Patrick Jamal Living v. State

Opinion

Opinion issued May 13, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00446-CR

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Patrick Jamal Living, Appellant

V.

State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Case No. 1151200

MEMORANDUM OPINION

A jury convicted appellant, Patrick Jamal Living, of the second-degree felony offense of aggravated assault.  The trial court sentenced him to twenty five years’ imprisonment.  On appeal, Living contends that the evidence is factually insufficient to support a finding that he assaulted Mary Leroy with a firearm and that the trial court erred in limiting his closing argument to twenty minutes.  Finding no error, we affirm.

Facts

In December 2007, Living and Leroy were married, but had separated and were living in separate apartments in northwest Houston.  Leroy invited Living to spend the New Year’s holiday at her apartment.  After Living arrived, he and Leroy argued about her suspicion that he was having an extramarital affair. 

On the morning of December 31, Leroy, accompanied by her sisters, Leonarda and Lanadia, sought medical treatment for welts that had appeared on her face and neck.  When Leroy and her sisters returned from the hospital, Leroy went into her bedroom to discuss the results of the examination with Living.  She told Living that, according to the doctor, a sexually-transmitted disease had caused the welts.  Leroy again accused Living of cheating and asked him to leave.  Living insisted that he wanted to stay. 

When they heard the argument, Leroy’s sisters entered the bedroom.  Lanadia began to argue with Living.  Leroy saw that Living was about to become violent and pulled Lanadia out of the room.  Living chased after Lanadia, grabbed her by the throat, and pushed her partway through the kitchen window, breaking the glass.  Leroy and her other sister, Leonarda, tried to stop Living from attacking Lanadia.  Leroy tried to push Living away, and when Living began slamming Lanadia into the kitchen counter, Leonarda pounded Living with her fists until he released Lanadia.  Living then turned on Leonarda, hitting her with a side table and throwing the television set at her.  After the sisters armed themselves with the legs from the broken table, Living left the apartment, telling them that he was going to get “that thing,” which Leroy understood as a reference to his gun.

Officer Semein of the Houston Police Department and an ambulance came to the scene in response to a 911 call.  Leroy’s brother and cousin, who lived in the same apartment complex, came over to discuss the situation with her.  Her brother commented that Leroy’s car was missing, and Leroy realized that Living had taken her car.  Leroy’s cousin and brother offered to help her locate the car, and the three left the complex in her brother’s green Ford Explorer. 

As they headed back to the apartment complex, Leroy’s brother, who was driving, received a telephone call from Leonarda, who warned that Living had returned to the complex with a gun.  As they approached the apartment entry gate, Leroy saw Living standing near her apartment with a gun in his hand.  Fearing that Living would target her mother, who also lived in the complex, Leroy had her brother turn the Explorer into a parking lot on one side of the apartment and head back toward the entrance. 

As they approached Living for a second time, Living pointed his gun at them.  When Leroy’s brother reacted by backing up the Explorer, Living pointed the gun toward them and fired.  Leroy ducked under the dashboard as her brother continued to maneuver the Explorer through the parking lot and out of the complex, and then he turned onto West Tidwell.  Meanwhile, Living, in Leroy’s car, drove out of a different exit and headed in the opposite direction on West Tidwell toward the Explorer.  As Living passed, he again shot the gun, hitting the back of the Explorer.  Leroy felt the bullet’s impact shake the truck.  The jury heard that Leroy’s brother refused to voluntarily submit to a police interview and generally was uncooperative in the investigation.

Officer Semein, a thirteen-year veteran of the police department, testified that he arrived at the apartment complex in response to a call about gunshots.   A man who identified himself as Alejandro Aldrete approached him and stated that he had placed the 911 call.  Aldrete explained that he saw a tall, thin, black man with a gun shoot at a green Ford Explorer, and he heard a total of three gunshots.  Semein found a spent bullet casing in the parking lot of the apartment complex. 

Semein did not hear any gunshots after he arrived at the scene.  Semein’s report did not mention that Living had a gun or that he had fired a gun.  Semein had a brief opportunity to visually inspect the Explorer.  The Explorer had holes in the door, but they looked rusty and old.  John Clary, who was repairing a vending machine on the apartment complex premises at the time of the incident, testified that a woman approached him and asked him to call 911 because a man was running around the complex with a gun, but he did not either see a man with a gun or hear any gunshot while he was there. 

Discussion

I.       Factual Sufficiency of Aggravated Assault Finding

A.      Standard of review

When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).  We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  In conducting a factual sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The fact-finder alone determines the weight to place on contradictory evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).  The jury may believe or disbelieve some or all of a witness’s testimony, even if that testimony is uncontradicted, and is the sole judge of the weight and credibility of witness testimony.  Hernandez v. State, 161 S.W.3d 491, 501 (Tex. Crim. App. 2005).  The testimony of a single eyewitness can be factually sufficient to support a conviction.  Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). 

B.      Aggravated assault

Living contends that the evidence was factually insufficient to prove that he threatened Leroy with a firearm.  To support a charge of aggravated assault, the State must prove beyond a reasonable doubt that the defendant (1) intentionally or knowingly threatened another, (2) with imminent bodily injury, (3) while using or exhibiting a deadly weapon, here, a firearm.  See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2009); Hall v. State, 225 S.W3d 524, 431 (Tex. Crim. App. 2007) (observing that “aggravated assault may be committed by threat with a deadly weapon”).  Living contends that (1) none of the witnesses gave a detailed description of the gun; (2) while the State’s witnesses testified that Living fired the gun at the Explorer, the only physical evidence of holes in the truck appeared to be old and rusty; and (3) the testimony proved only that Living fired in the general direction of the Explorer, not that he ever pointed the gun specifically at Leroy with the intent of threatening her.  Living also observes that the State’s witnesses had significant credibility problems, speculating that Leroy’s marital problems with Living influenced her testimony.  For these reasons, Living asks that we find the evidence to be factually insufficient.

We turn first to Living’s contention that the State failed to prove that he intended to threaten Leroy with the deadly weapon.  Leroy testified that Living had a gun, pointed it at her, and fired.  Leonarda also testified that she saw Living with a gun and that she heard a gunshot.  In addition, Aldrete testified that he heard three gunshots and saw a person fire a gun at a green Explorer.  Testimony from a complainant in close proximity to a weapon, describing it as a “gun,” a “revolver,” and a “pistol,” is sufficient to prove the use of a deadly weapon.  Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979); Leadon v. State, Nos. 01-08-00839-CR, 01-08-00840-CR, 2010 WL 143467, at *8 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010) (no pet. h.).

With respect to evidence that Living threatened Leroy, we observe that Leroy testified that Living stated that he was going to get his gun, and that he returned with the gun and pointed it at her.  Leroy ducked down in the Explorer in fear and apprehension.  Intent may be inferred from the circumstantial evidence surrounding and incident including the acts, words, and conduct of the accused.  Guevara v. State, 152 S.W.3d 45, 49–50 (Tex. Crim. App. 2004).  The evidence, viewed in a neutral light, supports an inference that Living intentionally threatened Leroy with a firearm. 

Living also charges that the State’s witnesses, particularly Leroy, had “significant credibility problems.”  Living, however, does not point to any testimony that is demonstrably false but relied on by the jury.  We may not revisit the jury’s credibility determinations in conducting a factual sufficiency review.  See Wilson v. State, 863 S.W.2d 59, 65–66 (Tex. Crim. App. 1993).  We hold that the evidence is factually sufficient to support the jury’s finding that Living committed aggravated assault. 

II.      Time Limit for Closing Argument

Living contends that the trial court erred in limiting his closing argument to twenty minutes, which was inadequate to present his defensive arguments and thereby caused him prejudice.  The trial court is vested with broad discretion in limiting the duration of closing arguments.  Hernandez v. State, 506 S.W.2d 884, 886 (Tex. Crim. App. 1974).  In Dang v. State, the Court of Criminal Appeals set out several non-exclusive factors to consider in determining the reasonableness of the time limit imposed on closing argument.  154 S.W.3d 616, 621 (Tex. Crim. App. 2005).  These include: (1) the quantity of the evidence; (2) the duration of the trial; (3) conflicts in the testimony; (4) the seriousness of the offense; (5) the complexity of the case; (6) whether counsel used the time allocated efficiently; and (7) whether counsel set out what issues were not discussed because of the time limitations.  Id.

The trial in this case took less than three days and included the testimony of six witnesses.  The State finished its closing argument in nine minutes.  Although aggravated assault is a first-degree felony, and thus a serious offense, the issues in dispute were straightforward.  Living has not identified any point that defense counsel failed to make in closing because of the time constraint.  Based upon the relatively small number of witnesses, the lack of complexity, and the absence of any defensive issue which required more time to discuss in closing argument, we hold that the trial court acted within its discretion by allocating twenty minutes for each closing argument.  See id.

Conclusion

We hold that the evidence is factually sufficient to support Living’s conviction for assault with a firearm and that the trial court did not err by limiting the time for closing argument.  We therefore affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.   Tex. R. App. P. 47.2(b).