Ardie Dean Fisher v. State ( 2005 )

                             NO. 12-04-00353-CR

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

ARDIE DEAN FISHER,                                  §                 APPEAL FROM THE 173RD

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                       §                 HENDERSON COUNTY, TEXAS

                                                     MEMORANDUM OPINION

Appellant Ardie Dean Fisher was convicted of aggravated assault with a deadly weapon and sentenced to thirty-five years of imprisonment.  In two issues, Appellant contends that the evidence was legally and factually insufficient to support his conviction.  We affirm.

                                                               Background

Appellant was indicted for aggravated assault with a deadly weapon, a second degree felony.  See Tex. Pen. Code Ann. § 22.02(a)(2), (b) (Vernon Supp. 2005). The indictment contained an enhancement paragraph, which elevated the offense to a first degree felony.  See id. § 12.42(b). Appellant pleaded “not guilty,” and the case proceeded to a jury trial.

The evidence at trial showed that Appellant and his girlfriend, Erica Sanders, lived together at the Victoria Place Apartments in Athens, Texas.  On August 15, 2003, Sanders called Appellant on the telephone, accusing him of infidelity.  When Sanders made the call, she was at her job at a local nursing home, and Appellant was at their apartment.

Appellant was enraged by Sanders’s accusation and began destroying furniture in the apartment while he was still on the telephone with Sanders.  Sanders heard the noise and left work to go to the apartment.

When Sanders arrived, Appellant began assaulting her in front of Michael Tilley and other men who were in the apartment.  Appellant grabbed Sanders and pulled her into the back bedroom of the apartment. Sanders observed at this time that all of her furniture had been destroyed.  Once they were in the bedroom, Appellant loaded a .12 gauge sawed-off shotgun, put it in Sanders’s mouth, and told her to “suck it.” Sanders stated during her testimony that she was afraid and believed Appellant was about to kill her.  During the incident with the shotgun, Appellant said to Sanders, “You’re not worth me killing.  I’m just going to torture you until you wish and think you was dead.”            

After keeping the shotgun in her mouth for five minutes, Appellant told Sanders to get undressed.  She pleaded with him not to make her take off her clothes.  However, Appellant did not relent, and Sanders disrobed.  Appellant then dragged her back to the front room where the other men were sitting.  In front of these men, Appellant beat her, spit on her, and poured water on her.  None of the men assisted Sanders during the assault. Appellant then dragged her from the front room back to the bedroom where he tied a blue bandana around Sanders’s mouth and beat her with his hands, his feet, and boards from a broken dresser. Sanders stated that some time later she grabbed some of her clothes, left the apartment through an open door, and ran to the manager’s office.  Once inside the manager’s office, the people there locked the door, and the manager called the police.

Michael Tilley, one of the men in the apartment, testified that he saw Appellant drag Sanders to the bedroom and heard Appellant telling Sanders to put “it” in her mouth. He also heard the sound of Appellant “cocking” the gun.  Tilley stated that although he could not see what happened in the bedroom, he could hear the sound of the gun and heard Sanders pleading and crying.  Tilley also heard Appellant tell Sanders to “get naked.”

Athens police officer Jimmy Hugghins testified that when he arrived at the apartment complex office, Sanders was visibly shaken.  He stated that Sanders was “upset, crying from the assault, not fully clothed and had swollen cheeks and dried blood in the corner of her mouth.” Sanders told him that the assault lasted about an hour.  When the officer went to the apartment, Appellant was no longer there.  Hugghins observed extensive damage to the contents of the apartment.  Although a shotgun was found in the apartment, it was not the shotgun that Sanders said Appellant used during the assault.  A warrant was issued for Appellant’s arrest, and he was later taken into custody for aggravated assault with a deadly weapon.

The jury found Appellant guilty of aggravated assault with a deadly weapon and sentenced him to thirty-five years of imprisonment.  This appeal followed.

                                       Legal Sufficiency of the Evidence

In his first issue, Appellant complains that the trial court erred by denying his motion for directed verdict and argues that the evidence is legally insufficient to support his conviction.  Specifically, Appellant contends that there was an absence of proof that a deadly weapon was used in the commission of the assault.  The State counters that the evidence was legally sufficient to support the jury’s verdict.  Appellant also argues that the evidence was insufficient to show serious bodily injury. Because the infliction of serious bodily injury was not an element of the offense charged, evidence of that element was not required for conviction. Therefore, we do not address the argument.

A challenge to the denial of a motion for an instructed verdict is actually a challenge to the legal sufficiency of the evidence.  Jackson v. State, 50 S.W.3d 579, 597 (Tex. App.–Fort Worth 2001, pet. ref’d).  Consequently, we address Appellant’s first issue as a legal sufficiency challenge.

Standard of Review

In reviewing the legal sufficiency of the evidence, we must determine, by viewing the evidence in the light most favorable to the jury’s verdict, whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged.  See Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  The evidence is examined in the light most favorable to the jury’s verdict.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

Aggravated Assault with a Deadly Weapon

A person commits aggravated assault with a deadly weapon if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault.  Tex. Pen. Code Ann. §§ 22.01 (a)(1), 22.02(a)(2) (Vernon Supp. 2005).             A person uses a deadly weapon during the commission of an offense if “the deadly weapon was employed or utilized in order to achieve its purpose.”  Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). A person “exhibits” a deadly weapon when “the weapon was consciously shown or displayed during the commission of the offense.”  Id.  Use of a deadly weapon extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.  Id.  Merely exposing a deadly weapon during the course of a criminal transaction is sufficient to prove the weapon was “used or exhibited” during the course of the transaction.  See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (evidence was sufficient to prove a knife was “used” during a robbery even though it was only partially exposed).  A firearm is a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2005). 

In the case at bar, the State presented the testimony of Sanders, the victim of the offense.  She testified that she was assaulted by Appellant, who used a .12 gauge sawed-off shotgun during the commission of the assault.  She described the weapon’s location as “in the closet” of the bedroom where she and Appellant slept.  When asked about the incident, Sanders stated that “he loaded up the gun and put it in my mouth” after Appellant dragged her to the back bedroom.  She said he shoved it down her throat until she gagged. During her testimony, she described the gun as a short, single barrel sawed-off shotgun.  When asked about a camouflage shotgun that was later found in the apartment, she stated that it was not the gun used on her.

Michael Tilley also testified as an “eyewitness” to the beating, but did not actually observe the sawed-off shotgun Sanders described.  He stated that he never saw Appellant remove a shotgun from the apartment. Tilley testified that he saw Appellant drag Sanders to the bedroom and could hear Appellant telling Sanders to put “it” in her mouth.  He also heard the sound of Appellant “cocking” the gun and saw Appellant wearing a wristband with shotgun shells in it.

Officer Hugghins testified that no firearm fitting Sanders’s description of the gun used in the assault was ever found in the apartment.  He testified that the only weapon found at the residence was a camouflage shotgun.

Appellant argues that his conviction should be overturned because there is no corroboration of Sanders’s testimony regarding the weapon.  It is well established that a conviction may be based on the testimony of a single eyewitness.  Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Therefore, this argument is without merit. Moreover, in addition to Sanders’s testimony about the weapon, the jury also heard Tilley’s testimony, which indicated that Appellant used a weapon during the assault.

Based upon our review of the record, we conclude that a rational trier of fact could have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support Appellant’s conviction.  Appellant’s first issue is overruled.

                                                       Factual Sufficiency

In his second issue, Appellant contends that the evidence was factually insufficient to support his conviction.

Standard of Review

As the court of criminal appeals has explained, "There is only one question to be answered in a factual sufficiency review:  Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?”  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  There are two ways in which the evidence may be factually insufficient.  Id.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard of proof could not have been met.  Id. at 484-85. 

In applying this standard, we consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). 

Analysis

In challenging the factual sufficiency of the evidence, Appellant complains, as he did in his legal sufficiency challenge, that the testimony at trial was not sufficiently consistent to support the jury’s verdict.  Specifically, Appellant argues that Sanders’s testimony was inconsistent with the evidence at the scene and that Tilley’s testimony does not support Sanders’s claim that a weapon was used in the commission of the assault. Appellant also contends that the jury’s decision to accept Sanders’s version of the facts is unreasonable.

We do not perceive any inconsistencies in the record that render the evidence factually insufficient to support a finding that Appellant used a deadly weapon (a firearm) during the assault.  As noted earlier, the weapon Sanders described was never located by law enforcement. Testimony that the weapon was never located is evidence that tends to disprove the use of the weapon described by Sanders.  However, the following exchange between Appellant’s attorney and Tilley on cross examination relates to whether Appellant used a weapon:

Q:         Okay. But you really didn’t see it, so you don’t know for a fact whether or not a gun was back there, do you?  You didn’t see it?

A:         Yeah, there was a gun back there.

Q:         Well, how do you know that?

A:         He had a wristband on his arm that you hold the shells in.

Q:         He had a wristband on his arm?

A;         Yes.

Q:         During this assault?

A:         Yes.

Q:         So you’re saying during this assault [Appellant] had a wristband on with shotgun shells in it?

A:         Yeah, had – it’s – that you hold shells in.

This testimony supports, rather than conflicts with, Sander’s testimony regarding Appellant’s use of a weapon.

Based upon our review of the record, we hold that the evidence supporting the jury’s finding that Appellant used a deadly weapon during the assault is not too weak to support the finding nor is the contrary evidence strong enough that the State could not have met its burden of proof.  Consequently, we hold that the evidence is factually sufficient to support the jury’s finding that Appellant used or exhibited a deadly weapon during the assault. As such, the evidence is factually sufficient to support Appellant’s conviction.  Appellant’s second issue is overruled.

                                                                 Disposition

Having overruled Appellant’s first and second issues, the judgment of the trial court is affirmed.

 DIANE DEVASTO   

Justice

Opinion delivered November 16, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                             (DO NOT PUBLISH)