Johnson v. State, 07–13–00158–CR

452 S.W.3d 398

Justin Davis Johnson, Appellant

v.The State of Texas, Appellee

No. 07–13–00158–CR

Court of Appeals of Texas, Amarillo.

November 19, 2014

Michael Mowla, Michael Mowla, PLLC, Cedar Hill, for Appellant.

Robert T. Christian, District Attorney, Granbury, for Appellee.

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

Patrick A. Pirtle, Justice

Appellant, Justin Davis Johnson, was convicted by a jury of aggravated assault causing serious bodily injury with a deadly weapon, a firearm, and aggravated assault by threat with a deadly weapon, a firearm.¹ He was sentenced to twelve years and six years confinement, respectively, with the two sentences to be served concurrently. On appeal, Appellant asserts the evidence was legally insufficient (1) to prove he was not justified in using deadly force against the victim of the first offense and (2) to prove he committed aggravated assault with a deadly weapon against the victim of the second offense. He also asserts the trial court erred by permitting two witnesses, (3) Smithson and (4) Frisbie, to testify as experts, and (5), in so doing, failed to act as a neutral and impartial judge, and (6) also erred by denying a voluntary intoxication instruction in the punishment charge. We affirm.

Background

On December 27, 2011, Appellant and Kent Bolsinger arrived at a hunting lease located in Hood County, Texas. Ryan Armstrong, whom Appellant had never previously met, shared the hunting cabin on the lease with the two other men. After dinner on the 28th, Appellant was outside the cabin firing rounds into a fire pit. Armstrong and Appellant, both of whom had been drinking, exchanged words concerning this particular conduct. When Appellant protested and started to leave, Armstrong and Bolsinger prevented him from doing so due to his state of intoxication. Bolsinger took Appellant's keys and Armstrong “escorted” him to a bunk room in the cabin, pushed him onto a sofa and told him to “sleep it off.” When Armstrong turned and reached the doorway, Appellant shot him with a .380 semi–automatic handgun, once in the jaw and once in the back.² After Bolsinger went to assist Armstrong, Appellant pointed his handgun at him and asked for the keys to his vehicle. Bolsinger did not give Appellant his keys but instead summoned medical assistance.

In March 2012, Appellant was indicted for two counts of aggravated assault with a deadly weapon, to wit: a firearm. Count one alleged that on or about December 28, 2011, Appellant intentionally, knowingly, or recklessly caused “serious bodily injury to [Armstrong] by shooting him with a firearm....” Count two alleged that, on or about the same date, Appellant intentionally or knowingly threatened “imminent bodily injury to [Bolsinger]” and did then and there use or exhibit a deadly weapon, to wit: a firearm.

Following a five–day jury trial, Appellant was found guilty on both counts and the trial court issued two judgments sentencing Appellant to twelve years on count one and six years on count two, with the two sentences to be served concurrently. This appeal followed.

Issue One: Self–Defense

Appellant asserts there was legally insufficient evidence at trial to establish he was not justified in using deadly force against Armstrong. In support, he contends he was justified in shooting Armstrong because he was in fear of death or imminent bodily injury. At the time of the incident, both men had been drinking heavily. Appellant testified at trial that, prior to the shooting, Armstrong had punched, kicked and choked him. Appellant also produced character witnesses to testify he was normally a peaceful, law–abiding person.

To obtain a conviction for aggravated assault under count one of the indictment, the State was required to prove beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly caused bodily injury to Armstrong while using or exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (West 2011). A deadly weapon includes a firearm. See id. § 1.07(a)(17)(A). It is undisputed that Appellant used deadly force and intended to shoot Armstrong twice with a semi-automatic handgun. Appellant asserts, however, he was justified in using deadly force because he reasonably believed deadly force was immediately necessary to protect himself against Armstrong's use or attempted use of unlawful deadly force. See id. § 9.32(a).

Appellant had the initial burden of production on the issue of self–defense and he was required to bring forward some evidence to support the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003). Once he produced that evidence, the State had the burden of persuasion to disprove the defense. Id. This burden does not require the production of additional evidence rebutting self-defense, but it does require the State to prove its case beyond a reasonable doubt. Id. Self–defense is an issue of fact to be determined by the jury, London v. State, 325 S.W.3d 197, 202 (Tex.App.—Dallas 2008, pet. ref'd), and when, as here, the trier of fact finds the defendant guilty, there is an implicit finding that the jury rejected the defendant's self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991).

When an appellant challenges the legal sufficiency of the evidence to support rejection of a defense such as self–defense, the question is not whether the State presented evidence which refuted appellant's self–defense evidence. Saxton, 804 S.W.2d at 914. Rather, we examine all of the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt (1) the essential elements of the alleged offense and (2) against appellant on the self–defense issue. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,61 L.Ed.2d 560 (1979) ). See Saxton, 804 S.W.2d at 914. In our review, we evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).

The jury's decision to reject Appellant's defensive claims ultimately hinges on the credibility of witnesses. Armstrong testified he grabbed Appellant by the back of his neck and escorted him to the cabin—not “an aggressive grab, it was more of a guide.” He then shoved Appellant into the corner of the bunk room where the sofa was located. Bolsinger testified that, before Appellant shot Armstrong, Armstrong was helping Appellant up the cabin's front porch stairs with one hand on the side of his shoulder, one hand kind of on Appellant's waist and back—“kind of helping guide him into the cabin.” Bolsinger testified he did not observe any violence and did not hear any physical altercation prior to the shooting. Bolsinger also testified that it was not until Armstrong was standing on the threshold of the doorway between the cabin's living room and bunk room that Armstrong was first shot by Appellant. Appellant then walked over to where Armstrong was lying and shot him a second time in the back. Contrary to the testimony of Armstrong and Bolsinger, Appellant testified that, prior to shooting Armstrong, he had been kicked, beaten, choked and thrown about the cabin by Armstrong. He testified he reacted by rapidly firing two shots.

The jury is the sole judge of the credibility of witnesses and weight to be given to their testimony. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). As fact finder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.3d 459, 461 (Tex.Crim.App.2006, pet. ref'd). The statements of Appellant and his witnesses do not conclusively prove a claim of self–defense. See London, 325 S.W.3d at 203 ; Denman v. State, 193 S.W.3d 129, 132–33 (Tex.App.—Houston [1st Dist.] 2006, pet. ref'd) (finding evidence sufficient to support conviction of aggravated assault under Jackson v. Virginia despite defendant's claim of self–defense, which was based on testimony of defendant and other witnesses who stated complainant had assaulted or threatened defendant on prior occasions). Further, that Appellant walked up to Armstrong after the first shot and shot Armstrong a second time in the back while he lay on the floor, if believed by the jury, is evidence negating his claim of self–defense. See Kirk v. State, 421 S.W.3d 772, 781 (Tex.App.—Fort Worth 2014, pet. ref'd) ; Smith v. State, 355 S.W.3d 138, 146–47 (Tex.App.—Houston [1st Dist.] 2011, pet. ref'd).

Based on the testimony of Bolsinger and Armstrong coupled with Appellant's conduct subsequent to the first shot, the jury could have reasonably concluded that Appellant's conduct was inconsistent with his self-defensive claims. See Cleveland v. State, 177 S.W.3d 374, 380–81 (Tex.App.—Houston [1st Dist.] 2005, pet. ref'd), cert. denied, 547 U.S. 1073, 126 S.Ct. 1774, 164 L.Ed.2d 523 (2006) (finding that jury could have reasonably concluded that defendant's conduct in continuing to stab his wife's back as she lay bleeding on floor was inconsistent with his claim of self-defense). Having considered the entire record, we conclude the jury rationally could have found each element of the charged offense was proven beyond a reasonable doubt and that it could have rationally rejected Appellant's claim of self–defense. See Zuliani, 97 S.W.3d at 594. Accordingly, we hold the evidence was sufficient to support Appellant's conviction for aggravated assault against Armstrong. Appellant's first issue is overruled.

Issue Two: Aggravated Assault with a Deadly Weapon

Appellant asserts no rational trier of fact would have found him guilty of pointing a gun at Bolsinger and threatening to shoot him if he didn't give Appellant his truck keys. He asserts inconsistencies in...