Roberts v. State

743 S.W.2d 708, 1987 WL 39464
CourtCourt of Appeals of Texas
DecidedMarch 30, 1988
DocketA14-87-277-CR
StatusPublished
Cited by19 cases

This text of 743 S.W.2d 708 (Roberts v. State) 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
Roberts v. State, 743 S.W.2d 708, 1987 WL 39464 (Tex. Ct. App. 1988).

Opinion

OPINION

CANNON, Justice.

This is an appeal from an aggravated assault conviction. The jury rejected appellant’s not guilty plea, and found he used a deadly weapon, a pistol, in the commission of the offense. The jury then found that the appellant had two prior felony convictions, and assessed punishment at confinement for a term of forty-five years. Issues on appeal concern the sufficiency of the evidence, testimony by a police officer, and certain rulings of the trial court. We affirm.

In the early morning of November 17, 1986, Houston police officers R.A. Parrott and G.R. Marchetti responded to a disturbance call. During their investigation, the officers saw the appellant, who matched the description of a suspect they had received. When hailed by the officers, the appellant responded by walking, and then running away. The officers followed in their patrol car. When the officers stopped and began to get out of their car, the *710 appellant turned and faced them. Both officers saw the appellant point a shiny object in their direction, heard a gunshot, and saw the muzzle flash of a gun. The officers took shelter in their car. The appellant fled, and the officers drove to the spot where the appellant had been standing. The officers left their car and pursued the appellant, eventually capturing him. A gun was found underneath the patrol car.

In his first point of error, the appellant contends there was insufficient evidence for an aggravated assault conviction. In reviewing a sufficiency of evidence claim, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). The standard for review is the same for both direct and circumstantial evidence cases. Sharp, 707 S.W.2d at 614; Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984).

Appellant contends that because neither Officer Parrott nor Officer Mar-chetti saw a gun in appellant’s hands, the State’s proof fails to exclude every reasonable hypothesis except the appellant’s guilt. Appellant relies upon Olever v. State, 626 S.W.2d 105 (Tex.App.—Beaumont 1981, no pet.). However, the present case is distinguishable from Olever.

In Olever, while the State’s witnesses thought they heard gunshots, they saw neither a gun nor a muzzle flash. In contrast, the present case contains ample direct evidence that appellant used a gun.

Both officers testified that the appellant pointed a shiny object at them. They heard a distinct gunshot and saw the simultaneous muzzle flash of a gun being fired. A gun with one spent round was found near the spot where the appellant had been standing. Moreover, the officers testified that appellant was running with his hands at his beltline before the shooting, but ran with his hands at his sides after the shooting. It is reasonable to infer that appellant dropped his gun at the same moment the officers were taking shelter in their patrol car. Thus, they did not see him discard the weapon, and drove over the spot where the appellant dropped the gun.

Appellant also alleges the negative results of the trace metal and nitrate tests, which were performed on his hands, indicate a lack of evidence that he committed the offense. However, testimony by the State’s expert showed the negative results to be inconclusive at best. The gun was a plated revolver; it was unlikely that gunpowder particles and metal ions were left on the hand of the person who fired the gun. Furthermore, the appellant’s hands were not “bagged” for testing until he was returned to the scene of the shooting. Any particles on his hands could have been removed during his flight from the police.

Additionally, the appellant contends the State failed to establish he committed aggravated assault, since it did not prove the appellant intentionally or knowingly threatened Officer Parrott with imminent bodily harm. The trier of fact may infer specific intent from the facts in evidence. Godsey v. State, 719 S.W.2d 578, 580-83 (Tex.Crim.App.1986); Hall v. State, 418 S.W.2d 810, 812 (Tex.Crim.App.1967). In Godsey, the appellant pointed a loaded revolver at several police officers. In Hall, the appellant shot twice at a police officer. These actions were held sufficient evidence of an intent to kill. In the present case, the appellant pointed and fired a gun at two police officers. These actions provided sufficient evidence from which a trier of fact could infer the requisite intent for aggravated assault.

After viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact would have found the essential elements of aggravated assault beyond a reasonable doubt. The appellant’s first point of error is overruled.

Appellant’s second point of error contends that the trial court erred by refusing to grant defense counsel’s request for mis *711 trial, after two witnesses gave hearsay testimony. Appellant objected to testimony from Officers Parrot and Marchetti that they were searching for a suspect who was reportedly armed. The court sustained appellant’s objections and instructed the jury to disregard the statements.

The record shows that the officers’ testimony was admitted not for its truth, but to establish the course of events and circumstances leading to the officers’ approach to the appellant. Therefore, it was not hearsay. Stewart v. State, 640 S.W.2d 643, 645 (Tex.App.—Houston [14th Dist.] 1982, no pet.). Furthermore, inadmissible evidence is rendered harmless if other evidence, proving the same fact, is admitted without objection. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986). As previously noted, there was ample evidence the appellant had a gun. However, the trial court elected to sustain the appellant’s objections, and instructed the jury to disregard. Thus, any harm from the testimony was cured. Appellant’s second point of error is overruled.

In his third point of error, appellant contends that three separate rulings by the trial court, individually or cumulatively, constituted reversible error. This claim is without merit.

In its first ruling, the court sustained the State’s objection to appellant’s question to the police officer who performed the trace metal and nitrate tests on the appellant.

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Bluebook (online)
743 S.W.2d 708, 1987 WL 39464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-state-texapp-1988.