000, when appellant knocked on the front door. Although she was not a friend of appellant, S.D. recognized him from the physical education class that both attended at school. The complainant opened the door, and appellant asked for her brother. She told him that her brother was not home. Appellant then pulled out a small black handgun from his pocket, pointed it at her head, and said in a loud voice, “Go get your brother.” S.D. was able to shut the door and appellant turned and walked away from the house. She immediately called her mother at work and told her what happened. While complainant was on the phone, a friend of S.D.’s from the neighborhood knocked on the door.

The friend, M.O., testified she was approaching the house to borrow some skates when she heard someone saying in a loud deep voice, “Go get your brother.” She then saw appellant walking away from the house with his hands in his pockets. M.O. was afraid and returned to her house briefly before coming back to check on her friend. She found the complainant crying and looking scared. After hearing what had happened, M.O. ran back home and returned shortly with her stepfather. M.O.’s stepfather saw the complainant in a hysterical state, heard her story, and called 911. The girls then went to see S.D.’s aunt, who lived two houses away. The aunt testified that S.D. was shaking and had been crying.

Officer Tim Morducai responded to the 911 call. He described the complainant as upset and hysterical when he arrived. S.D. told the police officer that appellant [704]*704had pointed a gun at her and said he was going to kill her if she didn’t get her brother. Officer Morducai and several other officers then detained a group of juveniles, including appellant, who were playing basketball at a house nearby. The complainant was driven by the scene and identified appellant. Appellant was searched by police, as was the surrounding area, but no gun was found.

Appellant took the stand in his own defense and testified that he and some friends had gathered for a wrestling match and to play basketball. He went to S.D.’s house because her brother had said he could borrow some cologne. He testified he did not have a gun, and, in fact, he had backed up from the door when he spoke to the complainant because a large dog was there with her.2 He left without incident after being told that the brother was not home. While riding back to his friend’s house, he saw the police arrive. When questioned by the police, appellant said he did not know anything about a gun.

On cross-examination, the State questioned appellant about his temper. He testified that he got angry only when people drove him to it, but he acknowledged that school records would show there were numerous occasions when he had been angry. Also, he agreed that someone would not be lying if he or she testified that appellant had pushed his father up against a wall in the courthouse hallway the previous day. However, he testified that he was not angry when he went to the complainant’s house.

Three of appellant’s friends testified. They generally corroborated appellant’s account of a wrestling match and a basketball game. None of the friends said they saw appellant with a gun. One friend rode his bike down to the complainant’s house with appellant, but left before the conversation with S.D. took place.

The State attempted to establish that there was some sort of a confrontation between two groups of boys the previous day at school that led to the incident, but details remained elusive. The complainant’s brother was aware of an altercation involving two groups of kids on that day, but he was not a part of it and did not know if appellant was involved. Further, he testified that he had never had any problems with appellant. One of appellant’s friends testified that appellant had been involved in another altercation the day before that required him to go to the principal’s office, but that altercation was with a boy named D., not with the complainant’s brother. The State also introduced, over objections, a school record made the day before the alleged assault outlining appellant’s misbehavior in class. The State then argued in closing that appellant’s motive in visiting the complainant’s house was tied to a confrontation between two groups of children the previous day.

Legal and Factual Sufficiency

As his first point of error, appellant contends that the evidence was legally and factually insufficient to support the verdict. In juvenile cases, a reviewing court applies the criminal sufficiency standards of review. See In re G.A.T., 16 S.W.3d 818, 828 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). When evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 566, 562 (Tex.Crim.App.2000). Our review of the factual sufficiency of the evidence [705]*705requires us to ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563.

We have already outlined the evidence at some length. The complainant was the only witness claiming to have seen a gun, while appellant asserted that he never had a gun. The jury, as the exclusive judge of witness credibility, was entitled to believe the complainant and not believe appellant. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Although no gun was ever recovered, testimony that uses the term “gun,” as the complainant did, is sufficient evidence on which the jury can conclude that a deadly weapon was used. Wright v. State, 591 S.W.2d 458, 459 (Tex.Crim.App.1979).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in the Interest of L.L., a Child
Court of Appeals of Texas, 2019
In re L.D.C.
357 S.W.3d 124 (Court of Appeals of Texas, 2011)
in the Matter of L.D.C., a Child
Court of Appeals of Texas, 2011
State v. Schroeder
777 N.W.2d 793 (Nebraska Supreme Court, 2010)
In re M.P.
220 S.W.3d 99 (Court of Appeals of Texas, 2007)
in the Matter of M.P., a Child
Court of Appeals of Texas, 2007
in the Matter of S.W.
Court of Appeals of Texas, 2006
In re C.J.M.
167 S.W.3d 892 (Court of Appeals of Texas, 2005)
in the Matter of C.J.M.
Court of Appeals of Texas, 2005
Alex Magallanez v. State
Court of Appeals of Texas, 2004
In Re JH
150 S.W.3d 477 (Court of Appeals of Texas, 2004)
in the Matter of N.S., a Juvenile
Court of Appeals of Texas, 2004
In re J. H.
150 S.W.3d 477 (Court of Appeals of Texas, 2004)
in the Matter of J. H.
Court of Appeals of Texas, 2004
Weatherspoon, Leonard v. State
Court of Appeals of Texas, 2003
in the Matter Of: D.W.A.
Court of Appeals of Texas, 2003
in the Interest Of: M.F.
Court of Appeals of Texas, 2003
In Re LR
84 S.W.3d 701 (Court of Appeals of Texas, 2002)
Carl v. Long v. C. Tony Wright
Court of Appeals of Texas, 2002

Cite This Page — Counsel Stack

Bluebook (online)
84 S.W.3d 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lr-texapp-2002.