Opinion
Nos. 04-04-00492-CR, 04-04-00493-CR, 04-04-00494-CR
Delivered and Filed: July 13, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 8, Bexar County, Texas, Trial Court Nos. 830833, 830834, and 830835, Honorable Karen Crouch, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
A jury found defendant, Steven Antonelli, guilty on three counts of deadly conduct. The trial court assessed punishment. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. We affirm.
SUFFICIENCY OF THE EVIDENCE
Defendant was charged with engaging in deadly conduct that placed the three complainants in imminent danger of serious bodily injury by pointing a firearm at and in the direction of each of the complainants. See Tex. Pen. Code Ann. § 22.05 (Vernon 2003). A person commits the offense of deadly conduct if he "recklessly engages in conduct that places another in imminent danger of serious bodily injury." Id. at § 22.05(a). "Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded." Id. at § 22.05(c). In his first issue, defendant asserts the evidence is legally and factually insufficient to support a finding that he had a firearm, or if he did, that he pointed the gun at any person or discharged the gun, and there is no claim or evidence that any claimant was personally threatened with harm. Defendant asserts he felt threatened by the complainants and he held a hammer, not a gun. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The complainants, all teenagers, were part of a group standing outside a house next door to defendant's house. At some point in the evening, defendant left his house. When he returned, he asked the teenagers to move a vehicle, which he claimed blocked his driveway. According to the complainants, they could not move the vehicle because they did not have the keys and defendant became upset. One of the complainants, Nick Icenogle, testified he and his friends started to walk toward their own cars when he heard a gun cock. Icenogle turned and saw defendant holding a gun. Complainant George Atiee testified that when they told defendant they did not have the keys to move the car, defendant went back to his truck and "pulled out a gun." As Icenogle and Atiee got into Icenogle's truck, both boys saw defendant standing by Icenogle's driver-side window. Both testified that defendant was holding the gun toward the truck's hood and yelling that he would shoot the engine and tires out if they did not move. Both described the gun as black, and Atiee testified the gun was either a nine millimeter or a forty-five caliber. Icenogle said he felt threatened. Atiee said defendant made him nervous when he was pointing the gun at the truck and "it seemed pretty threatening." As Icenogle drove away, he glanced in his rearview mirror and saw defendant standing at the car of two girls and yelling at them. The third complainant, Camille Wagner, testified that, as she sat in her car, defendant banged a gun on the front windshield of her car and she thought that either the gun would "go off" or defendant would shoot someone. She described the gun as a black handgun. Defendant said he did not own a nine millimeter, but he did own a forty-five caliber. We conclude the evidence is legally and factually sufficient.BOLSTERING
During trial, the prosecutor asked the investigating officer if he believed "that the kids were telling . . . the truth." Although we agree with defendant that this question amounted to improper bolstering and the trial court erred in overruling defense counsel's objection, we conclude defendant was not harmed by the error. Because the defendant and three complainants were the only witnesses to testify about the incident, the State's case was based entirely upon the veracity of the witnesses' testimony. However, defendant admitted he said he would "blow out" the tires and engine block. The testimony of each of the complainants was consistent in that they each saw defendant holding a gun, not from a distance, but in close proximity to the cars in which they sat. Atiee, who is familiar with guns, testified to the caliber of the gun. Defendant admitted to owning a forty-five caliber gun. Based on this record, we conclude the error did not affect defendant's substantial rights. See Tex.R.App.P. 44.2(b).CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.CONCURRING OPINION
Initially, I note that although the information charged Antonelli with deadly conduct by pointing a firearm at and in the direction of the complainants, the jury charge properly instructed that the jury should find Antonelli guilty if the jury found that Antonelli engaged in deadly conduct by pointing a firearm at or in the direction of the complainants. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (holding that jury should be charged the differing methods of committing the offense in the disjunctive even though the indictment alleges the methods in the conjunctive). Although I agree that the evidence is sufficient to support the convictions, I write separately to detail the testimony from the record that I believe must be relied upon to support the finding that Antonelli pointed a firearm at or in the direction of the complainants. The evidence regarding two of the complainants, Icenogle and Wagner, is fairly straightforward. Icenogle testified as follows:
Q. Isn't it true that in your statement to the police that you saw, you says [sic] I turned around and saw him waving his 9 mm?A. Yes, sir. Q. So he was waving a 9 mm? A. Yes, sir. * * * * * *
Q. And you said that Steven Antonelli pointed a firearm in your direction; is that correct?A. Yes, sir. * * * * * * Q. He waved the firearm at the direction of you? A. I understand the direction, but he was waving.
Q. Okay. So he waved the firearm in the direction of you. You were in the car?A. Yes. Q. Was he pointing it at the car? A. Yes.
Q. Did he point the firearm at or in the direction of another person in the vicinity of the complainant? Was Joey in your car?A. Yes, sir.
Q. Did he point the firearm in the motor vehicle or in the vicinity of the complainant?A. Yes, sir. * * * * * * Q. What was he holding? A. A gun. Q. What was he waving around? A. A gun. With regard to Wagner, the investigating officer testified as follows: Q. Officer, what did she [Wagner] tell you?
A. That she had, had a gun pointed at her. She had a disturbance with her neighbor.* * * * * *
Q. With what she told you, well, you took her report that she had stated that someone had pointed a gun at her?A. Yes. In addition, Wagner testified as follows:
Q. At what point — you had mentioned earlier that you felt a presence. Tell the jury a little bit about that. What was — had you moved your car or was it — which way was it facing? When did it happen?
A. My car was still facing Joy's house, and I had reversed a little bit and I was going to pull forward. And my shoulder — my head was turned over my left shoulder. And then I felt a presence. Felicia said, "Oh, here he comes." And so then I looked and the next — like, I'm kind of, like, Oh, gosh, what's he going to do now?
The next thing I know, he's banging a gun on the window, and Felicia is, like, "Oh, my gosh, it's a gun."* * * * * *
Q. Would you say that the neighbor, the person waving this gun around, that he was on — right beside her [Felicia]?A. No. Q. No? Would he be more this way? A. Yes. He was more at the corner, yes.
Q. So more this way. If Felicia's imaginarily [sic] right here — I think I just made that word up — but if she's right here, he would be kind of where I'm at?A. Yes.
Q. Okay. And your windshield is about an arm's length?A. (Nods head.)
Q. You're sitting there. Tell the jury how — when did you see him? What did you notice?
A. When Felicia said he was coming and I was kind of, like, oh, gosh, what's he going to do, and then I hear a banging on the glass and I see it's a gun.Q. You hear banging on the glass? A. Yes.
Q. If he — if this — if I'm him, is it, you know, a tap, tap, tap (demonstrating)?A. No.
Q. "Hi, Camille," (demonstrating noise), is it like that?A. No. Q. Okay. Is it louder? Is it a (demonstrating noise)? A. It was a pretty loud bang. * * * * * *
Q. Okay. And he was banging it on your front windshield?A. Yes. Q. Not her passenger windshield? A. No, ma'am. Q. But on the front windshield? A. Yes.
Q. Okay. How many times, if you remember, did he bang it?A. I would say about two. The more troubling testimony relates to the third complainant, George Joseph Atiee II, whose nickname is Joey. Atiee testified as follows:
Q. Did then and there recklessly engage in conduct that places the complainant and I will put your name in here. George AtieeA. Atiee.
Q. Atiee. Excuse me. In imminent danger of serious bodily injury by and that the defendant pointed a firearm at or in the direction of you?A. No, sir.
Q. He did not at or in the direction. Did he wave a firearm at or in the direction of the complainant which is you?A. No, sir.
Q. Did he point a firearm at or in the direction of another person in the vicinity of the complainant? You were standing next to Nick. Did he point the gun at or near Nick?A. No, sir.
Q. And did he point a firearm at a motor vehicle in the vicinity of you?A. Yes, sir. Although Aitee's testimony does not appear to support a finding that Antonelli pointed a firearm at or in the direction of either Aitee or Icenogle, the jury could have placed more weight on the testimony of Icenogle that Antonelli was waving the gun around and that he pointed the firearm at or in the direction of another person in the vicinity of the complainant Icenogle, referring to Aitee. In view of the foregoing testimony, I agree with the majority that the evidence is sufficient to support the jury's verdict.