Jason Eugene Acker v. State

Opinion issued March 31, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-01130-CR

———————————

Jason Eugene Acker , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 46754B

MEMORANDUM OPINION

A

jury convicted appellant, Jason Eugene Acker, of aggravated assault [1] and assessed his punishment

at 60 years’ confinement. In three points

of error, appellant argues that the trial court erred in refusing to instruct

the jury (1) on the law of self defense and (2) on the requirement of voluntary

conduct and that (3) the evidence is insufficient to support the jury’s

verdict.

We

affirm.

Background

Appellant was charged with two

counts of aggravated assault as a result of an April 6, 2007 drug deal gone

awry. At trial, one of the complainants,

Harvey Roundtree, testified that, on the day in question, he and his cousin,

James Langham, the other complainant, had been working together at a music

recording studio. Roundtree intended to

drive Langham home, and Langham asked Roundtree to stop at appellant’s home so

that Langham could purchase marijuana.

When Roundtree and Langham arrived, a man was standing outside the bars

that enclosed the patio area of appellant’s home trying to sell appellant a

candle because appellant’s power was out.

Appellant and the candle seller were arguing. Appellant unlocked the gate to let Roundtree

and Langham into the patio area and then relocked the gate. Langham gave appellant money for marijuana, but

appellant seemed agitated by the candle seller and had not given Langham any

marijuana when Roundtree “told him, ‘Man, hurry up. We’re trying to go. My cousin already gave you the money.’”

According to Roundtree, appellant

then “snapped. . . . [Appellant] started taking his shirt off, and

he told the two girls that were at the door, ‘I’m fixing to kill these

n-i-g-g-a-s,’ you know, and he went in the house.” Roundtree testified that appellant then “fired

a shot into the air. He was like, ‘I’m

going to kill these dudes. Y’all get in

the house, I’m fixing to kill these dudes.’”

Roundtree also testified that, after appellant fired the shot in the air,

he said, “I’m fixing to kill y’all. Get

on y’all’s knees, I’m fixing to kill y’all.”

Roundtree testified that he

believed his life was being threatened and that he looked around to try to find

a way out of the enclosed patio area, but the gate was locked. He also thought, “I’m not fixing to get on my

knees and give [appellant] an easy shot at my head, you know. So I didn’t get on my knees when he said,

‘Y’all get on y’all’s knees,’ you know.”

Instead, as appellant pointed the gun at Roundtree and Langham,

Roundtree “rushed [appellant] like a football tackle.” Roundtree

first pushed appellant into a window and broke the window, then dropped

appellant on to the ground trying to “take the gun or get him to drop it.” Once appellant was on the ground, appellant

still had the gun in his hand and Roundtree was standing over him. Appellant reached around Roundtree. Roundtree heard the gunshot, but did not

notice at first that he had been shot until he noticed a hole in his

shirt. The shot knocked Roundtree to the

ground, and he heard appellant say, “Yeah, I told you don’t be rushing me like

that,” and then appellant kicked Roundtree twice in the ribs. Appellant was still pointing the gun at

Roundtree, and Roundtree believed appellant was going to shoot him again. Roundtree said, “Man, don’t kill me. You know, I got a little girl. Don’t kill me.” Langham intervened and negotiated with

appellant to get him to unlock the gate and let them both leave. Langham drove them away from appellant’s home

and called 911. Emergency services met

Roundtree and Langham at Langham’s home nearby and took Roundtree to the

hospital. Roundtree had a fractured rib

and a collapsed lung, and he had to have his spleen removed. The bullet was still lodged in his spine at

the time of trial.

Appellant’s counsel, questioning Roundtree about the report he made to

police said, “So you believed that the reason [appellant] was being aggressive

towards you was because [he] thought that you were trying to jump him; yes or

no?” Roundtree answered, “No, I didn’t

believe that. I just think he wasn’t in

his right mind at the time.” Roundtree

also testified:

[Appellant] pushed my cousin, and he said, ‘What, are y’all trying to

jump me or something?’ He was just

rambling off at the mouth, you know. He

was saying a bunch of things, and that’s what I was saying. I didn’t—I didn’t say I thought he thought we

were going to jump him. That’s what he

stated.

Langham’s testimony regarding the incident

was similar to Roundtree’s. Langham testified

that he had known appellant for years and thought they were on good terms. Langham also testified that appellant let

them in the gate and relocked it.

Appellant got offended when Roundtree tried to hurry him and “invaded

[Roundtree’s] personal space, like touching chest to chest. [Appellant] said, ‘If you don’t feel like

waiting, you can get out. You can leave

and get out.’” However, Langham

testified that he and Roundtree could not get out because appellant had to let

them out. When appellant was standing

chest to chest with Roundtree, Roundtree told appellant to “get out of [his]

face.” At that point, no weapons had

been displayed, and Roundtree and Langham were unarmed.

Langham tried to intervene and calm the two men down by putting his hand

between Roundtree and appellant, which prompted appellant to say, “Oh, y’all

trying to jump me?” Appellant then pulled

a gun. Langham testified that neither he

nor his cousin had tried to punch appellant or go after him in any way. After appellant pulled the gun, he fired it

in the air. Langham wanted to leave, but

could not get through the gate enclosing the patio area. Appellant told the two girls to go in the

house because he was “fixing to kill these dudes,” and Langham thought he was

going to die because there was nothing he could do. Then his cousin rushed appellant, they

scuffled, and Langham heard a gunshot. Appellant

then pointed the gun at Langham and Langham said, “Just let me and my cousin

go. You don’t have to worry about

him. I just want to get my cousin some

help.” Appellant took the keys out of

his pocket and opened the gate, and Langham helped his cousin up from the

ground and out to the vehicle.

Once they were on the way to Langham’s house, Langham called 911. An ambulance met them at Langham’s home and

took Roundtree to the hospital. Langham

then gave the police a brief account of what had happened. On cross-examination, Langham testified that

his cousin tackled appellant against the window, which had burglar bars in

front of it, but not until after appellant shot the gun in the air, pointed it

toward them, and threatened to shoot them.

No other witnesses testified regarding the events surrounding the

shooting.

At the jury charge conference, appellant

made several objections. First,

appellant objected to the exclusion of a self-defense charge:

[W]e would object on the

fact that the self-defense charge is not included in the charge to the jury,

and we would offer the case law and would cite Smith v. State, 670 S.W.(sic)

584, that states it can be — that the issue of self-defense can be raised

without direct testimony from the defendant by other evidence. . . . And we are saying that there is evidence to

raise the issue of self-defense in the fact that there’s testimony that the

shooter tried to stop them from coming forth by shooting up in the air, and

then by asking them to get on their knees, and they refused to stop, and he was

slammed against the window and against the concrete twice. So, under those circumstances, if they — he would

be afraid that they would get his gun and afraid of deadly conduct. Certainly, if they were attacking him, as

they did, it is a deduction, a reasonable deduction from the evidence that they

would be going after his gun, and, therefore he had the right to use deadly

force; also, the statement by Mr. James Langham that he felt that the Defendant

was in fear of being attacked by the two people.

The State responded that appellant’s argument misconstrued

the evidence, and argued that the self-defense theory “was inconsistent with

their assertion that ‘I didn’t do it’ or ‘I wasn’t there, I didn’t have

anything to do with this crime,’ which is also I think somehow raised by this

teeth argument, that maybe it wasn’t the same person and what have you.” The trial court overruled appellant’s

objection to the charge.

Appellant then continued:

[W]e would object to the

fact that the charge does not have a paragraph, or a charging paragraph that

would state that, “If you feel the Defendant had no intent of discharging the

firearm or hurting anybody, then you would acquit him,” because he did not have

the intent to cause the injury and did not have the intent to pull the trigger. Because under the circumstances of such a

fierce scuffle with James Langham, then it could have discharged — or with

the complainant that got shot, Harvey Roundtree, that the gun could have gone

off accidentally, and therefore, we would request that part of the charge in

the — that part of the paragraph in the charge.

The State responded, “There’s no special charge to

be given for that circumstance, and . . . there’s nothing in the record to say

this was accidental, and even if there was, there wouldn’t be a separate

charge, it would be a comment. And it’s

taken care of by the fact that the act has to be intentional and knowingly, it

has a mental state already in the act.”

The trial court overruled appellant’s objection.

Jury Instructions

In his first and second points of

error, appellant contends that the trial court erred in failing to instruct the

jury on the defensive issues of self-defense and voluntary conduct.

A.

Standard of Review

We review jury charge error in a

two-step process. Ngo v. State , 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). First, we determine whether error exists in

the charge. Id. If there is error, we

then review the record to determine whether sufficient harm was caused by the

error to require reversal of the conviction.

Id. When the accused has properly objected to the

error in the jury charge, reversal is required unless the error was harmless. Id. at

743 ; see also Almanza v. State , 686

S.W.2d 157, 171 (Tex. Crim App. 1984).

However, if no objection was made at trial, reversal is proper only if

the error is so egregious and created such harm that it might be fairly said

that the defendant did not have a fair and impartial trial. Almanza ,

686 S.W.2d at 171 .

In order to preserve error relating

to a jury charge, there must either be an objection or a requested charge. Starks

v. State , 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet.

dism’d) (citing Vasquez v. State , 919 S.W.2d 433, 435 (Tex. Crim. App. 1996)). Because appellant did not submit a jury

charge containing instructions on self-defense and voluntary conduct, he was

required to make a specific objection to the trial court’s charge to preserve

his points of error for appellate review.

See id. (citing Tex. Code Crim. Proc. Ann. art. 36.14

(Vernon 1999) (providing that defendant must distinctly specify each ground of

objection to jury charge)). To preserve

an issue for appellate review, the party must make a timely objection that

specifically states the legal basis for the

objection. Id. (citing Tex. R. App. P .

33.1 and Rezac v. State , 782 S.W.2d

869, 870 (Tex. Crim. App. 1990)). The

objection must draw the trial court’s attention to the particular complaint

later raised on appeal. Id.

When a defensive theory is raised

by the evidence from any source and a charge is properly requested, it must be

submitted to the jury. Woodfox v. State , 742 S.W.2d 408 ,

409–410 (Tex. Crim. App. 1987); see Shaw

v. State , 243 S.W.3d 647, 658 (Tex. Crim App. 2007). A defendant is entitled to an instruction on

every defensive issue raised by the evidence, regardless of whether the

evidence is strong, feeble, unimpeached, or contradicted, and even when the

trial court thinks that the testimony is not worthy of belief. Walters

v. State , 247 S.W.3d 204, 209 (Tex. Crim. App. 2007); see also Rogers v. State , 105 S.W.3d 630, 637 (Tex. Crim. App.

2003) (treating voluntariness of conduct as defensive issue); Starks , 127 S.W.3d at 132 (holding that

self-defense is defensive issue). We

review a trial court’s decision not to include a defensive issue in a jury

charge for an abuse of discretion, and we view the evidence in the light most

favorable to the defendant. See Bufkin v. State , 207 S.W.3d 779, 782

(Tex. Crim. App. 2006); Love v. State ,

199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

B.

Self-Defense

In his first point of error,

appellant argues that the trial court erred in failing to instruct the jury on

self-defense. The State argues that

appellant’s objection at trial failed to preserve this issue and that, even if

the argument is preserved, appellant was not entitled to an instruction on

self-defense.

1. Preservation

The State argues that appellant

failed to preserve this complaint because appellant’s objection at trial was

not sufficiently specific. However,

appellant’s objection clearly stated that he was requesting an instruction on

self-defense relating to appellant’s conduct toward both Roundtree and Langham. See Starks , 127 S.W.3d at 133 (holding that when,

as here, appellant did not submit jury charge containing requested instructions,

he was required to make specific objection to the trial court’s charge to

preserve his points of error for appellate review). Thus, appellant’s objection was timely,

specifically stated the legal basis for his objection, and was sufficient to

draw the trial court’s attention to the particular complaint raised on appeal. See id. ;

see also Carmen v. State , 276 S.W.3d

538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“An imperfect

objection is sufficient to preserve error ‘if the record indicate[s] that the

trial judge understood appellant’s request to encompass the matters about which

appellant now complains.’”) (quoting Bennet

v. State , 235 S.W.3d 241 , 243 & n.9 (Tex. Crim. App. 2007)).

We conclude that appellant

preserved this point of error for appellate review.

2. Analysis

“Self-defense is a justification

for one’s actions and necessarily requires an admission of the conduct at

issue.” Kimbrough v. State , 959 S.W.2d 634, 640 (Tex. App.—Houston [1st

Dist.] 1995, pet. ref’d); see also Shaw ,

243 S.W.3d at 659 (holding defensive instruction only appropriate when

defendant “essentially admits” to every element of offense including culpable

mental state, but interposes justification to excuse otherwise criminal

conduct). Thus, “[a] defendant is

entitled to an instruction on the law of self-defense if there is some evidence

that he intended to use force against another and he did use force, but he did

so only because he reasonably believed it was necessary to prevent the other’s

use of unlawful force.” Ex parte Nailor , 149 S.W.3d 125, 132

(Tex. Crim. App. 2004) (citing Tex.

Penal Code Ann . § 9.31(a) (“[A]

person is justified in using force against another when and to the degree he

reasonably believes the force is immediately necessary to protect himself

against the other’s use or attempted use of unlawful force”)). The

evidence raising the issue of self-defense can come from any source. See

Kimbrough , 959 S.W.2d at 639–40. A

defendant is not required to testify in order to raise the issue of

self-defense — the issue may be raised by

the testimony of witnesses who testify to the defendant’s acts and words at the

time of the offense. Reed v. State , 703 S.W.2d 380 , 384–85

(Tex. App.—Dallas 1986, pet. ref’d) (citing Smith

v. State , 676 S.W.2d 584, 587 (Tex. Crim. App. 1984)).

No self-defense instruction is

required “when the evidence establishes as a matter of law that force is not

justified in self-defense.” Elmore v. State , 257 S.W.3d 257, 259

(Tex. App.—Houston [1st Dist] 2008, no pet.). A person who would otherwise

be entitled to act in self-defense forfeits the right to defend himself if he

provoked the other’s use or attempted use of unlawful force. Tex.

Penal Code Ann. § 9.31(b)(4) (Vernon Supp. 2010); see also Kennedy v. State , 193 S.W.3d 645, 654 (Tex. App.—Fort Worth

2006, pet. ref’d) (“Provoking the use of force acts as a limitation or total

bar on a defendant’s right to self-defense.”).

There was no evidence in the record

that appellant used force only because he reasonably believed it was necessary

to prevent another’s use of unlawful force.

See Ex parte Nailor , 149

S.W.3d at 132–34. Appellant argues that

Langham’s testimony establishes that appellant believed that Langham and

Roundtree intended to “jump” appellant, and thus appellant fired a shot in the

air to deter them. Appellant further

argues that he did not shoot Roundtree until after Roundtree slammed him into a

wall. However, appellant’s arguments

misconstrue Langham’s and Roundtree’s testimony. Langham testified that he tried to intervene between Roundtree and

appellant by putting his hand between them, which prompted appellant to say,

“Oh, y’all trying to jump me?” Roundtree

testified that appellant was not in his right mind at the time of the incident

and that when appellant said, “What, are y’all trying to jump me or something?”

he was “just rambling off at the mouth.”

Both Langham and Roundtree testified that they were unarmed and that

they did not threaten or otherwise “go after” appellant in any way before

appellant pulled the gun out, shot it in the air, and told them to get on their

knees so he could shoot them. The

undisputed evidence at trial was that appellant provoked any use of

force on the part of the complainants. See Childs v. State , 21 S.W.3d 631, 636

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (holding that defendant who pointed gun at taxi-cab driver could

not claim self-defense when fatally shooting driver). Thus, no self-defense instruction is required

because the testimony of the witnesses established that any use of force by

appellant was not justified and that appellant could not have reasonably

believed his use of force was necessary to prevent Roundtree’s use of force. See

Elmore , 257 S.W.3d at 259 ; Ex parte

Nailor , 149 S.W.3d at 132 .

Furthermore, we observe that

appellant’s arguments that he was entitled to a jury instruction on

self-defense are undermined by the defensive theories presented at trial. None of appellant’s witnesses adduced any

evidence “essentially admitting” that appellant committed the conduct at

issue. In fact, appellant’s defensive

theories at trial focused on attempting to discredit Roundtree’s and Langham’s

identification of him as the assailant through counsel’s cross-examination of

both complainants on this issue and appellant’s mother’s testimony regarding

his dental work. Appellant also

attempted to discredit the process the police officers used to take the

complainants’ statements and the use of the photographic line-up. See

Kimbrough , 959 S.W.2d at 640 (holding that self-defense necessarily

requires admission of conduct at issue).

We overrule appellant’s first point

of error.

C.

Voluntariness

In his second point of error,

appellant argues that the trial court erred in refusing to instruct the jury on

voluntary conduct. The State, however,

argues that appellant’s objection at trial failed to preserve this issue for

appeal.

Texas Penal Code section 6.01(a)

provides, “A person commits an offense only if he voluntarily engages in

conduct, including an act, an omission, or possession.” Tex.

Penal Code Ann . § 6.01(a)

(Vernon 2003). “Voluntariness” refers to

one’s own physical body movements. Rogers , 105 S.W.3d at 638 . “If those physical movements are the

nonvolitional result of someone else’s act, are set in motion by some

independent non-human force, are caused by a physical reflex or convulsion, or

are the product of unconsciousness, hypnosis or other nonvolitional impetus,

that movement is not voluntary.” Id. However, the word “accident” has a more

general meaning, and the Court of Criminal Appeals has discouraged the use of

the word “accident” to refer to an involuntary act under Penal Code section

6.01(a). Id. at 638–39; Williams v.

State , 630 S.W.2d 640, 644 (Tex. Crim. App. 1982). Thus, a request for an “accident” instruction

is not the equivalent of a request for an instruction concerning “a voluntary

act.” Rogers , 105 S.W.3d at 636–40.

Likewise, “[t]he issue of voluntariness of one’s conduct, or bodily

movements, is separate from the issue of one’s mental state.” Hayes

v. State , 124 S.W.3d 781 , 788–89 (Tex. App.—Houston [1st Dist.] 2003)

(citing Adanandus v. State , 866

S.W.2d 210, 230 (Tex. Crim. App. 1993)), aff’d

161 S.W.3d 507 (Tex. Crim. App. 2005).

If a defendant engaged in a

voluntary act and had the requisite mental state, his conduct is not rendered

involuntary simply because his conduct also included an involuntary act or

because he did not intend the result of his conduct. See

Cruz v. State , 838 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.] 1992,

pet. ref’d); Owens v. State , 786

S.W.2d 805, 809 (Tex. App.—Fort Worth 1990, pet. ref’d) (holding that trial

court was correct in refusing charge on voluntary conduct where evidence showed

involuntary act that was merely part of overall voluntary conduct); see also Adanandus , 866 S.W.2d at 230

(holding that conduct was not involuntary merely because accused did not intend

result of his conduct). Furthermore, “an

instruction on voluntariness under section 6.01(a) is necessary only if the

accused admits committing the act or acts charged and seeks to absolve himself

of criminal responsibility for engaging in the conduct.” Peavey

v. State , 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet. ref’d); Trujillo v. State , 227 S.W.3d 164, 169

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). To assert an “involuntary act” as a defense,

the defendant must produce “evidence of an independent event, such as the

conduct of a third party, that could have precipitated the incident.” Rhodes

v. State , 997 S.W.2d 692, 694 (Tex. App.—Texarkana 1999, pet. ref’d)

(citing Brown v. State , 955 S.W.2d

276, 280 (Tex. Crim. App. 1997)).

Here, in his objection to the jury

charge, appellant stated he wanted “a charging paragraph that would state that,

‘If you feel the Defendant had no intent of discharging the firearm or hurting

anybody, then you would acquit him.’” Appellant’s

objection to the trial court was based on the arguments that appellant “did not

have the intent to cause the injury” and “did not have the intent to pull the

trigger,” and appellant also briefly mentioned that the gun went off

“accidentally.” The reference to

appellant’s intent and the brief argument that the gun “could have gone off

accidentally” were not sufficient to put the trial court on notice that

appellant was seeking a jury instruction on voluntary conduct under section

6.01(a) of the Penal Code. See Rogers , 105 S.W.3d at 636–39; Hayes , 124 S.W.3d at 788–89.

Even if appellant’s objection at

trial was sufficient to put the trial court on notice that he was seeking an

instruction on voluntary conduct, the trial court did not err in concluding

that appellant was not entitled to such an instruction. As we have already discussed, appellant’s

defensive evidence at trial did not include any evidence that appellant

committed the charged acts but was in some way justified in doing so — rather, the evidence adduced by appellant at

trial attempted to discredit Roundtree’s and Langham’s identification of him as

the assailant. See Peavey , 248 S.W.3d at 465 (“[A]n instruction on voluntariness

under section 6.01(a) is necessary only if the accused admits committing the

act or acts charged and seeks to absolve himself of criminal responsibility for

engaging in the conduct.”). Furthermore,

the record contains no evidence of any independent event that could have

precipitated the incident. See Rhodes , 997 S.W.2d at 694 . Although both Roundtree and Langham testified

that Roundtree tackled appellant and fought with him before Roundtree was shot,

neither of them offered any testimony that appellant lost control of the gun or

that Roundtree or some other independent force could have caused the gun to

discharge. Appellant’s assertion on

appeal and during the charge conference that the gun “could have gone off

accidentally” is not evidence and is not supported by the evidence.

We overrule appellant’s second

point of error.

Sufficiency of the Evidence

In his third point of error,

appellant challenges the sufficiency of the evidence. [2]

A.

Standard of Review

In a sufficiency of the evidence

review, we view the evidence in the light

most favorable to the verdict to determine whether any rational fact-finder

could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789

(1979); Brooks v. State , 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). The

jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given to the testimony.

McKinny v. State , 76 S.W.3d 463 ,

468–69 (Tex. App. —Houston [1st

Dist.] 2002, no pet.). Thus, a jury may believe

or disbelieve all or any part of a witness’s testimony. Id. We may not re-evaluate the weight and

credibility of the evidence or substitute our judgment for that of the

fact-finder. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000).

Appellant was convicted of two

counts of aggravated assault with a deadly weapon. A person commits the offense of assault if he

“intentionally, knowingly, or recklessly causes bodily injury to another” or if

he “intentionally or knowingly threatens another with imminent bodily injury.” Tex.

Penal Code Ann . § 22.01(a)(1)–(2) (Vernon Supp. 2010). A person commits the offense of aggravated

assault if he commits an assault and he “causes serious bodily injury to

another” or “uses or exhibits a deadly weapon during the commission of the

assault.” Id. § 22.02(a).

Here, both Roundtree and Langham

testified that after Langham gave appellant the money for some marijuana,

appellant became agitated toward them, threatened them with a gun, fired the

gun into the air, and made comments like, “I’m fixing to kill these dudes” and

“Get on y’all’s knees, I’m fixing to kill y’all.” This evidence was sufficient to show that

appellant intentionally or knowingly used or exhibited a deadly weapon while

threatening Roundtree and Langham with imminent bodily injury. See id.

§§ 22.01(a)(2), 22.02(a)(2).

Appellant argues only that “the

evidence that [he] intentionally, knowingly, or recklessly caused bodily injury

to Roundtree by the use of a firearm was extremely weak” because “it was just

as likely that the gun went off as a result of conduct of a third party rather

than the result of a voluntary act by appellant.” However, it is not necessary for the State to

prove that appellant caused serious bodily injury to convict for aggravated

assault when a deadly weapon was used or exhibited. See id.

§ 22.02(a)(2); see also Williams v.

State , 226 S.W.3d 611, 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

We overrule appellant’s third point

of error.

Conclusion

We affirm

the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §22.02(a)

(Vernon Supp. 2010).

[2]

Appellant challenged the factual

sufficiency of the evidence under Clewis

v. State . However, in Brooks v. State , the Court of Criminal Appeals overruled Clewis and its progeny and directed that evidence be reviewed only

under the sufficiency standard described in Jackson

v. Virginia . 323 S.W.3d 893, 912

(Tex. Crim. App. 2010); Ervin v. State ,

No. 01-10-00054-CR, 2010 WL 4619329 , at *2–4 (Tex. App.—Houston [1st Dist.]

Nov. 10, 2010, pet. ref’d) (construing majority holding in Brooks ). We therefore

construe appellant’s contention as solely challenging the sufficiency of the

evidence, as provided under Brooks .