Josue Julio Garica-Morales v. the State of Texas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-19-00267-CR
07-19-00268-CR
07-19-00269-CR
JOSUE JULIO GARCIA-MORALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court Nos. 76315-A-CR, 76316-A-CR, 76319-A-CR, Honorable Dan Schaap, Presiding
June 21, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant, Josue Julio Garcia-Morales, filed appeals in all three of his convictions
for 1) unlawful possession of a firearm by a felon (76315-A-CR), 2) aggravated assault
with a deadly weapon (76316-A-CR), and 3) unlawfully carrying a weapon on alcohol
premises (76317-A-CR). In his single issue, appellant contends the trial court abused its
discretion by failing to instruct the jury on deadly conduct in his conviction for aggravated
assault with a deadly weapon (07-19-00268-CR) only. Appellant does not challenge his
other two convictions in his appellate brief. We affirm.
Background
Because appellant is challenging his aggravated assault conviction only, we will
discuss the evidence as it relates to that offense. According to the indictment, appellant
pointed a handgun at Jerrico Fjetland and threatened him with imminent bodily injury.
The events leading to appellant’s indictment occurred in the early morning hours
at the Red Rock Saloon in Potter County on May 17, 2018. Adrianne Fjetland was serving
as bartender. After 1:45 a.m., she and her estranged husband, Jerrico, were the only
persons in the bar. Adrianne had called and texted him earlier to come to the bar due to
a “creepy” patron who had invited her to partake in cocaine with him. At approximately
2:15 a.m., Adrianne testified, appellant, appellant’s brother, and the owner of the bar
entered the bar through the backdoor. Appellant was the first person through the door
and appeared intoxicated. He immediately approached Jerrico in a hostile manner and
told him “[h]e did not belong at the bar.” Jerrico stood up. Appellant lifted his shirt, and
Jerrico “kind of got worried.” Adrianne could not see anything from her vantage point.
Appellant ordered Jerrico to sit down and have a drink. Jerrico complied. Appellant, then,
sat next to him. Suddenly, appellant rose. Adrianne saw him draw a black handgun and
point it at Jerrico. Appellant then told Jerrico that “he need[ed] to get out” and he “don’t
belong here.” Adrianne testified that she feared for Jerrico’s life and inserted herself
between the two men. Shouts ensued resulting in Jerrico leaving the bar unharmed and
calling the police. Adrianne admitted that the gun was never fired. She further said she
did not see appellant strike Jerrico with the gun.
Jerrico testified that he was approximately ten feet away from appellant when he
first saw the handgun. Appellant told him that he was going to sit down and have a drink.
Appellant also pointed the weapon in his “general direction.” Then, Jerrico was asked
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what was going through his head when appellant pointed the gun at him, to which he
replied, “this guy is going to shoot me.” Jerrico represented that he feared for his life,
stating “you’re going to be scared if somebody pulls a gun out on you and you don’t have
nothing.” He further described appellant moving to within three feet of him with gun in
hand and “[p]ointing it at me.”
Jerrico met police officers outside the bar, reentered with them, and identified
appellant as the assailant. He and Adrianne also selected appellant’s picture from a photo
array and identified him as the person who pulled the gun. Both also testified that
appellant had been drinking.
When the officers entered the bar to investigate Jerrico’s complaint, and after
Jerrico had pointed appellant out, appellant began approaching them. During the
encounter, they heard a loud thud and discovered the source of the noise was from
appellant dropping a handgun. Appellant was arrested for unlawfully possessing a
handgun in a facility that sells alcohol. Additionally, they noticed him to be intoxicated
and was belligerent with the officers.
When the officers recovered the gun, they discovered that it lacked a magazine
and bullet in the chamber. Neither the magazine nor ammunition were ever found during
the investigation. However, according to a witness, the “magazine can be discarded very
easily,” “[w]ith the simple press of a button.”
After the close of evidence, appellant requested a jury instruction on the lesser
included offense of deadly conduct for pointing the handgun at Jerrico. Counsel
contended that “an unloaded weapon was pointed at the [victim], and . . . case law clearly
states that is an act of deadly conduct in and of itself.” “Pointing a weapon, whether the
victim believes it is loaded or unloaded, is irrelevant,” according to defense counsel. In
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clarifying this argument, counsel continued by stating that in this case, “the weapon was
clearly unloaded. There was no magazine. There was no bullet chambered.” The State
responded that the record is “actually devoid of evidence as to whether or not the firearm
was loaded at the time that it was pointed at the victim.” It further argued that appellant
could not show that if he were guilty, it was of only of the lesser included offense. The
trial court denied the request.
Issue – Jury Instruction
Appellant contends the trial court abused its discretion by refusing to instruct the
jury on the lesser included offense of misdemeanor deadly conduct.1 Appellant contends
deadly conduct is a lesser included offense of aggravated assault with a deadly weapon
in this case because the elements of deadly conduct are established by proof of the same
or less than all the facts required to establish the commission of aggravated assault as
charged in the indictment. The State concedes that deadly conduct is a lesser included
offense of aggravated assault with a deadly weapon; however, it argues that the evidence
adduced at trial did not warrant such a jury instruction here. We agree and overrule the
issue.
A trial court’s determination whether to submit or deny a lesser included offense
instruction is reviewed for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568,
575 (Tex. Crim. App. 2005); Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.
2004). In making our determination, a two-part test is used to determine whether a
defendant is entitled to an instruction on a lesser included offense. See Cavazos v. State,
382 S.W.3d 377, 382–83 (Tex. Crim. App. 2012). The first step, which is a question of
1
In this case, a conviction for deadly conduct would result in punishment for a Class A
misdemeanor. See TEX. PENAL CODE ANN. § 22.05(e) (West 2019).
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law, “compares the elements alleged in the indictment with the elements of the lesser
offense” to determine “if the proof necessary to establish the charged offense also
includes the lesser offense.” Id.at 382.
If the offense is a lesser included offense, the court moves to the second step and
considers whether there is some evidence that would permit a rational jury to find that, if
the appellant is guilty, he is guilty only of the lesser offense. Id. at 383. The second step
is a question of fact based on the evidence at trial. Id. Satisfying the second step
“requires affirmative evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense.” Id. at 385. That is, there must be evidence
“directly germane” to the lesser included offense for the fact-finder to consider before an
instruction on a lesser included offense is warranted. Sweed v. State, 351 S.W.3d 63, 68
(Tex. Crim. App. 2011). Finally, our task is to evaluate the evidence “in the context of the
entire record.” Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005).
The State charged appellant with “intentionally or knowingly threaten[ing] Jerrico
. . . with imminent bodily injury and did use or exhibit a deadly weapon, namely, a firearm
which in the manner of its use or intended use is capable of causing death or serious
bodily injury, during the commission of the assault.” According to the pertinent statutes,
a person commits aggravated assault if he uses or exhibits a deadly weapon while
intentionally or knowingly threatening another with imminent bodily harm. See TEX. PENAL
CODE ANN. § 22.01(a)(2) (West Supp. 2020), § 22.02(a)(2) (West 2019). A person
commits the offense of deadly conduct when he “recklessly engages in conduct that
places another in imminent danger of serious bodily injury Id. § 22.05(a).
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The State concedes the existence of the first prong. Thus, we need only determine
whether the evidence, when evaluated in the context of the entire record, would allow a
rational jury to find appellant guilty only of the lesser offense of deadly conduct.
Appellant asserts that a rational jury could have found that he acted recklessly and
not intentionally or knowingly. A person acts intentionally when it is his conscious
objective or desire to engage in the conduct; Id. § 6.03(a), and a person acts knowingly
when he is aware of the nature of the conduct or that the circumstances exist or when he
is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).
Recklessness, on the other hand, is when the actor is aware of but consciously disregards
a substantial and unjustifiable risk, that the circumstances exist, or the result will occur.
Id. § 6.03(c). Furthermore, the risk “must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s standpoint.” Id. However,
according to the deadly conduct statute, recklessness is presumed if the actor knowingly
pointed a firearm at or in the direction of another irrespective of whether the actor believed
the firearm to be loaded. Id. § 22.05(c). Appellant contends that because he was
intoxicated at the time of the offense, pointed an unloaded weapon in Jerrico’s “general
direction,” and did not give any verbal indication of his intention in displaying the weapon,
that there is some evidence of record that would permit a rational jury to find appellant
guilty only of the lesser included offense. We disagree.
The evidence, viewed in the context of the entire record, illustrated that appellant
became immediately hostile and aggressive toward Jerrico after entering the bar. He told
Jerrico that he did not belong at the bar and then ordered Jerrico to sit down and have a
drink. Jerrico first saw appellant’s handgun as appellant approached. Appellant
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continued forward. The firearm remained directed “towards” and an “arm’s length” from
Jerrico when appellant stopped his approach. Jerrico testified he feared for his life.
Adrianne also testified that she feared for Jerrico’s life when she saw appellant holding
the weapon at Jerrico when appellant stood “arm’s length” from him. That he may have
been intoxicated at the time of the incident “does not negate the elements of intent or
knowledge.” Sakil v. State, 287 S.W.3d 23, 28 (Tex. Crim. App. 2009). Moreover, a
firearm is a deadly weapon per se; TEX. PENAL CODE ANN. § 1.07(a)(17), and when used
in the commission of an aggravated assault by use or exhibition of a firearm pursuant to
§§ 22.01 and 22.02(a)(2), the State is not required to prove the firearm is loaded or
unloaded. See Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (stating that
it matters not whether the firearm was actually capable of causing death for it to be a
deadly weapon); Grant v. State, 33 S.W.3d 875, 881 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d) (stating that there is no requirement that the firearm be loaded for it to be
a deadly weapon).
As for the contention that appellant pointed the gun in Jerrico’s general direction
which entitled him to the presumption of recklessness, we say this. It may be one thing
to point a firearm in one’s general direction when yards away. It is another to point the
handgun at someone standing an “arm’s length” away while acting in an aggressive
manner and informing the target that he is not free to leave.
The situation comes down to this, and it is particular to this case. The very
evidence to which appellant points as entitling him to an instruction on deadly conduct is
the very same evidence which would support a conviction for aggravated assault. Thus,
it does not serve to illustrate, for purposes of obtaining an instruction on a lesser included
offense, that the only offense for which appellant could be convicted is the lesser one.
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See Love v. State, No. 12-18-00239-CR, 2019 Tex. App. LEXIS 7398, at *12–13 (Tex.
App.—Tyler Aug. 21, 2019, pet. ref’d) (mem. op., not designated for publication)
(appellant not entitled to jury instruction on lesser included offense of deadly conduct in
aggravated assault with a deadly weapon case where evidence showed he pointed a gun
at the victims and wanted them to leave); Chaney v. State, No. 14-93-00279-CR, 1994
Tex. App. LEXIS 2753, at *4–5 (Tex. App.—Houston [14th Dist.] Nov. 10, 1994, no pet.)
(not designated for publication) (concluding that one pointing a firearm at another’s head
and pulling the trigger “demonstrates beyond a reasonable doubt that appellant used a
firearm to intentionally threaten the complainant with imminent bodily injury” or
aggravated assault even through the weapon was unloaded). Therefore, we find that
appellant failed to satisfy the second prong of the two-step test as discussed earlier.
We affirm appellant’s judgments for unlawful possession of a firearm by a felon
(76315-A-CR), aggravated assault with a deadly weapon (76316-A-CR), and unlawful
carrying a weapon on alcohol premises (76317-A-CR).
Per Curiam
Do not publish.
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