Mann v. State

Raymond MANN, Appellant v. The STATE of Texas, Appellee

No. 04-19-00098-CR

Fourth Court of Appeals San Antonio, Texas

February 19, 2020

MEMORANDUM OPINION

From the 399th Judicial District Court, Bexar County, Texas

Trial Court No. 2017-CR-5447

Honorable Frank J. Castro, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Sandee Bryan Marion, Chief Justice Irene Rios, Justice Liza A. Rodriguez, Justice

AFFIRMED

Raymond Mann appeals his conviction for aggravated assault against a public servant. In two issues, Mann contends the evidence is insufficient to sustain his conviction and the trial court erred by allowing extraneous offense evidence against him during the punishment phase of trial. We affirm the trial court's judgment.

BACKGROUND

On February 26, 2017, San Antonio Police Department (SAPD) Officers Robert Dupee and Rickeesia Moore assisted Kirby Police Department (KPD) with a situation involving a robbery suspect who ran from KPD. After 7:00 p.m. that evening, Officers Dupee and Moore were dispatched to the 7100 block of Northeast Loop 410 to investigate reports of a suspicious person who also matched the description of the earlier robbery suspect. When the officers arrived at the location, the suspicious person, who was later identified as Mann, was walking along Loop 410, and the officers parked their marked patrol vehicle on the access road. Using the vehicle's PA system, Officer Dupee directed Mann to get off the highway and come to the vehicle. Mann continued to walk away from the officers but, after again being directed to stop, Mann stopped and walked to the officers' vehicle. Officer Dupee instructed Mann to place his hands on the hood of the vehicle. Mann did not place his hands on the vehicle. As Mann exhibited behavior that he intended to run, Officer Dupee placed his hand on his taser. Mann backed away from the officers and began to run away.

Officer Dupee saw Mann reach into his right pocket as he ran away. According to Officer Moore, when Mann turned back toward the officers "he drew and aimed." Officer Dupee saw Mann pull "something shiny" from his pocket. When Mann turned back toward the officers, Officer Dupee "had a good bead on him" and "tased him." According to Officer Dupee, he had heard what he described as a metallic click that he associated with a weapon being fired. Although Officer Dupee initially thought Mann held a cell phone, Officer Dupee realized the item Mann pulled from his pocket was a gun after Mann was incapacitated by the taser.

SAPD officers subsequently arrested Mann, who was later indicted for aggravated assault against a public servant. A jury convicted Mann of the indicted offense. Based upon the jury's recommendation, the trial court sentenced Mann to twenty years' imprisonment.

ANALYSIS

Sufficiency of the Evidence

Mann contends the evidence is insufficient to support his conviction for aggravated assault against a public servant "because there was no evidence that [Mann] intended to cause apprehension of imminent bodily injury. . . ."

Standard of Review

When examining the sufficiency of the evidence supporting a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). As the factfinder, the jury is permitted to draw any reasonable inferences from the evidence so long as the inferences are supported by the record. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). A person's acts and conduct are generally reliable circumstantial evidence of intent. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). "As long as the verdict is supported by a reasonable reference, it is within the province of the factfinder to choose which inference is most reasonable." Id. at 523.

Applicable Law

A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2). A person commits aggravated assault if the person commits the offense of assault as described in section 22.01 of the Penal Code and uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(2).

The Penal Code instructs that "[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desireto engage in the conduct." TEX. PENAL CODE ANN. § 6.03(a). "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist." Id. § 6.03(b). "A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Id. "Threatens" is not defined in the Penal Code, but the Court of Criminal Appeals has recognized the plain language of section 22.01(a)(2), and past jurisprudence indicates threat requires proof that, by his conduct, a defendant intended to cause an apprehension of imminent bodily injury. See Teeter v. State, PD-1169-09, 2010 WL 3702360, at *6 (Tex. Crim. App. Sept. 22, 2010) (not designated for publication). "Imminent" is also not defined in the Penal Code, but the Court of Criminal Appeals has defined the term to mean "ready to take place, near at hand, hanging threateningly over one's head, menacingly near." Garcia v. State, 367 S.W.3d 683, 689 (Tex. Crim. App. 2012) (internal citations omitted). "'Bodily injury' means physical pain, illness, or any impairment of physical condition." TEX. PENAL CODE ANN. § 1.07(a)(8). "The gist of the offense of assault as set out in [the Penal Code] is that one acts with intent to cause a reasonable apprehension of imminent bodily injury (though not necessarily with intent to inflict such harm)." Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).

Discussion

The focus of Mann's sufficiency challenge is whether Mann intended to cause apprehension of imminent bodily injury.¹ Specifically, Mann argues we should find the evidence insufficient to support this element because Officer Dupee's testimony that he initially thoughtMann held a cell phone showed Officer Dupee did not perceive a threat. "[T]here is no statutory requirement that a victim must instantaneously perceive or receive that threat of imminent bodily injury as the actor is performing it." Olivas v. State, 203 S.W.3d 341, 350-51 (Tex. Crim. App. 2006). "[T]he focus is not on a victim's perception of the defendant's conduct, but rather on the conduct itself." Teeter, 2010 WL 3702360, at *5. A defendant's intent or knowledge is a question of fact to be determined from a totality of the circumstances including the defendant's acts, words, and conduct. See Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018); Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).

Here, the jury heard testimony from both Officer Dupee and Officer Moore regarding the events surrounding the offense. The jury also viewed video footage from both officers' body cameras. The evidence presented during trial established that when Mann ran from the officers, he reached into his pocket. Officer Dupee testified that Mann's act placed him on heightened alert. According to Officer Dupee, Mann pulled "something shiny" out of his pocket. Officer Dupee further testified that when Mann turned back toward the officers, Officer Dupee "heard a distinct click of like a hammer hitting a gun ... ." After Officer Dupee used his taser on Mann, both officers saw that Mann dropped a gun. Officer Dupee also testified he believed Mann "was going to try to shoot [him] or [his] partner ..." and was angry because of it.

When all the evidence is viewed in the light most favorable to the verdict, a rational jury could have reasonably found from Mann's acts and conduct that Mann intended to cause Officer Dupee reasonable apprehension of imminent bodily injury. Consequently, we conclude the evidence in this case is sufficient to sustain the jury's finding that Mann committed the offense of aggravated assault against a public servant.

Issue one is overruled.

Extraneous Offenses

In his second issue, Mann contends the trial court committed error by allowing the State to introduce extraneous offenses against him during the punishment phase without proper notice. Mann argues the State's amended notice was unreasonable under the facts and circumstances of the case. Mann further argues the admission of the unadjudicated bad acts violated Texas Rule of Evidence 403 because the danger of unfair prejudice substantially outweighs the probative value of the evidence.

Standard of Review

We review a trial court's decision to admit evidence of extraneous offenses, including its decision as to whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). As long as the trial court's decision falls within the zone of reasonable disagreement, we will affirm the decision. Id. If an abuse of discretion is found because the notice was unreasonable, a harm analysis is required under Texas Rule of Appellate Procedure 44.2. See TEX. R. APP. P. 44.2.

Applicable Law

Upon timely request of a defendant, the State is required to provide notice that it intends to introduce evidence at punishment of the defendant's other crimes or bad acts during its case-in-chief. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1), (g). The notice is to be given in the manner required by Rule 404(b) of the Texas Rules of Evidence. Id., § 3(g). Further:

If the attorney representing the state intends to introduce an extraneous crime or bad act that has not

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