Daniel Lesso v. State ( 2009 )

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Opinion issued April 9, 2009



In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00745-CR

DANIEL LESSO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1068284

O P I N I O N

A jury convicted appellant, Daniel Lesso, of aggravated assault. After finding that appellant used or exhibited a deadly weapon, the jury assessed appellant's punishment at 20 years in prison. In three points of error, appellant argues that appellant's trial counsel was ineffective and that the evidence presented at trial was both legally and factually insufficient to sustain his conviction.

We affirm.

Background

On March 11, 2006, appellant attempted to patronize the Palace Nightclub, an after-hours club, at 5600 Richmond in Houston, Texas. Appellant and his party were turned away by the security staff of the nightclub. Appellant or a member of appellant's party threatened Abel Diaz, a commissioned security officer, and Frank Cobas, the nightclub manager, and told them the staff had made a mistake in refusing entry to appellant's party and that appellant's party would return.

The complainant, Ryan Gonzales, was employed at the Palace Nightclub as a bouncer. He arrived in the parking lot of the nightclub on March 11, 2006 at 3 a.m. to begin his shift. The complainant sat in his girlfriend's car to change from the clothes he had worn at his other job to the security outfit required by the nightclub. The complainant's outfit consisted of a black shirt with the word "staff" written in bold white capital letters on the back and was identical to the shirts worn by all the nightclub's bouncers except for Diaz. The complainant bore a strong resemblance to Cobas. The complainant left his girlfriend's car to walk toward the nightclub, and she drove out of the nightclub parking lot. As he was walking toward the nightclub, the complainant heard gunshots and started telling the patrons standing in the parking area to escape. As he was standing by a tree and directing foot and car traffic out of the parking area, he saw appellant holding a black gun.

About two minutes after appellant's party left the nightclub, Diaz heard gunshots somewhere outside the nightclub and went out to investigate. Diaz discovered that appellant was shooting at the complainant, and the complainant was trying to find cover behind the many vehicles in the parking lot. Diaz shouted to the complainant to take cover and Diaz then began to fire his .40 caliber Smith and Wesson weapon at appellant. Appellant and his party fired back at Diaz from within a white Chrysler 300 sedan and a maroon Cadillac Escalade. Neither Diaz nor appellant was struck by gunfire.

After appellant and his party drove out of the parking lot of the nightclub, Diaz and other staff members attended to the complainant. The complainant was struck in both legs--twice in the right leg and once in the left leg. Diaz made a tourniquet out of his belt to stem the blood loss from one of the legs. The complainant was taken to Hermann Memorial Hospital where he underwent emergency surgery to take an artery out of his left leg and transplant the artery into his right leg. He stayed in the hospital for five months under an assumed name for security reasons. Because he lacked health insurance, the complainant was sent home without benefit of physical therapy and had to learn to walk again on his own.
Houston Police Department ("HPD") homicide investigator A.R. Mathews was assigned the case several days after it happened. He testified that he met with the owner of the nightclub and watched a videotape taken that night that showed patrons entering or attempting to enter the club. He also reviewed the original offense report, which contained two license plate numbers provided to the officers who arrived at the scene by security guards who were present at the club on the night of the shooting. Mathews identified a license plate number to a white Chrysler 300. He testified that he produced the photo spread after viewing footage from the nightclub's security camera and using the license plate information, towing information, and police records to find a photograph of appellant. He placed appellant's picture in the photo spread alongside five other pictures of "persons with similar characteristics, physical characteristics, race, facial characteristics, [and] facial hair." The other persons in the photo spread were not associated with the assault.

On March 15, 2006, five days after the shooting, Mathews took the photo spread to the complainant, who was recuperating in Memorial Hermann Hospital. He gave the complainant an admonishment that the complainant was "not under any obligation to pick" anyone depicted in the photo spreads. The complainant spent 5 or 10 seconds looking at each photo in the array and picked out appellant as "the man in No. 3." When Mathews asked the complainant if he was certain that appellant was the assailant, the complainant replied, "That's the guy that shot me."

On April 7, 2006, approximately three weeks after the shooting, Mathews returned to the hospital to get a second identification from the complainant because the complainant had been medicated during the initial identification. Mathews showed the complainant the original photo spread, and the complainant again identified the appellant as the person pictured in the third position of the photo spread and stated that appellant was the assailant.

On April 13, 2006, Mathews took the original photo spread used with the complainant to Diaz, while Diaz was working at Sharpstown Mall. Mathews gave Diaz an admonishment not "to pick anybody if you don't see them, but if you see them, point them out." Diaz identified appellant as the person pictured in the third position in the photo spread and told Mathews that appellant was the assailant. Mathews also prepared a couple of other photo arrays in connection with the shooting and showed them to Diaz, but Diaz was not able to identify anyone from these arrays. Mathews did not show the other photo arrays to the complainant.

After obtaining identifications from the complainant and Diaz, Mathews brought the evidence he had gathered to the Harris County District Attorney's office. The district attorney's office brought a charge of aggravated assault, and appellant was arrested on May 23, 2006.

The complainant saw appellant at a nightclub a week prior to trial. The complainant had a brief conversation with appellant without incident.

   Appellant's trial counsel, James Tucker Graves, did not file a motion to suppress the photo spread; nor did he object when the State offered the photo spread for admission into evidence at trial; nor did he object to the complainant's or Diaz's in-court identification of appellant as the assailant. However, he cross-examined the complainant regarding his recollection of appellant's attire at the time of the assault. Graves also cross-examined the complainant about other factors that might have clouded the complainant's identification, including his alcohol consumption prior to the assault, his work schedule prior to the assault, the lighting in the nightclub's parking lot, and time gaps in the complainant's direct testimony. He also cross-examined Diaz about nightclub patrons other than appellant whom Diaz might have seen committing the assault and about other factors that might have clouded the complainant's identification, including Diaz's identification of the car used by appellant immediately after the assault and time gaps in the complainant's direct testimony.

After his conviction, appellant hired new counsel to prepare his motion for new trial and to participate in the trial court's hearing on the motion. Appellant also obtained an affidavit from his original trial counsel, Graves. Graves testified that he failed to file a motion to suppress evidence of the out-of-court identification of appellant with police-produced photo spreads and that he did not object to the in-court identification of appellant because "it was my understanding of the law that if two or more people identify someone from a photo spread that you would not be filing the motion to suppress in good faith." Graves also testified that he "did not believe, in good faith, that a motion to suppress the identification was relevant and . . . this was my trial strategy." He further testified that he did not object to the admission of the photo spread or to the in-court identifications of appellant for the same reasons.

Appellant obtained an affidavit from a legal expert on pretrial eyewitness identifications. The expert, Kathryn Kase, stated it is a "standard of practice" that a defense attorney will file a motion to suppress any pretrial identification evidence to determine "whether the identification was suggestive." Kase stated that it is a "standard of practice that a defense attorney will seek to suppress an identification involving a photo spread when the police officer who showed the photo spread also was the same individual who prepared [the photo spread]." She also stated that it is a "standard of practice that the defense attorney will move to suppress the identification on the basis of taint where the eyewitness was shown, in quick succession, a photo spread containing the defendant and a videotape containing the defendant." The trial court denied appellant's motion for new trial and held that the procedure used to obtain the witnesses' out-of-court identifications was not unduly suggestive. The trial court also held that, even if the procedure was suggestive, it was not so suggestive as "to render the identification unreliable."

Ineffective Assistance of Counsel

In his first point of error, appellant argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments of the United States Constitution.⁽¹⁾

Appellant contends that his trial counsel's representation was constitutionally defective because he failed to file a motion to suppress out-of-court identifications of appellant based on the use of an impermissibly suggestive photo spread by HPD Officer A.R. Mathews and did not object to the admission of the photo spread into evidence at trial or to the in-court identifications of appellant by the complainant and Diaz.

Standard of Review of Ineffective Assistance

We evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). First, the appellant must show that his trial counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the appellant must demonstrate that his counsel's performance deviated from prevailing professional norms. Id. at 688, 104 S. Ct. at

2065. Second, he must show prejudice. Id. at 687, 104 S. Ct. at 2064. To show prejudice, the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. When an appellant fails to satisfy one prong of the Strickland test, the reviewing court need not consider the other prong. Id. at 697, 104 S. Ct. at 2069. We conclude appellant has failed to establish the second prong.

When an ineffective assistance claim alleges that counsel was deficient in failing to move to suppress or to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was inadmissible and that the motion to suppress or the objection would have been granted. Ortiz v. State, 93 S.W. 3d 79, 93 (Tex. Crim. App. 2002) (failure to move to suppress); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (failure to object to evidence). An appellate court reviews a trial court's ruling on a motion to suppress identification under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

Appellant argues that his counsel deviated from professional norms and prejudiced appellant by failing to move to suppress an impermissibly suggestive photo spread and failing to object to the admission of the photo spread and identification testimony. Appellant had the burden of proof to show that the photo array and the identification testimony were inadmissible and, therefore, that the motion to suppress and the objection to testimony would have been granted.

Failure to Move to Suppress Photo Spread or to Object to Admission of Identification Testimony

Relying on the affidavit of Kathryn Kase, appellant's expert on suggestive photographic identification procedures, appellant contends on appeal that it is standard practice for a defense attorney to move to suppress a potentially suggestive out-of-court photographic identification, including an out-of-court identification "involving a photo spread when the police officer who showed the photo spread also was the same individual who prepared it." Appellant further contends, on the same basis, that it is a "standard of practice" for a defense attorney to move "to suppress the identification on the basis of taint where the eyewitness was shown, in quick succession, a photo spread containing the defendant and a videotape containing the defendant." And appellant contends that it is "a fundamental rule of photo array construction" that fillers generally match the original description given by the witness rather than matching the description of a suspect. Thus, by using fillers whose description matched that of appellant, whom Mathews identified from the license plate and security photos from the nightclub, rather than matching the fillers in the array to a description given by the witnesses, from whom no description had been taken, Mathews "violated Appellant's due process rights." In addition, appellant contends, on the basis of the same expert affidavit, that the array was impermissibly suggestive because Mathews knew the identity of the suspect and was therefore "likely to give inadvertent cues" that supported the identification of appellant and increased its likelihood.

Appellant also contends that Mathews' multiple uses of the photo spread made the pre-trial identification procedure impermissibly suggestive. And he contends that Diaz's having viewed appellant at a nightclub a week prior to trial made his in-trial identification of appellant inadmissible for the same reason.

Pretrial Identification

A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Neil v. Biggers, 409 U.S. 188, 197, 93 S. Ct. 375, 381 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 970-71 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995); Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983); Page v. State, 125 S.W.3d 640, 646 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). A pretrial identification procedure is impermissibly suggestive when it would "give rise to a very substantial likelihood of irreparable misidentification," thereby violating a defendant's due process rights. Neil, 409 U.S. at 197, 93 S. Ct. at 381; Jackson, 657 S.W.2d at 127. "[R]eliability is the linchpin in determining the admissibility of identification testimony." Jackson, 657 S.W.2d at 128.

Whether there has been a deprivation of due process is determined from the totality of the circumstances. Jackson, 657 S.W.2d at 127. Thus, an appellate court applies a two-step analysis to determine the admissibility of an in-court identification, asking (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a very substantial likelihood of irreparable misidentification. Page, 125 S.W.3d at 647.

"[T]he factors to be weighed against the corrupting effect of a suggestive identification procedure in assessing reliability are those set out in Neil." Jackson, 657 S.W.2d at 128. To determine the likelihood of irreparable misidentification under the totality of the circumstances, we use several factors, namely, "(1) the opportunity of a witness to see the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the time of the confrontation, and (5) the length of time between the crime and the confrontation." Neil, 409 U.S. at 199, 93 S. Ct. at 382; Jackson, 657 S.W.2d at 130.

Impermissibly Suggestive Pre-Trial Identification Procedure

Mathews testified that he produced the photo spread after viewing footage from the nightclub's security camera and using license plate information, towing information and police records to find a photograph of appellant. He placed appellant's picture in the photo spread with five other pictures of "persons with similar characteristics, physical characteristics, race, facial characteristics, [and] facial hair." Mathews showed the photo spread to the complainant twice while the complainant was in the hospital--once five days after the shooting while the complainant was sedated and again three weeks later when he was not. Mathews showed the same photo spread separately to Diaz a week after showing it to the complainant a second time. Matthews admonished both witnesses that they need not pick anyone depicted on the photo spread. Both witnesses picked appellant as the assailant.

Appellant cites no case law supporting his contentions that using a photo spread is impermissibly suggestive when (1) the photo spread is prepared by the officer who showed it to the witnesses, (2) the fillers in the array match a suspect identified from a surveillance camera photo and a license plate rather than matching a witness's description, or (3) the officer who shows the photo spread knows the identity of the suspect, and we have found none. Nor is there any evidence in the record that the use of any of these procedures influenced the identification of appellant by the complainant or Diaz. Therefore, we decline to find the use of any of these pre-trial identification procedures impermissibly suggestive in this case.

It may be impermissibly suggestive to show a witness the defendant's picture multiple times, if, under the totality of the circumstances, the multiple uses of the photo spread would lead to a "substantial likelihood of irreparable misidentification." See Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) (holding that practice of showing witnesses several photo displays on different occasions, each containing photo of suspect, whom witness had not previously identified, was suggestive procedure); see also Barley, 906 S.W.2d at 33 (cumulative effect of photo spread may be suggestive); but see Page, 125 S.W.3d at 647 (showing photographic array to witnesses in which all persons pictured were African-American, were wearing civilian clothes, had short black hair, and appeared to be similar in age was not impermissibly suggestive). Here, the photo spread was used twice with only one witness--the complainant--who was heavily sedated the first time he was shown appellant's photo. Neither then nor three weeks later, when not sedated, did he hesitate to identify appellant. Diaz was shown the same photo spread as the complainant, in which he immediately identified appellant. He was also shown additional photo arrays in which appellant did not appear, and he did not identify anyone. We decline, therefore, to conclude that the multiple usage of the photo spread with the complainant was impermissibly suggestive under the circumstances of this case.

We conclude that the pretrial identification procedure used in this case was not impermissibly suggestive. Nevertheless, even if we had found the photo spread or its use impermissibly suggestive, we would still conclude that there was no substantial risk of misidentification in this case.

Substantial Risk of Misidentification

To determine the risk of irreparable misidentification from the use of an impermissibly suggestive pretrial identification procedure, we examine the totality of the circumstances under the factors set out in Neil. 409 U.S. at 199, 93 S. Ct. at 382.

(1) Opportunity to view

The complainant and Diaz both saw appellant point a black gun at the complainant and fire it. The complainant testified that appellant was standing under a direct light when appellant began his assault. Diaz viewed appellant in the minutes just before the assault when appellant and his party attempted to enter the Palace Nightclub. Both the complainant and Diaz saw appellant standing next to a white Chrysler 300 sedan, which Mathews later traced to appellant. Diaz also saw appellant holding the gun and shooting at the complainant.

(2) Witnesses' degree of attention

The complainant tried to move away from appellant and take cover as appellant was firing his weapon at him. The complainant took note of appellant's position standing next to the white Chrysler 300 sedan under a direct light in order to facilitate an escape. Diaz tried to shoot appellant to prevent him from further assaults on the complainant. Diaz trained his gaze on appellant to fire his weapon at appellant. Diaz noted that appellant was standing next to a white sedan and fired several rounds at appellant.

(3) Accuracy of description

Neither the complainant nor Diaz gave a description of appellant to Mathews prior to the production of the photo spread. However, Mathews got a description of appellant's vehicle and obtained the license plate number. Mathews also had video images from the nightclub when appellant and his party attempted to enter the nightclub. After getting towing information and police records using the license plate information, Mathews discovered a picture of appellant in police files.

(4) Level of certainty

While he was in the hospital, the complainant twice identified appellant as his assailant after viewing the photo spread produced by Mathews five days after the complainant was shot. Diaz also quickly identified appellant as the assailant after viewing the photo spread. All three identifications were made with certainty.

(5) Time between crime and confrontation

The crime occurred on March 11, 2006. The complainant first viewed the photo spread on March 16, 2006 and again viewed the photo spread on April 7, 2006. Diaz viewed the photo spread on April 13, 2006. There was very little time lapse between the time of the crime and the complainant's first positive identification of appellant as assailant. The trial occurred on August 27, 2007. Between the time of the crime and the time of the trial, the complainant had seen appellant's image twice in the police photo spread and he had seen appellant once in person at a nightclub a week prior to trial. Diaz had only seen appellant's image in the police photo spread one time between the time of the crime and the start of the trial.

(6) Other circumstances

Mathews took statements from nightclub manager Frank Cobas and patrons of the nightclub. Mathews also had video images of appellant attempting to enter the nightclub in the moments prior to the assault. Mathews gave admonishments to both the complainant and Diaz to refrain from making an identification if either witness was uncertain about his identification.

We are unable to say that the pre-trial identification procedure used in this case led to a substantial risk of misidentification.

In-Court Identification

Even if we had concluded that the out-of-court identification procedure was impermissibly suggestive, we would still conclude that in-court identification testimony by the complainant and Diaz was admissible. "[I]t is well established that, even where the pre-trial identification procedure is impermissibly suggestive, in-court testimony of an identification witness will still be admissible as long as the record clearly reveals that the witness' prior observation of the accused was sufficient to serve as an independent origin for the in-court identification." Jackson, 657 S. W. 2d at 130. In Jackson, the Texas Court of Criminal Appeals, quoting Neil, explained:

"It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. [377, ] 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 [(1968)]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence. . . . Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But . . . the admission of evidence of a showup without more does not violate due process."

Jackson, 657 S.W.2d at 127 (quoting Neil, 409 U.S. at 198, 93 S. Ct. at 381-82 (1975)).

Here, the record reveals that the in-court identifications had origins independent of the complainant's and Diaz's having viewed the photo spread and independent of the complainant's having subsequently seen appellant at the nightclub prior to trial. The complainant identified appellant as the assailant definitively while testifying in court by pointing him out to the jury during direct examination. Diaz also quickly and clearly identified appellant as the assailant and pointed him out to the jury during direct examination. Diaz reiterated his identification during cross-examination. Both witnesses testified that they were identifying appellant from having observed him during the commission of the offense and not as a result of the identification procedures. The complainant testified that appellant was standing under a bright light when he began his assault. In addition, Diaz had viewed appellant in the minutes before the assault when appellant and his party attempted to enter the Palace Nightclub. Both the complainant and Diaz saw appellant standing next to a white Chrysler 300 sedan under a direct light. Both the complainant and Diaz saw appellant fire his weapon at the complainant. Both were definite and certain in their identification of appellant as the assailant during their respective in-court identifications. The gap between the time of the crime and the time of trial was not so great as to render the complainant's and Diaz's memories of appellant as faint or suspect. We conclude that the in-court identifications of appellant by the complainant and Diaz had origins independent of their viewing the photo spread and were admissible.

To carry his burden of showing that his trial counsel was ineffective by failing to move to suppress and by failing to object to the in-court identification testimony by the complainant and Diaz, appellant had to show that the evidence was inadmissible and, therefore, that the motion to suppress or the objection to the identification testimony would have been properly granted. See Ortiz, 93 S.W.3d at 93; Jackson, 973 S. W. 2d at 957. We hold that appellant failed to carry his burden. Therefore, he failed to satisfy the first prong of Strickland. See 466 U.S. at 687-88.

We overrule appellant's first point of error.

Legal and Factual Sufficiency

Appellant argues in his second and third points of error that the evidence presented at trial was legally and factually insufficient to sustain his conviction.

  Standard of Review

       To review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and then determine whether a rational juror could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320-21, 99 S. Ct. 2781, 2790 (1979). "In conducting this review, we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision."   Muniz v. State  , 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Evidence that is legally sufficient to support a conviction may not be factually sufficient to support a conviction.   Rollerson v. State  , 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).

"Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence."   Rollerson  , 227 S.W.3d at 724. A factual sufficiency review involves three ground rules.   Lancon v. State  , 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). First, we must recognize that a jury has already passed on the facts and we must accord the jury the proper deference to avoid substituting our judgment for that of the jury.   Id.   at 704-05 (citing   Clewis v. State  , 922 S.W.2d 126 (Tex. Crim. App. 1996)). Second, when we find the facts determined by the jury to be insufficient to affirm a conviction, we must clearly lay out and explain how the evidence supporting the verdict is too weak on its own, or how contradicting evidence greatly outweighs evidence supporting the verdict.    Id.   at 705. Finally, we view all of the evidence in a neutral light when conducting this review.    Id.   We may set aside a verdict only when the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust.    Id.   (citing   Cain v. State  , 958 S.W.2d 404, 406 (Tex. Crim. App. 1997)).

Analysis

A person commits aggravated assault if the person commits assault as defined in Texas Penal Code section 22.01 and also uses or exhibits a deadly weapon during the commission of the assault. See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2008). A firearm is a deadly weapon. Tex. Penal Code Ann. § 1.07(17)(A) (Vernon Supp. 2008). ⁽²⁾ Evidence that an assailant aimed a deadly weapon at a complainant is legally sufficient to sustain an aggravated assault conviction. Anderson v. State, 11 S.W.3d 369, 375-76 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).

Here, the complainant testified that appellant aimed a black firearm at him and started shooting at him. He testified that appellant shot additional rounds and hit him twice in the right leg and once in the left leg. The injuries he suffered from the assault required him to stay in Hermann Memorial Hospital for five months and left him unable to walk until he was able to retrain himself to do so. Diaz testified that he watched appellant fire a black handgun that hit the complainant's leg. Diaz had to fashion a tourniquet to stem the blood loss from the complainant's leg due to the gunshots fired by appellant. In addition, Mathews testified that the nightclub's security camera captured images of appellant and his party at the crime scene at the time of the assault. He also testified that he discovered that appellant drove the white Chrysler 300 after examining towing records and license plate information about the vehicle. Viewing the evidence in a light most favorable to the verdict, a rational juror could have found that appellant committed aggravated assault by causing serious bodily injury to the complainant by using a firearm. Therefore, the evidence presented at trial was legally sufficient to sustain appellant's conviction.

The defense did not present any countervailing evidence to the jury. We must give due deference to the jury since it has already passed on the facts. Lancon, 253 S.W.3d at 704. We cannot say that the evidence presented to the jury is so weak as to render its verdict clearly wrong or manifestly unjust. Id. at 705.

We overrule appellant's second and third points of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Publish. Tex. R. App. P. 47.4.
1. See U.S. Const. amend. VI; see also U.S. Const. amend. XIV.
2. See Tex. Penal Code Ann. § 1.07 (17)(A) (defining "deadly weapon" as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury").