COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-416-CR
IWIN
ELLIS APPELLANT
V.
THE
STATE OF TEXAS STATE
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FROM
CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
A
jury convicted Appellant Iwin Ellis of aggravated assault with a deadly weapon
and felony assault with bodily injury of a family member. See Tex. Penal Code Ann. § 22.01(a)(1),
(a)(2), (b)(2) (Vernon Supp. 2004). The jury assessed Ellis’s punishment at
twenty years’ confinement for the aggravated assault with a deadly weapon and
at ten years’ confinement for the felony assault with bodily injury of a
family member. Ellis raises five issues on appeal challenging the legal and
factual sufficiency of the evidence to support his conviction for both offenses.
We will reverse the trial court’s judgment as to the felony assault
family-violence conviction and render a judgment of acquittal as to that
offense. We will affirm Ellis’s conviction for aggravated assault with a
deadly weapon.
II. Factual Background
Ellis
and Tawana Ford are the biological parents of several children. Ford and several
other people were visiting at the home of a friend, Kimberly Long. Ford left
Long’s house, and the visitors gathered there then heard a female scream come
from outside. Long looked outside and saw Ellis, with a cup in his hand, pushing
Ford into a car. Long testified that Ford’s face looked wet. Long later
retrieved the cup from the ground, and it smelled of gasoline. Authorities
tested the residue in the cup and found it to be gasoline.
Sandra
Jarmon, one of the visitors at Long’s house, was concerned for Ford’s safety
following the incident and telephoned Ford’s mother, Annie Viels. After
receiving Jarmon’s call, Viels got in her car and drove around the east side
of Fort Worth searching for Ford. Eventually, when Viels stopped at a stop sign,
Ford came running towards Viels’s car and got in it. Ford was hysterical and
crying. Ford told Viels that Ellis had poured gasoline on her face and hair and
that the gasoline was burning her. Ford also said that Ellis had threatened to
set her on fire and that he had a cigarette lighter. Ford explained that she had
pleaded with Ellis for her life and that he let her out of the car. At trial,
testimony revealed that Ellis was apparently upset with Ford because she was
dating another man.
III.
Legal Sufficiency—Concession of Error
In
his second issue, Ellis complains that the evidence is legally insufficient to
support his felony assault family-violence conviction. Specifically, Ellis
argues that the State failed to prove that his previous assault conviction was
based on an assault against a member of his family or household as required by
Texas Penal Code section 22.01(b)(2). Tex. Penal Code Ann. § 22.01(b)(2). The State concedes
that the evidence is legally insufficient to prove that Ellis’s previous
assault conviction was against a member of his family or household. We agree. We
have carefully reviewed the record, applying the legal sufficiency standard of
review, and no rational trier of fact could have found beyond a reasonable doubt
that Ellis’s prior assault conviction stemmed from an assault against a member
of his family or household. See Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979) (setting forth legal sufficiency standard of
review); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001)
(same). As pointed out by the State, the “only evidence [it] presented
regarding the family-member issue was that the trial court (Tarrant County
Criminal Court Number Five) where the prior assault conviction was obtained
primarily deals with ‘domestic violence assault bodily injury on family
members.’” This is not enough. Even construing the evidence in the light
most favorable to the jury’s verdict, the evidence shows only that Ellis was
previously convicted of an assault/bodily injury and that the prior assault likely
involved family violence because of the court where the case was tried.
The
State also acknowledges that we cannot reform the felony assault family-violence
judgment to reflect Ellis’s conviction of the lesser included offense of
assault. See Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim.
App. 1999) (holding court of appeals may reform judgment to reflect conviction
of lesser included offense only if (1) the evidence is insufficient to support
conviction of the charged offense but sufficient to support conviction of the
lesser included offense and (2) either the jury was instructed on the lesser
included offense or one party asked for but was denied such an instruction). We
agree. Consequently, we sustain Ellis’s second issue and render a judgment of
acquittal on the felony assault family-violence charge.2
IV.
Factual Sufficiency
In
his fourth issue, Ellis argues that the evidence is factually insufficient to
support his conviction for aggravated assault with a deadly weapon because the
State failed to show that un-ignited gasoline is a deadly weapon that can cause
death or serious bodily injury. In his fifth issue, Ellis urges us to abrogate
the current factual sufficiency standard in favor of a standard less demanding
than the legal sufficiency standard. Ellis contends that, because in order to
prevail under the factual sufficiency standard, he must show that the verdict is
manifestly unjust, shocks the conscience, or clearly demonstrates bias, this
standard is paradoxically more demanding than the legal sufficiency standard.
The State responds that Ellis’s factual sufficiency challenge to the jury’s
deadly weapon finding is without merit and argues that this court should not
alter the existing standard of review.
A.
Standard of Review
As
an intermediate appellate court, we are bound to follow the pronouncements of
the court of criminal appeals. See Taulung v. State, 979 S.W.2d
854, 857 (Tex. App.—Waco 1998, no pet.). Consequently, we decline Ellis’s
invitation to create and adopt a new factual sufficiency standard of review for
criminal cases. We overrule Ellis’s fifth issue and apply the traditional
factual sufficiency standard of review to his fourth issue.
In
reviewing the factual sufficiency of the evidence to support a conviction, we
are to view all the evidence in a neutral light, favoring neither party. Johnson
v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922
S.W.2d 126, 129, 134 (Tex. Crim. App. 1996). Evidence is factually insufficient
if it is so weak as to be clearly wrong and manifestly unjust or the adverse
finding is against the great weight and preponderance of the available evidence.
Johnson, 23 S.W.3d at 11. Therefore, we must determine 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
verdict, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof. Id. In performing this review, we are to
give due deference to the fact finder’s determinations. Id. at 8-9; Clewis,
922 S.W.2d at 136. We may not substitute our judgment for that of the fact
finder’s. Johnson, 23 S.W.3d at 12.
To
make a determination of factual insufficiency, a complete and detailed
examination of all the relevant evidence is required. Johnson, 23 S.W.3d
at 12. A proper factual sufficiency review must include a discussion of the most
important and relevant evidence that supports the appellant’s complaint on
appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Evidence Supports Deadly Weapon Finding
Ellis’s
specific factual sufficiency argument is that gasoline, standing alone (without
ignition or intent to ignite) did not and could not cause death or serious
bodily injury. He points out that the gasoline on Ford’s skin did not even
require her to go to the doctor. Moreover, Ellis contends that he never intended
to ignite the gasoline. He claims he only intended to scare Ford by splashing
her with gasoline, so she was never actually in any danger of death or serious
bodily injury.
The
Texas Penal Code defines a “deadly weapon” as “anything that in the manner
of its use or intended use is capable of causing death or serious bodily
injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B). The court of
criminal appeals has explained this provision:
The
provision’s plain language does not require that the actor actually intend
death or serious bodily injury; an object is a deadly weapon if the actor
intends a use of the object in which it would be capable of causing death or
serious bodily injury. The placement of the word “capable” in the provision
enables the statute to cover conduct that threatens deadly force, even if the
actor has no intention of actually using deadly force.
Bailey
v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001) (citing McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000)).
The
facts here show that Ford smelled like gasoline when her mother picked her up.
Ford hysterically told her mother that the gasoline was burning her. She said
that while she was in the car with Ellis, he repeatedly threatened to set her on
fire, and she pleaded with him for her life. Fort Worth Police Officer James
Dunn testified that Ford told him she argued with Ellis, and Ellis assaulted
her—grabbing her by the hair; throwing gasoline on her; and forcing her into
his car—and drove her to a wooded area. Ellis told Ford that if she left, he
would set her on fire. Officer Dunn also testified that paramedics treated Ford
at the scene for gasoline burns that raised the skin on her arm and face. The
paramedics washed the gasoline from Ford’s eyes and hair. Officer Dunn and a
detective with the Fort Worth Police Department, Detective Bryan Jamison,
testified that gasoline as used in this particular case (that is, in conjunction
with threats to ignite it with a cigarette lighter) constituted a deadly weapon.
The
evidence outlined above contradicts Ellis’s written statement that he “just
wanted to scare [Ford]” and that he “was not going to set her afire, that
was never [his] intention before or after [he] poured the gas on her.”
Moreover, neither Ellis’s alleged lack of intent to ignite the gasoline nor
Ford’s failure to seek further medical treatment for her gasoline burns
renders the evidence supporting the deadly weapon finding factually
insufficient. See McCain, 22 S.W.3d at 502-03. Ellis threw a cup of
gasoline on Ford and threatened to set her on fire with a cigarette lighter. The
gasoline, as used by Ellis, was “capable” of causing death or serious bodily
injury. See Tex. Penal Code Ann. § 1.07(a)(17)(B); Magee v. State,
994 S.W.2d 878, 890 (Tex. App.—Waco 1999, pet. ref’d) (stating gasoline may
be deadly weapon in the manner of its use); Rogers v. State, 908 S.W.2d
239, 242 (Tex. App.—El Paso 1995, no pet.) (same); Rice v. State, 771
S.W.2d 599, 600 (Tex. App.—Houston [14th Dist.] 1989, no pet.)
(same); accord Kingsbury v. State, 14 S.W.3d 405, 408-09 (Tex.
App.—Waco 2000, no pet.) (holding evidence that appellant poured gasoline into
bug sprayer, pumped and sprayed the gasoline into the victim’s face, and
threatened to “burn [her] ass up” while trying to ignite the gasoline with
cigarette lighter supported conviction for deadly conduct). We hold that
factually sufficient evidence exists supporting the jury’s deadly weapon
finding. We overrule Ellis’s fourth issue.
V.
Conclusion
Having
sustained Ellis’s second issue contending that the evidence is legally
insufficient to support Ellis’s guilt of felony assault family-violence, we
reverse the judgment of the trial court and render a judgment of acquittal on
that count. See Tex. R. App. P.
43.2(c), 51.2(d); Greene v. Massey, 437 U.S. 19, 24-25, 98 S. Ct. 2151,
2154-55 (1978); Burks v. United States, 437 U.S. 1, 16-18, 98 S. Ct.
2141, 2150-51 (1978); Gollihar v. State, 46 S.W.3d 243, 246 n.4 (Tex.
Crim. App. 2001). Having held Ellis’s first and third issues moot and having
overruled Ellis’s fourth and fifth issues, we affirm the trial court’s
judgment on the aggravated assault with a deadly weapon conviction.
PER
CURIAM
PANEL
F: WALKER, HOLMAN, and GARDNER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
January 29, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2.
In his first and third issues, Ellis challenges the trial court’s denial of
his motion for directed verdict on the felony assault family-violence charges
and the factual sufficiency of the evidence to support his conviction for this
offense. Because we have held the evidence legally insufficient to support
Ellis’s felony assault family-violence conviction, we need not address these
issues. See Tex. R. App. P. 47.1 (court of appeals must address
only issues necessary to finally dispose of appeal); Carlson v. State, 71
S.W.3d 524, 528 (Tex. App.—Austin 2002, no pet.) (holding factual sufficiency
complaints are moot if legal sufficiency complaint is sustained).