Jheryl Ray Mancillas v. State

NUMBER 13-17-00005-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JHERYL RAY MANCILLAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Jheryl Ray Mancillas appeals his convictions for three counts of
aggravated assault against a public servant, a first-degree felony, see TEX. PENAL CODE
ANN. § 22.02(a)(2), (b)(2)(B) (West, Westlaw through 2017 1st C.S.), and one count of
unlawful possession of a firearm, a third-degree felony. See id. § 46.04(a)(1), (e) (West,
Westlaw through 2017 1st C.S.). The jury returned a guilty verdict and assessed
punishment at twenty-five years’ imprisonment for the aggravated assault counts, and
five years’ imprisonment for unlawful possession of a firearm, with each sentence to be
served concurrently. In two issues, 1 Mancillas complains that (1) his convictions are
supported by legally insufficient evidence; and (2) the trial court erred in denying his
motion to sever the offense of unlawful possession of a firearm. We affirm.
I. BACKGROUND
Mancillas was charged by indictment with three counts of committing aggravated
assault with a deadly weapon against three police officers and one count of unlawful
possession of a firearm. See id. §§ 22.02 (b)(2)(B); 46.04 (a)(1). On the count of
unlawful possession of a firearm, the indictment stated that Mancillas was previously
convicted of the felony offense of possessing a prohibited substance or item in a
correctional facility. See id. § 38.11 (West, Westlaw through 2017 1st C.S.). The trial
court denied Mancillas’s motion to sever the unlawful possession of a firearm count.
Melisa Soliz, Mancillas’s mother, testified that he suffered from schizophrenia and
bipolar disorder. According to Soliz, Mancillas’s mental health was deteriorating due to
the loss of Mancillas’s grandmother, discontinuation of his schizophrenia and bipolar
medications, and the use of synthetic marijuana. Soliz testified that Mancillas was
speaking to his grandmother as if she were still alive, talking to himself, and threatening
1 Mancillas identifies as a separate issue that he was “wrongfully charged with an aggravated
assault simply because he was alleged to exhibit a deadly weapon in the presence of a peace officer.”
However, this issue is not developed separately in the argument section of his brief, and it is not supported
by authority. Therefore, the issue is waived as it is inadequately briefed. See TEX. R. APP. P. 38.1(i).
Nevertheless, we will address the thrust of his argument to the extent it relates to his legal sufficiency
challenge.
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to shoot any police officer that came to his house. As a result, Soliz obtained a mental
health detention warrant from Nueces County Justice of the Peace Robert Balderas.
Judge Balderas instructed Soliz call the police to execute the detention warrant.
After a 911 call, officers Robert Dorsch, Douglas May, and Adam Villarreal from
the Corpus Christi Police Department (CCPD) met Soliz at a restaurant down the street
from Mancillas’s residence. Soliz spoke with Officer Dorsch and informed him of
Mancillas’s psychological problems. She also warned him that Mancillas might have a
gun. Soliz gave Officer Dorsch a key to the residence and explained where Mancillas’s
room was located.
Officer Dorsch testified that he and the other officers went to Mancillas’s house to
serve the mental health detention warrant. When they entered the residence, Officer
Dorsch saw Mancillas retreat down a hallway into a bedroom. Officer Dorsch
approached the room and began negotiating with him to “open up his door and come out.”
Officer Dorsch was the main speaker throughout the negotiation process. During this
time, Mancillas stated that he possessed a gun. Officer Dorsch convinced Mancillas to
place the gun in the closet. After over an hour passed, Officer Dorsch gained entry to
the room. He instructed Mancillas to remove his hand from his pocket. When Mancillas
removed his hand, Officer Dorsch saw that he was holding a gun, which he pointed at
Officer Dorsch and the other two officers. Officer Dorsch characterized Mancillas’s
actions as “fanning” the gun, “like he didn’t know who to shoot it at.” He then heard a
loud popping sound which caused him and the two other officers to fire their weapons at
Mancillas, striking him in his hand, elbow, and stomach. Officer Dorsch and the other
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officers then administered first aid to the injured Mancillas.
Officer May testified that he was in a bathroom across the hall from Officer Dorsch
and Mancillas. Officer May heard Officer Dorsch state, “Don’t do it. Don’t do it. Don’t
do it.” He then entered the room where he saw Mancillas with a gun “up in the air,
pointing at” Officers Dorsch and Villarreal. Officer May heard gunfire, and he responded
by shooting Mancillas with his rifle. Officer May later recovered Mancillas’s gun and
removed it from the area.
Officer Villarreal testified that he was located in a bedroom across the hallway from
Officer Dorsch and Mancillas. After Officer Dorsch entered Mancillas’s room, Officer
Villareal heard him say, “Let me see your hands.” Officer Villarreal then entered the
room and observed Mancillas holding a small caliber pistol. Mancillas then took a
“bladed stance,” while bringing the gun up. Officer Villarreal responded by firing his
weapon at Mancillas, who fell on the bed. Officer Villarreal saw that Mancillas was
bleeding and placed a tourniquet on his arm. He also applied pressure with a bandage
to another wound.
Cara Shrader, a CCPD crime scene investigator, examined the firearm recovered
from the residence. She testified that there was a live round with a “strike mark” in the
chamber of the gun. She explained, “when you shoot it, the fire pin will strike the back
of the cartridge, which becomes a casing, and it leaves a primer mark on it, indicating that
it has been shot[.]” She believed this indicated “a misfire or the gun . . . goes wonky and
just doesn’t shoot[.]”
David Curtiss, a CCPD firearms examiner, identified Mancillas’s gun as a Taurus
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.22 caliber semi-automatic pistol. Curtiss stated that a live round was found in the
chamber of the weapon and that the round had “a slight firing pin impression made right
across the headstamp.” When asked why the round was not fired, Curtiss answered as
follows:
The firearm could have malfunctioned. The ammunition could have been
defective. There could have been something that was blocking the firing
pin from striking the breached face of the cartridge. Those are the only
three reasons that I can think of[.]
During both opening and closing statements, Mancillas, through his attorney,
conceded that he unlawfully possessed a firearm. Further, the State presented evidence
that Mancillas could not possess a firearm due to a prior conviction for the offense of
possessing a prohibited substance or item in a correctional facility. The jury found
Mancillas guilty on all counts. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, Mancillas challenges the legal sufficiency of the evidence
supporting his convictions for aggravated assault. 2
A. Standard of Review and Applicable Law
When examining the legal sufficiency of the evidence, we consider the combined
and cumulative force of all admitted evidence in the light most favorable to the conviction
to determine whether, based on the evidence and reasonable inferences therefrom, any
rational trier of fact could have found each element of the offense beyond a reasonable
2 Mancillas presents no argument concerning the sufficiency of the evidence supporting his
conviction for unlawful possession of a firearm. Therefore we will not address this contention. See id.
Further, Mancillas purports to challenge both the legal and factual sufficiency of the evidence. However,
the Texas Court of Criminal Appeals has abolished factual sufficiency review. See Howard v. State, 333
S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim.
App. 2010) (plurality op.)). Therefore, we will address only Mancillas’s legal sufficiency challenge.
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doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805,
808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the
jury as factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw
reasonable inferences from facts. Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d).
We measure the legal sufficiency of the evidence against the elements of the
offense as defined by a hypothetically correct jury charge for the case. Byrd v. State,
336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Id. (internal quotation marks
omitted).
A person commits an assault if the person “intentionally or knowingly threatens
another with imminent bodily injury[.]” TEX. PENAL CODE ANN. § 22.01(a)(2) (West,
Westlaw through 2017 1st C.S.). The Texas Penal Code defines “bodily injury” to mean
“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West,
Westlaw through 2017 1st C.S.). It is well settled that a threat may be communicated by
action, conduct, or words. See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim.
App. 1984); Jones v. State, 500 S.W.3d 106, 113 (Tex. App.—Houston [1st Dist.] 2016,
no pet.). “[T]here must be some evidence of a threat being made to sustain a conviction
of assault by threat.” Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006). The
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crucial inquiry is “whether the assailant acted in such a manner as would under the
circumstances portend an immediate threat of danger to a person of reasonable
sensibility.” Id. at 347.
An assault is elevated to an aggravated assault if the person “uses or exhibits a
deadly weapon during the commission of the assault.” TEX. PENAL CODE ANN.
§ 22.02(a)(2). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A) (West,
Westlaw through 2017 1st C.S.); Williams v. State, 502 S.W.3d 262, 270 (Tex. App.—
Houston [14th Dist.] 2016, pet. ref’d). An aggravated assault is a first-degree felony if it
is committed “against a person the actor knows is a public servant while the public servant
is lawfully discharging an official duty[.]” TEX. PENAL CODE ANN. § 22.02(b)(2)(B).
B. Analysis
Mancillas argues that “[b]y only pointing a gun, at most [he] should have been
charged and/or convicted of Assault against a Peace Officer[.]” Mancillas maintains that
“[i]n order for [him] to be convicted of Aggravated Assault, the [S]tate would have to prove
that [he] pointed his gun and fired shots.” Accordingly, he argues the evidence is legally
insufficient because “the prosecution presented no evidence that [Mancillas] fired any
shots.” We disagree.
Texas courts, including this one, have consistently held that the act of pointing a
loaded gun at an individual is, by itself, threatening conduct which supports a conviction
for aggravated assault. See Jones, 500 S.W.3d at 113; Fagan v. State, 362 S.W.3d 796,
799 (Tex. App.—Texarkana 2012, pet. ref’d); Sosa v. State, 177 S.W.3d 227, 231 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); Cantu v. State, 953 S.W.2d 772, 775 (Tex.
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App.—Corpus Christi 1997, pet. ref’d); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.
App.—Amarillo 1997, no pet.); Preston v. State, 675 S.W.2d 598, 601 (Tex. App.—Dallas
1984, pet. ref’d). The evidence viewed in the light most favorable to the verdict
establishes that Mancillas pointed a loaded firearm at the responding officers. One
officer described Mancillas’s actions as “fanning” the gun, “like he didn’t know who to
shoot it at.” Officer Dorsch described hearing a popping sound, which is consistent with
other evidence that Mancillas’s gun misfired. A rational jury could have concluded from
this evidence that Mancillas “acted in such a manner as would under the circumstances
portend an immediate threat of danger to a person of reasonable sensibility.” Olivas,
203 S.W.3d at 347; see TEX. PENAL CODE ANN. § 22.01(a)(2). Mancillas’s use of a per
se deadly weapon—a firearm—during the assault elevates the offense to an aggravated
assault. See TEX. PENAL CODE ANN. § 22.02(a)(2). And it is undisputed that the
aggravated assault was committed against public servants lawfully disgorging official
duties. See id. § 22.02(b)(2)(B).
We conclude that the evidence is legally sufficient to support Mancillas’s
convictions for aggravated assault of a public servant. See Jackson, 443 U.S. at 319;
Ramsey, 473 S.W.3d at 808. We overrule Mancillas’s first issue.
III. SEVERANCE
By his second issue, Mancillas argues that the trial court erred in denying his
motion to sever the unlawful possession of a firearm offense.
A. Standard of Review and Applicable Law
Section 3.04 of the penal code allows a defendant to obtain a severance of most
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criminal charges that have been consolidated for trial under section 3.02. See TEX.
PENAL CODE ANN. §§ 3.02, 3.04 (West, Westlaw through 2017 1st C.S.). Unless the
charges fall into one of the statutory exceptions, none of which are relevant here, the
defendant’s right to a severance is “absolute” and the trial judge has no discretion to deny
the motion. Werner v. State, 412 S.W.3d 542, 546–47 (Tex. Crim. App. 2013). This
rule reflects two concerns: that the jury will convict a defendant because of his prior or
subsequent misdeeds, or that the jury will infer that because the accused committed other
crimes, he probably committed the charged offense. Id. at 547.
If the trial court erroneously denied a motion to sever, we review the record for
harm under the Rule 44.2(b) standard for non-constitutional error. Id. Under this
standard, appellate courts must disregard the error unless it affected the appellant’s
substantial rights. TEX. R. APP. P. 44.2(b); Werner, 412 S.W.3d at 547. Neither party
has the burden to demonstrate harm; “instead, we assess harm after reviewing the
entirety of the record, including the evidence, jury charge, closing arguments, voir dire,
and any other relevant information.” Id. (citing Schultz v. State, 63 S.W.3d 442, 444–45
(Tex. Crim. App. 2001)). We will not overturn a criminal conviction for non-constitutional
error if, after examining the record as a whole, we have fair assurance the error did not
influence the jury, or influenced the jury only slightly. Barshaw v. State, 342 S.W.3d 91,
93 (Tex. Crim. App. 2011).
In determining harm resulting from the failure to sever offenses, the overlap of
evidence is the most important factor. Werner, 412 S.W.3d at 549. When there is no
overlap of evidence between the two charges, the error is most likely to be harmful. Id.
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at 548. When there is a substantial overlap of evidence between the two charges, the
failure to sever is most likely to be harmless. Id. at 548–49. In other words, the State
should not be permitted to try “an ‘apples’ offense along with an unrelated ‘oranges’
offense in the hope that the jury [will] find the defendant guilty of being a generally bad
sort.” Id. at 548. Another relevant factor to take into consideration is whether the
defendant’s trial strategy would have been different if the severance was granted. See
id. at 548 n.35; Scott v. State, 235 S.W.3d 255, 261 (Tex. Crim. App. 2007).
B. Analysis
We agree with Mancillas that the trial court erred when it denied his request to
sever the offense of unlawful possession of a firearm by a felon. Mancillas made a timely
request which apprised the court that he wished to invoke his right to a severance, and it
was error for the trial court to deny it. See Werner, 412 S.W.3d at 546.
Having found error, we begin our harm analysis by assessing the extent that the
evidence supporting the charges overlapped. See id. at 547 (describing the overlap of
evidence as “the most important factor” in this analysis). The charges arose from the
same criminal transaction, and each count required proof that Mancillas was in
possession of a firearm. Therefore, this is not a case where there was no overlap
between the charges. However, to prove unlawful possession of a firearm, the State
was required to present evidence of Mancillas’s prior felony conviction. 3 To meet its
3 A person who has been convicted of a felony commits an offense if he possesses a firearm “after
conviction and before the fifth anniversary of the person’s release from confinement following conviction of
the felony or the person’s release from supervision under community supervision, parole, or mandatory
supervision, whichever date is later[.]” TEX. PENAL CODE ANN. § 46.04(a)(1) (West, Westlaw through 2017
1st C.S.).
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burden, the State presented evidence that Mancillas was previously convicted of a felony
offense under penal code section 38.11, entitled “Prohibited Substances and Items in
Correctional Facility.” See TEX. PENAL CODE ANN. § 38.11. Had this count been
severed, the jury hearing the aggravated assault counts would not have heard evidence
of Mancillas’s prior conviction. We note, however, that very little of the trial was devoted
to Mancillas’s prior conviction. The trial court admitted the judgment into evidence. But
other than a fleeting reference during closing argument, the State presented no further
evidence or testimony concerning the details and existence of the prior conviction. There
is nothing in the record to suggest that the jury convicted appellant of aggravated assault
simply because he was a “bad sort.” Cf. Llamas v. State, 12 S.W.3d 469, 471–72 (Tex.
Crim. App. 2000) (concluding that appellant suffered reversible harm from trial court’s
failure to sever drug charge from unrelated motor-vehicle charge because, among other
factors, the jury expressed concerns that evidence relating to the drug charge would color
their inquiry into the defendant’s guilt for the motor-vehicle charge).
Further, Mancillas does not argue that his defensive strategy might have been
different had the charges been severed. See Werner, 412 S.W.3d at 548 n.35
(considering lack of evidence regarding defensive strategy in considering whether
appellant had shown harm in denial of severance). Finally, we observe that the evidence
of Mancillas’s guilt on the aggravated assault counts was overwhelming. See id. at 549–
51 (“Overwhelming evidence of guilt is a relevant factor in any Rule 44.2(b) harm
analysis[.]”). As set out in our review of the sufficiency of the evidence, the State
presented evidence, including corroborating testimony from three officers, establishing
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that Mancillas pointed a loaded gun at the officers and attempted to fire the weapon.
There was no evidence presented contradicting the officers’ account.
This case does not present a scenario where an “apples” offense was tried along
with an unrelated “oranges” offense. See id. at 548. Having examined the record, we
have fair assurance that the error did not influence the jury, or influenced the jury only
slightly. See Barshaw, 342 S.W.3d at 93. Accordingly, we conclude that the error was
harmless. We overrule Mancillas’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of July, 2018.
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