Peavy, Kevin Derek v. State

Affirmed and Opinion filed December 12, 2002 Affirmed and Opinion filed December 12, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01180-CR ____________ KEVIN DEREK PEAVY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1082869 O P I N I O N Appellant, Kevin Derek Peavy, was convicted by a jury of terroristic threat. The trial court assessed his punishment at 180 days in the Harris County Jail, with the sentence suspended, and a $500 fine. Appellant appeals on grounds that (1) the evidence is factually insufficient to support his conviction, and (2) the trial court erred in failing to instruct the jury on the definition of aggravated assault. We affirm. I. Background Appellant owned and operated a dirt yard. On April 18, 2001, Triston Allen, who lived near appellant=s yard, was riding his motorcycle with his two-year-old niece. Allen testified he rode a few feet into appellant=s yard to turn around. When Allen was turning around, appellant came out of the office using racial epithets and yelling, “Get your n----r ass out of my yard. Don=t ever turn in my yard again. I=ll kill you.” Allen picked up speed and left appellant=s yard. Allen asked two women to look after his niece while he went to a tell a friend what had happened. Allen asked his friend to return to appellant=s yard with him so he could apologize to appellant. Allen wanted his friend to accompany him because he was new to the neighborhood and did not know appellant. According to Allen, when he and his friend rode into appellant=s yard, appellant came out of the office with a gun, saying “So you got something for me? I got something for you.” Allen and his friend saw appellant had a gun and left. In his testimony, appellant recounted a different version of events. According to appellant, Allen was riding his motorcycle with a young child at least 30 or 40 feet into his yard. Appellant told Allen to get out of his yard; Allen, however, did not leave, but, instead, “wanted to have a discussion about it, which . . . involved cuss words.” When Allen did not leave immediately, appellant asked him to leave his property and not return. As Allen was leaving, he said he would be back. Appellant went back into his office and a short while later heard the motorcycle. Appellant saw that Allen had returned with another male, not the young child. Appellant grabbed his .45 caliber gun with the intention of defending himself. Appellant testified Allen and his friend threatened him and threatened to burn down the building located on the property. Seeking an address in order to report the incident to the police, appellant attempted to follow them in his pickup truck after they had left. Walter Novak was in his yard when he saw appellant speeding down his street. Novak moved out to the street and signaled for appellant to slow down. Appellant stopped and told Novak he was looking for a couple of individuals with whom he had just had a confrontation. Appellant told Novak he wanted to ask them why they were driving in his yard. Marcus Buenrostro testified he was outside washing his truck with his father, wife, and baby when Allen and a friend came by on a motorcycle and said someone had pulled a gun on them. Buenrostro stayed outside while Allen went into the house and called the police. Buenrostro then saw a pickup truck speeding down the street past his house. Buenrostro testified the truck nearly hit his younger sister who was playing near the street. Buenrostro and his wife, with the baby, pursued appellant in order to get a license plate number. Buenrostro testified he knew appellant was the same person who had pulled a gun on his friends earlier because of their description of appellant=s truck. Appellant, still in his truck, was still talking to Novak when Buenrostro pulled up next to him. Buenrostro got out of his vehicle and asked appellant if there was a problem. According to Buenrostro, appellant said, “I know you know where them f- - -ing n----rs are.” The situation escalated as Buenrostro and appellant continued to exchange words. Novak testified that appellant then picked up a .45 caliber automatic pistol that was laying on the seat next to appellant. Novak testified appellant pointed the gun at the mirror, cocked it, and said, “I ought to put a cap in your ass.” Buenrostro testified appellant was pointing the gun at him and looking directly at him when he made the threatening statement. Buenrostro felt appellant meant he was going to kill him. According to appellant, Buenrostro approached him in a hostile and threatening manner and the confrontation became “more agitated.” Appellant stated he picked up his gun because he felt threatened by Buenrostro. Appellant admitted that he raised his gun straight up in the air, cocked it, and said “I ought to put a cap in your ass,” but claimed he did not point it at Buenrostro. Appellant claimed it was his intention to “diffuse the situation,” not to threaten Buenrostro. Believing that he needed to defend himself because appellant had raised and cocked his gun, Buenrostro foolishly retrieved a claw hammer from his vehicle. Buenrostro was about two and one-half feet from appellant=s truck when Novak stepped in between Buenrostro and appellant and told them to stop. At that point, a police car was approaching the scene and the confrontation immediately ended. II. Terroristic Threat In his first issue, appellant challenges the factual sufficiency of the evidence supporting his conviction for terroristic threat. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). In other words, we must view the evidence “without the prism of ‘in the light most favorable to the prosecution’” and set aside the verdict only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. at 129. Thus, when reviewing factual sufficiency challenges, appellate courts must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Section 22.07(a) provides for the offense of terroristic threat: (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: * * * (2) place any person in fear of imminent serious bodily injury; Tex. Pen. Code Ann. ' 22.07(a)(2) (Vernon 1994). A threat is a “‘declaration of intention or determination to inflict punishment, loss or pain on another, or to injure another by the commission of an unlawful act.’” Cook v. State, 940 S.W.2d 344, 347 (Tex. App.CAmarillo 1997, pet. ref=d) (quoting Black=s Law Dictionary 1480 (6th ed. 1990)). To commit a terroristic threat, the defendant must have the specific intent to place a person in fear of imminent serious bodily injury. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). It is not necessary for the victim to actually be placed in fear of imminent serious bodily injury or for the accused to have had the capability or intention to actually carry out his threat. Id. Rather, the offense is complete when “the accused by his threat sought as a desired reaction to place a person in fear of imminent serious bodily injury.” Id. at 306. A. Intent Appellant argues there was no evidence concerning the definition of “cap” or what appellant meant in using that term, i.e., whether appellant had the intent to place Buenrostro in fear of imminent bodily injury. “A person acts with intent with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” Id. at 305 (citing Tex. Pen. Code Ann. ' 6.03). Intent can be inferred from the defendant=s acts, words, and conduct. Id. Intent is a question of fact for the jury=s determination. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring). Considering the phrase, “I ought to put a cap in your ass,” in the context of the sequence of events, i.e., appellant=s making racial slurs to Allen, coming out of his office with a gun when Allen and his friend were in his yard, speeding through the neighborhood in search of Allen and his friend, arguing with Buenrostro, and raising and cocking a loaded gun, the jury could infer that appellant intended to place Buenrostro in fear of serious bodily injury. B. Immediacy Appellant further argues his threat lacked the immediacy necessary to convey a threat of imminent serious bodily injury. Imminent means “‘near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.’” In re A.C., 48 S.W.3d 899, 904 (Tex. App.CFort Worth 2001, pet. denied) (quoting Black=s Law Dictionary 750 (6th ed. 1990)). The focus of the inquiry should be whether the complainant was afraid of imminent serious bodily injury at the time of the offense. Id. Specifically, appellant characterizes his words as “some vague” future threat that, when combined with his action of pointing the gun at the car mirror rather than at Buenrostro, indicate his true intent was to “deter Buenrostro, not to place him in fear of any imminent harm.” In support of this contention, appellant relies on Bryant v. State, 905 S.W.2d 457 (Tex. App.CWaco 1995, pet. ref=d). In that case, Bryant stated to Raulston, a county commissioner, that if he did not grade the road in front of his house the following day, “he was going to kick [Raulston=s] g-d dBn ass.” Id. at 460. The court of appeals reversed the conviction, holding there was no evidence that Bryant had specific intent to place Raulston in fear at the time he made the statement. Id. at 461. Instead, the threat was conditioned on the non-occurrence of a future event. Id. Appellant=s reliance on Bryant is misplaced. It does not matter whether appellant pointed the gun directly at Buenrostro, the mirror, or in the air; Buenrostro was standing only two and one-half feet from appellant when appellant raised and cocked his gun and made the threat. Appellant placed no conditions on his threat. Moreover, the jury could infer the imminence of appellant=s threat by Buenrostro=s perceived need to retrieve the claw hammer from his own vehicle and by Novak=s stepping between appellant and Buenrostro. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Thus, simply because the defendant presents a different version of the facts does not render the evidence insufficient. Ford v. State, 38 S.W.3d 836, 847 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). The fact that appellant presented a different set of facts does not render the evidence factually insufficient. The jury, as was its right, chose not to believe appellant=s testimony. We find the evidence is factually sufficient to support the jury=s finding that appellant intended to place Buenrostro in fear of imminent bodily injury. Appellant=s first issue is overruled. III. Jury Charge In his second issue, appellant claims the trial court erred in failing to provide either a definition of “aggravated assault” in the instructions or the elements of the offense in the application paragraph of the charge to the jury.[1] Because defense counsel did not object to these omissions, error, if any, does not require reversal unless it is so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We assay the actual degree of harm in light of the entire jury charge, the state of the evidence (including the contested issues and weight of probative evidence), the argument of counsel, and any other relevant information revealed by the trial record. Id. Appellant argues that by failing to either define the term aggravated assault in the definitional portion of the charge or set forth the elements in the application paragraph, the trial court left the jury to speculate on whether appellant had threatened to commit aggravated assault. Appellant relies on Mouton v. State as support. 892 S.W.2d 234 (Tex. App.CBeaumont 1995, pet. ref=d). In Mouton, the court found the trial court erred in neither defining theft nor integrating its essential elements into the application paragraph. Id. at 237. However, observing that each element of a completed theft was proven, the court held any harm resulting from the absence of a definition or application of theft was not so egregious and did not create such harm as to deny the appellant a fair and impartial trial. Id. Similarly, each element of the threat to commit aggravated assault was proven. Aggravated assault requires that the accused commit assault, i.e., intentionally or knowingly threaten another with imminent bodily injury,[2] and (1) cause serious bodily injury; or (2) use or exhibit a deadly weapon during the assault. Tex. Pen. Code Ann. ' 22.02(a) (Vernon 1994). Appellant=s statement, AI ought to put a cap in your ass,@ in combination with raising his gun in the air, as appellant contends, and cocking it close to complainant, satisfies a threat to commit aggravated assault. Therefore, any harm in the omission of the definition of aggravated assault was not so egregious as to deny appellant a fair and impartial trial. Appellant=s second issue is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed December 12, 2002. Panel consists of Chief Justice Brister and Justices Hudson and Fowler. Do Not Publish C Tex. R. App. P. 47.3(b). [1] The information alleges in relevant part that appellant: did then and there unlawfully threaten to commit an offense involving violence, namely Aggravated Assault upon MARCUS BUENROSTRO with the intent to place MARCUS BUENROSTRO in fear of imminent serious bodily injury. The application portion of the jury instructions states: Now, therefore, if you find from the evidence beyond a reasonable doubt, that in Harris County, Texas, KEVIN DEREK PEAVY, hereafter styled the Defendant, heretofore on or about April 18, 2001, did then and there unlawfully threaten to commit an offense involving violence, namely AGGRAVATED ASSAULT upon MARCUS BUENROSTRO with the intent to place MARCUS BUENROSTRO in fear of imminent serious bodily injury, then you will find the Defendant guilty. [2] A person commits assault if he: (1) intentionally, knowingly, or recklessly causes bodily injury to another . . .; (2) intentionally or knowingly threatens another with imminent bodily injury . . .; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believes that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. ' 22.01(a) (Vernon Supp. 2003).