in the Matter of F. D. M.

Opinion issued April 12, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00426-CV

———————————

In the

Matter of F.D.M., a minor

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2010-05600J

MEMORANDUM OPINION

A

jury found beyond a reasonable doubt that F.D.M. committed the offense of

aggravated assault with a deadly weapon, and the trial court sentenced F.D.M.

to the custody of the Texas Youth Council. In a single issue, F.D.M. contests

the legal and factual sufficiency of the evidence to support the jury’s

finding. We affirm.

Background

A.

Aguga is a corrections officer for the Texas Department of Criminal Justice who

earned extra money in his off-hours by selling ice cream from an ice cream

truck. Late one afternoon while he was driving the ice cream truck, a group of

teenagers flagged Aguga down and began asking him about his ice cream. One or

two of the teenagers disappeared around the back of the truck, while Aguga

continued answering questions for the other teenagers. Aguga heard a shot on

the other side of the truck. He turned and was struck by a bullet in the neck.

The teenager on the other side of the truck shot him a second time, in the

shoulder. All of the teenagers then fled the scene.

Aguga

was hospitalized for a month and had to have multiple surgeries as a result of

his gunshot wounds. While he was in the hospital, and again at trial, Aguga

identified F.D.M. as the teenager who had the gun and who shot him. He

testified that none of the other teenagers was armed.

A.

Craft lives in the neighborhood where Aguga was shot. She was entering the

neighborhood as Aguga was exiting the ice cream truck, bleeding from the

gunshot wounds. She witnessed the teenagers around the truck start running

away, but she was unable to identify any of them. She testified that one of the

teenagers was on a small bike.

C.R.

was also in the neighborhood when Aguga was shot.

C.R. testified that he was in the neighborhood that afternoon spending time

with friends when they ran into F.D.M. C.R. testified that when he approached

F.D.M., F.D.M. shooed him away and told him that he was going to rob the ice

cream man. C.R. thought that F.D.M. was joking. C.R. testified that he

subsequently heard two pops that sounded like firecrackers. He then saw Aguga

screaming for help. He also testified that he saw F.D.M. and another

acquaintance jogging away from the ice cream truck.

J.B.

was with C.R. when they encountered F.D.M. He testified that F.D.M. waived them

away because “he was about to do something bad.” He further testified that he

witnessed F.D.M. shoot Aguga and run away. He stated that he had seen F.D.M.

with a gun several days earlier. J.B. identified the gun F.D.M. used in the

shooting as a .32-caliber and testified that he had seen it at F.D.M.’s house

days before the shooting. J.B. testified that he was not wearing his glasses

when he witnessed the shooting but that he knew F.D.M. and could recognize him

without glasses.

R.T.

also testified about the day of the shooting. He testified that he was on his

bike, talking to the ice cream man when F.D.M. approached. According to R.T.,

F.D.M. asked for a dollar, stating that he would pay R.T. back because he was

“fixing to get the ice cream man.” R.T. testified that F.D.M. pulled out a gun

when he said this, and R.T. understood him to be saying that he was going to

shoot the ice cream man. R.T. testified that he saw F.D.M. approach the side of

the ice cream truck and heard shots but did not see the shooting. R.T. also

testified that after the shooting F.D.M. threatened to beat him up if he called

the police.

Deputy T. Pasket

was the first officer on the scene after the shooting. He testified that they

recovered two shell casings at the scene. Sergeant R. Minchew, to whom the case

was assigned, testified that the shell casings were from a .32-caliber gun. Sergeant

Minchew also testified that Crime Stoppers received

an anonymous tip that a young man named “Chris was the shooter” and that the young

man lived on Carola Forest in the neighborhood where

the shooting occurred. Sergeant Minchew spoke with an

officer assigned to the neighborhood and identified F.D.M. as “Chris.” At

trial, all three of the young men who knew F.D.M. called him by the name

“Chris,” and another deputy testified that F.D.M. lived on Carola

Forest.

A few days after the shooting, Sergeant Minchew visited

Aguga while he was recovering in the hospital. Aguga gave a written statement

and, in a photographic lineup, identified F.D.M. as the person who shot him. Sergeant

Minchew testified that he asked Aguga, who was still

not fully able to speak due to the neck wound, how sure he was about the

identification and Aguga mouthed that he was “very sure.”

F.D.M. presented testimony from one witness at trial—his

mother, S.W. She also testified that everyone knew him as “Chris.” She did not

know where her son was at the time of the shooting. She testified that R.T. had

come to her house to see her son after the shooting, contrary to his testimony

that he did not see F.D.M. after the shooting until F.D.M. later threatened him

not to go to the police.

Standard of Review

Although

j uvenile cases are

civil proceedings, we review challenges to the sufficiency of the evidence to

support a finding that a juvenile engaged in delinquent conduct using the

standards applicable to criminal cases. In re C.J. , 285 S.W.3d 53 , 55–56 (Tex. App.—Houston [1st Dist.]

2009, no pet.); In re G.A.T. ,

16 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

This Court reviews criminal sufficiency-of-the-evidence challenges under a

single standard of review—the Jackson

standard—regardless of whether the appellant raises a legal or factual

sufficiency challenge. See Ervin v. State , 331 S.W.3d 49 , 52–54 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (applying Brooks v. State , 323

S.W.3d 893 , 894–913 (Tex. Crim. App. 2010) and Jackson v. Virginia , 443 U.S. 307, 320 , 99 S. Ct. 2781,

2789 (1979)); see also Bearnth v. State , No. 01-09-00906-CR,

2011 WL 5110241, at *2 (Tex. App.—Houston [1st Dist.] Oct. 27, 2011, no pet.).

Under the Jackson standard, evidence is insufficient

to support a conviction if, considering all the record evidence in the light

most favorable to the verdict, no rational fact-finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson , 443

U.S. at 317, 319 , 99 S. Ct. at 2788−89; Laster

v. State , 275 S.W.3d 512,

517 (Tex. Crim. App. 2009). Evidence is insufficient under this standard in

four circumstances: (1) the record contains no evidence probative of an element

of the offense; (2) the record contains a mere “modicum” of evidence probative

of an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal

offense charged. See Jackson ,

443 U.S. at 314 , 318 n.11, 320, 99 S. Ct. at 2786 , 2789 & n.11; Laster ,

275 S.W.3d at 518 . The Jackson standard gives full play to the

responsibility of the fact finder to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton

v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court

presumes the fact finder resolved any conflicts in the evidence in favor of the

verdict and defers to that resolution, provided that the resolution is

rational. See Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 .

Sufficiency of the Evidence

To

prove that F.D.M. committed the aggravated assault with which the State charged

him, the State had to prove that F.D.M. “intentionally, knowingly, or

recklessly cause[d] bodily injury to [Aguga]” and “use[d] or exhibit[ ed ] a deadly weapon” when he did

so. Tex. Penal Code Ann. §§

22.01(a)(1), 22.02(a)(2) (West 2011). F.D.M. contends that the State’s case

rests primarily upon the testimony of two witnesses — Aguga and J.B.—and that the testimony of these

witnesses is not credible.

F.D.M. argues that Aguga’s testimony is not credible for two reasons. First, F.D.M.

asserts that Aguga “testified that he felt like he was being surrounded and had

to leave,” and that “[u] nder these circumstances, [ Aguga ] could easily misidentify the individual who shot

him.” This contention is undermined by the testimony at trial. Aguga identified

F.D.M. as his shooter and testified that he had a good view of F.D.M.’s face

when F.D.M. shot him. Sergeant Minchew also testified that Aguga indicated that

he was “very sure” when he identified F.D.M. as the shooter in the photographic

lineup.

Jurors may rely on testimony from

the victim to identify a shooter and on the victim’s identification of his or

her shooter in a photographic lineup. See

Harmon v. State , 167 S.W.3d 610, 614 (rejecting argument that evidence was

insufficient to support conviction when only one witness, the victim, was able

to identify defendant as shooter); see

also Akbar v. State , 190 S.W.3d 119, 124 (Tex. App.—Houston

[1st Dist.] 2005, no pet.) ( relying on victim

identification of shooter); Gilstrap v.

State , 65 S.W.3d 322, 329 (Tex. App.—Waco 2001, pet. ref’d) (same); Epps

v. State , 24 S.W.3d 872, 880 (Tex. App.—Corpus Christi 2000, pet. ref’d) (same);

Jones v. State , 867 S.W.2d 175, 176 (Tex. App.—Beaumont 1993, no pet.) ( same ). Even the testimony of a single eyewitness may be

sufficient to support a conviction. Davis v. State ,

177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ( citing Aguilar v. State , 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)); Lewis v. State , 126 S.W.3d 572, 575 (Tex App.—Texarkana

2004, pet. ref’d). Here, two witnesses identified F.D.M. as the shooter and

several witnesses identified him as present at the time of the shooting and as

having made statements indicative of guilt prior to the shooting.

Second, F.D.M. argues that Aguga

could not identify the shooter when Sergeant Minchew first visited him in the

hospital. But F.D.M. misstates the testimony. Sergeant Minchew

was unable to speak to Aguga the first time he visited the hospital because of

his medical condition. The testimony F.D.M. cites in his brief relates to Sergeant

Minchew ’s second visit to Aguga in the hospital, at

which time Aguga did identify F.D.M. as the shooter.

F.D.M.

next contends that J.B.’s testimony was not reliable because the sun was “kind

of” in his eyes at the time of the shooting, and he was not wearing his

glasses. J.B. testified that he knew F.D.M. and was able to identify F.D.M.

without his glasses, and F.D.M. presented no evidence to contradict this

testimony. As the sole judges of credibility, the jurors are free to believe or

disbelieve all or any part of a witness’s testimony. Penagraph v. State , 623 S.W.2d 341, 343 (Tex. Crim. App. 1981);

Davis , 177 S.W.3d at 358 . Thus, it was the exclusive province of the

jury to determine the credibility of J.B.’s testimony that he had been able to

identify F.D.M. without his glasses.

F.D.M.

also argues that “[t]he State produced several witnesses who heard the

appellant say, shortly before the alleged offense, that he was going to rob the

ice cream man,” but “the probative value of this testimony is easily discounted

by the testimony of C.R., who” said that F.D.R. “‘joke[d] around a lot’ and

dismissed the statement as [F.D.R.] simply ‘playing.’” F.D.R. asserts that C.R.

believed that he was not serious about robbing anyone, and “[t]here was no

reason for the jury to think otherwise.” We disagree. Four witnesses placed

F.D.M. at the scene of the crime; two witnesses identified F.D.M. as the

shooter; one witnesses identified the type of gun F.D.M. used in the shooting

and placed the same type of gun in F.D.M.’s home days before the shooting and

in his possession immediately before the shooting. Additionally, one witness

testified that F.D.M. threatened to beat him up if he went to the police. See Wilson v. State , 7 S.W.3d 136, 141

(Tex. Crim. App. 1999) (holding that evidence of threatening witness is

evidence of consciousness of guilt) (citing Ransom v. State , 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on reh’g )). This evidence reasonably could have caused the

jury to conclude that F.D.M. was not joking when he made statements to others

that he was going to rob the ice cream man immediately before the shooting.

Conclusion

We hold that the evidence is sufficient to support the

jury’s finding beyond a reasonable doubt that F.D.M. committed the

offense of aggravated assault with a deadly weapon. We therefore affirm the

trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.