Calvin Earl Gould Jr. v. State

Opinion issued January 15, 2009 In The Court of Appeals For The First District of Texas NO. 01-07-00958-CR NO. 01-07-00959-CR CALVIN EARL GOULD, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause Nos. 1105783 and 1105784 MEMORANDUM OPINION A jury convicted appellant, Calvin Earl Gould, Jr., of aggravated assault and unlawful possession of a firearm. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 46.04(a)(1) (Vernon Supp. 2008). The cases were consolidated for trial. The trial court assessed punishment at 18 years in prison for aggravated assault and 15 years in prison for unlawful possession of a firearm. In a single point of error, appellant challenges the factual sufficiency of the evidence supporting his convictions. We affirm. Background On February 24, 2007, appellant attended a gathering with his girlfriend, Sabrina O’Bryant, and their baby at the home of Sabrina’s sister and brother-in-law, Aretha and Lee Pittman. Aretha testified that she was initially happy to have appellant in her house but that appellant and Sabrina began to argue as the day went on. At one point, Aretha saw Sabrina come out of a bedroom “shaking” and “crying” with swelling in her face and an “abrasion” under her eye. Aretha testified that Sabrina said that appellant “beat [her] up.” As Aretha and Sabrina were talking, appellant came out of the bedroom, pulled a gun from the back of his jeans, and began shouting obscenities and threats. After initially pointing the weapon at Sabrina, appellant pointed it at Aretha for “maybe a second.” Aretha testified that she “thought [she] was going to die that night.” According to Aretha, appellant then “pointed [the gun] at everybody around the room” and “said he was going to kill everybody” in the room. Appellant demanded a ride home, and Aretha’s husband, Lee, agreed to take him. Appellant took his baby, and Lee dropped them off at appellant’s house. Lee testified that he was hoping to “calm [appellant] down” because appellant was “saying he was going to shoot the place up.” Aretha placed a call to 911. Appellant was arrested on warrants stemming from the incident approximately a month later. In addition to unlawful possession of a firearm, appellant was charged with aggravated assault for pointing the gun at Aretha. At trial, Aretha’s testimony that appellant turned the gun on her was corroborated by Lee and by Aretha’s brother, Roosevelt O’Bryant, both of whom were in the room when the incident occurred. During the punishment phase of his trial, appellant admitted his guilt. Factual SufficiencyAppellant challenges the factual sufficiency of the evidence supporting his conviction. Standard of Review When conducting a factual sufficiency review, we view all of the evidence in a neutral light. See Brown v. State, 212 S.W.3d 851, 859 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999)). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. See Brown, 212 S.W.3d at 859 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. See Brown, 212 S.W. 3d at 859 (citing Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Brown, 212 S.W.3d at 859 (citing Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. Discussion A person commits the offense of aggravated assault when he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon while doing so. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2008). A person commits the offense of unlawful possession of a firearm when he possesses a firearm after he has been convicted of a felony and before the fifth anniversary of his release from confinement following conviction of the felony. See id. § 46.04(a)(1) (Vernon Supp. 2008). “Possession” means actual care, custody, control, or management. See id. § 1.07(39) (Vernon Supp. 2008). During the guilt/innocence phase of trial, appellant stipulated that he was convicted of the felony offense of Delivery of a Controlled Substance on or about January 21, 2003. During the State’s case, three witnesses testified that appellant pointed a firearm in a threatening manner at Aretha Pittman. Appellant contends on appeal that the witnesses’ collective testimony is not credible because it contains inconsistencies and “[a]t least one of the state’s witnesses had prior felony convictions.” He also points out that no gun was recovered or found in his possession. Appellant does not cite to any examples in the record to bolster his claim that the testimony was inconsistent and thus not credible. Regardless, the jury is the sole judge of the credibility of witnesses and may choose to believe some testimony and disbelieve other testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (citing Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000)). We afford almost complete deference to a jury’s evaluation of credibility. See Lancon, 253 S.W.3d at 705 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). Accordingly, the jury could have believed the testimony of the State’s witnesses, and we give due deference to the jury’s determination that those witnesses were credible. Appellant’s reliance on Ward v. State and Drost v. State is misplaced. In Ward, the Waco Court of Appeals reversed an aggravated robbery conviction even though three eyewitnesses identified the defendant as the robber. 48 S.W.3d 383 (Tex. App.—Waco 2001, pet. ref’d). However, the defendant in Ward produced four alibi witnesses and a time card from his employer showing that he was at work when the robbery occurred, and one eyewitness identified another person as the robber. See id. at 389-91. In the instant case, appellant produced no evidence controverting the testimony of the State’s witnesses, and all three witnesses identified appellant as the man holding the firearm. In Drost v. State, the El Paso Court of Appeals reversed a conviction for theft of more than $500 but less than $1,500 on the ground that the evidence of the value of the property was factually insufficient. 47 S.W.3d 41 (Tex. App.—El Paso 2001, pet. ref’d). The Drost court noted that the witness called by the State to establish the fair market value of the stolen property contradicted himself as to the property’s value and that the State produced no other evidence of that element of the crime. Id. at 45-46. The witness also failed to exclude the cost of installation from his estimate of the stolen property’s replacement value as required by the Texas Penal Code. Id. Here, the testimony of the State’s witnesses, along with appellant’s stipulation, properly established every element of the crimes. The witnesses’ statements were also internally consistent and consistent with each other on the question of whether appellant aimed a firearm at Aretha Pittman in a threatening manner. Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury’s credibility determinations, we conclude that the evidence supporting the verdict is not too weak to support the jury’s finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. See Pena v. State, 251 S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Accordingly, we overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Bland Do not publish. Tex. R. App. P. 47.2(b).