Michael Lynn Bordelon v. State

• Court: Court of Appeals of Texas
• Decided: October 29, 2009
• Docket: 14-08-00334-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 29, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00334-CR

Michael Lynn Bordelon, Appellant

v.

The State of Texas, Appellee

On Appeal from the Crimal District Court

Jefferson County, Texas

Trial Court Cause No. 97797

MEMORANDUM OPINION

Appellant Michael Lynn Bordelon challenges the legal and factual sufficiency of the evidence at a bench trial supporting his conviction for deadly conduct.  We affirm.

I.  Factual and Procedural Background

Appellant was charged by indictment with the felony offense of deadly conduct, to which appellant pleaded “not guilty.”[1]  At a bench trial, the State offered testimony from appellant’s former neighbor, Mark Guarnere, the complainant.  Guarnere described his encounter with appellant on May 15, 2006, in which he claimed that appellant fired a gun at him from across the street as Guarnere was standing outside his home.  With the aid of a diagram depicting the neighborhood, Guarnere described seeing a rifle fire from the corner of appellant’s house.  Guarnere testified to hearing a “muzzle blast” and testified that a bullet struck the windshield of his vehicle in his driveway.  Guarnere recalled seeing appellant stand up and walk towards the rear of appellant’s home after the shooting.  Guarnere explained that he notified authorities, who arrived on the scene in response to the call. 

A law enforcement officer testified that he found a pair of eye glasses and an unspent .22 shell casing on the ground and a cell phone in the same vicinity beside appellant’s home, in the place from which the shots were fired.  The cell phone displayed a picture of appellant and appellant’s wife.  The officer remembered that the ground beside appellant’s home appeared to have been cleared, as if someone had been lying on the ground.  He recalled that there was an impression in the dirt from a person’s elbow and that the person may have been in a prone position.  Another officer testified that he examined the bullet hole in the vehicle’s windshield and recovered bullet fragments from inside the vehicle.  The fragments appeared to be from a .22 caliber bullet.  Both officers took photographs of the scene.

A third officer testified that he met with appellant two days after the event.  At this meeting, the officer advised appellant that he was a suspect in the case and read appellant his rights.  At the meeting, appellant claimed to be unaware of the incident and denied having heard a rifle shot that night.  Although appellant initially denied owning the cell phone that was recovered at the scene, he later admitted the phone belonged to him.  According to the officer, appellant had no explanation as to why his eye glasses and cell phone were recovered from outside of the rear corner of his home.  The officer testified that appellant admitted owning a .22 caliber rifle, which the officer took into custody as part of the investigation.  The rifle was admitted into evidence at trial along with the bullet fragments and the photos of the scene. 

Appellant’s wife and family members testified that appellant and Guarnere had a history of disputes.  They testified that appellant moved from the neighborhood several months following the event in question on the advice of appellant’s attorney. 

The trial court found appellant guilty as charged.  After reviewing a presentence investigation report, the trial court sentenced appellant to five years’ confinement.

II.  Analysis

In a single issue, appellant claims reversible error occurred when the trial court found appellant guilty because no evidence supports the judgment.  According to appellant, the evidence failed to prove that he was guilty of the charge of deadly conduct.[2]  We construe appellant’s complaint as a challenge to the legal and factual sufficiency of the evidence.

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant=s evidence outweighs the State’s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.”  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses’ testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is “clearly wrong” or “manifestly unjust” because the great weight and preponderance of the evidence contradicts the jury’s verdict.  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).  It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury’s resolution of that conflict.  Id. at 417.  If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony.  See Fuentes, 991 S.W.2d at 271.  In conducting a factual‑sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of deadly conduct if that person knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.  See Tex. Penal Code Ann. § 22.05(b)(2) (Vernon 2003).  Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.  Tex. Penal Code Ann. § 22.05(c) (Vernon 2003). 

The record reflects that Guarnere was standing outside of his home when he saw a rifle fire from the corner of appellant’s house across the street.  He heard the bullet hit and testified that the bullet struck the windshield of his vehicle, which was in his driveway at the time.  He claimed to have seen appellant stand up and walk behind his house after the shots were fired.  The record reflects that law enforcement officers found appellant’s eye glasses, a cell phone belonging to appellant, and a .22 caliber shell on the ground at the corner of appellant’s home, where Guarnere saw appellant.  It appeared to officers that someone had been lying on the ground in the same location from which the shots were fired.  Officers recovered bullet fragments from inside Guarnere’s vehicle that appeared to be from a .22 caliber bullet.  Officers took a .22 caliber rifle from appellant, who admitted owning the cell phone located at the scene.  Although appellant asserts that Guarnere offered “false complaints and testimony,” the trial court, as factfinder, was in a position to weigh the credibility of the witnesses as well as the testimony regarding the physical evidence.  See Kacz v. State, 287 S.W.3d 497, 508 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (determining that evidence was factually sufficient to support a conviction for deadly conduct despite claims that the complainant lied to police).

Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the elements of deadly conduct beyond a reasonable doubt.  See Ford v. State, 38 S.W.3d 836, 847 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (determining evidence was legally and factually sufficient to support conviction of deadly conduct).  Likewise, viewing the evidence in a neutral light, we are not able to say with some objective basis in the record that appellant’s conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury’s verdict.  See Kacz, 287 S.W.3d at 508.  Therefore, the evidence is legally and factually sufficient to support the verdict. 

Accordingly, we overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

Do Not Publish C Tex.  R.  App.  P.  47.2(b).

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[1] Appellant also was charged, in other cause numbers, with the offenses of theft and retaliation.  Appellant pleaded “guilty” to the theft charges and “not guilty” to the retaliation charge.  Following a separate bench trial on the retaliation charge, the trial court found appellant not guilty of that offense.  Appellant does not raise any issues pertaining to these offenses.

[2] This appeal was transferred to the Fourteenth Court of Appeals from the Ninth Court of Appeals.  In cases transferred by the Supreme Court of Texas from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court if the transferee court’s decision would have been inconsistent with the precedent of the transferor court.  See Tex. R. App. P. 41.3.