Juan J. Zuniga v. State ( 2009 )

NO. 07-08-0082-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 10, 2009
______________________________
JUAN J. ZUNIGA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,075; HON. BRAD UNDERWOOD, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant was convicted of aggravated assault of a public servant. He seeks to
reverse the conviction by contending that 1) the trial court erred in ordering the jury to
continue to deliberate when it returned with a conflicting verdict, and 2) the evidence was
legally and factually insufficient to sustain the conviction. We affirm the judgment.
Background
On September 15, 2006, Officer Mark Wall was on patrol in Lubbock around 2:00
a.m. when he observed two individuals wearing dark clothing walking down the street and
shielding their faces every time a car passed. He parked his vehicle to observe their
activities and turned on one of his spotlights to do so. At that time, he saw one of the
individuals, who was later identified as appellant, turn to the other person and appear to
mouth the word “police.” The men then turned to enter the alley after which they spoke to
each other again and returned to the sidewalk. As Wall exited his vehicle, the individual
with appellant reached into his waistband, withdrew an object, and began firing at the
squad car. Nine shell casings were found in the area, some from a .40 caliber weapon and
others from a .45 caliber. Appellant later told his girlfriend that he too fired at the officer.
Issue 1 - Conflicting Verdict
One commits aggravated assault by engaging in an assault that causes serious
bodily injury or by using or exhibiting a deadly weapon during an assault. TEX . PENAL CODE
ANN . §22.02(a)(1) & (2) (Vernon Supp. 2009). The State selected the second mode in
accusing appellant at bar of the crime. That is, it charged him with intentionally and
knowingly threatening the officer “with imminent bodily injury and did then and there use
a deadly weapon . . . .” Moreover, in charging the jury at the end of the guilt/innocence
phase of the trial, the trial court told the jury that “[a]n assault is aggravated assault when
it is committed with a deadly weapon.” (Emphasis added). Thereafter, the jury returned
a verdict holding appellant “guilty of the offense of aggravated assault of a public servant
with a deadly weapon, as charged in the indictment.” (Emphasis added). Yet, viz a
“special issue,” it again was asked to answer whether appellant used a deadly weapon in
the assault. This question was initially answered, “[w]e do not.” The trial court viewed the
answers to the guilt question and special issue as conflicting, informed the jury of that, and
directed it to continue deliberating. Eventually, the jury changed its answer to the special
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issue to “[w]e do.” According to appellant, the trial court erred in directing the jury to further
deliberate. We overrule the issue.
It is clear that a verdict must be certain, consistent and definite; it cannot be
conditional, qualified or ambiguous. Reese v. State, 773 S.W.2d 314, 317 (Tex. Crim.
App. 1989). Moreover, a trial court has the duty to reject an informal or insufficient verdict,
call it to the attention of the jury, have the matter corrected with its consent, or send the jury
out again to consider its verdict. Id. at 317. Since a prerequisite to finding appellant guilty
of aggravated assault required it to find he used a deadly weapon, the jury’s answering the
special issue as it did conflicted with its answer to the general question on guilt. Thus, the
trial court acted within its lawful discretion in doing as it did.
Issues 2 and 3 - Sufficiency of the Evidence
Next, appellant claims that the verdict was both legally and factually insufficient to
support the verdict. This is allegedly so because Wall did not see appellant (but only his
acquaintance) draw a weapon, and the trial court did not submit a parties charge. We
overrule the issues.
The record contains evidence that 1) two different caliber of shell casings (.40 and
.45) were found at the crime scene, 2) the casings were fired from two different guns, 3)
appellant’s girlfriend disclosed to the police a conversation she had with appellant wherein
he said he too began firing a weapon, and 4) appellant initially gave a voluntary statement
to police wherein he mentioned information unknown to the public. This evidence, when
viewed in the light most favorable to the verdict, was and is sufficient to allow the jury to
rationally conclude, beyond reasonable doubt, that appellant committed aggravated assault
as charged in the indictment.
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In questioning the factual sufficiency of the evidence, appellant suggests his
colleague could have wielded both guns given the grouping of the shell casings. While it
might be possible for one person to have fired both firearms, the jury also could have
inferred lawfully from the evidence that each man carried and fired one. Furthermore,
appellant admitted that to his girlfriend. And, though his girlfriend not only gave conflicting
statements to police but also tried to blame the shooting on others, her credibility was for
the jury to resolve. In sum, we cannot say that the manner in which it resolved the
credibility issues and ultimately ruled is clearly against the weight of the evidence or
undermines our confidence in the verdict. The evidence is both legally and factually
sufficient.
The judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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