McBride v. State

• Decision Date: 15 February 2012
• Docket Number: No. 14–10–00975–CR.,14–10–00975–CR.
• Citation: 359 S.W.3d 683
• Parties: Danny McBRIDE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

359 S.W.3d 683

Danny McBRIDE, Appellant,

v.The STATE of Texas, Appellee.

No. 14–10–00975–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Nov. 22, 2011.Rehearing Overruled Feb. 15, 2012.

T. Brent Mayr, Houston, for appellant.

Jessica Alane Caird, Houston, for state.

Panel consists of Justices BROWN, BOYCE, and McCALLY.

OPINION

WILLIAM J. BOYCE, Justice.

A jury convicted appellant of aggravated assault, and the trial court sentenced him to 45 years' confinement. Appellant challenges his conviction in four issues, arguing that the evidence is legally insufficient to support his conviction, and that the trial court erred by allowing the State to ask punishment questions during voir dire, denying his motion to suppress, and refusing to submit a jury charge on the issue of self defense. We affirm.

Background

Appellant was employed as a driver for a delivery company in Houston. Appellant's supervisor, Arthur Hines, fired appellant after two weeks of work. Appellant had paid part of a security deposit for a radio, which he did not return to the company. When appellant entered the company's premises on November 13, 2008, he was told he would not receive the $20 deposit. Appellant then “got to swearing and cussing and calling everybody an MF and calling [Hines] the N word. And it just went on and on.” Hines left the office but appellant followed him outside and into a warehouse, getting very close to Hines and spitting in his face. After two or three minutes, Hines grabbed a banding machine, which is “like a big stapler”—a ten-inch flat piece of steel with a steel handle. Hines testified, “I told him if he didn't get out of my face, I was going to hit him upside his head.”

Appellant then went to his car while Hines returned to his office. Hines was talking to some drivers over his radio when appellant reentered the office. Appellant was holding a pistol “down by the side of his leg.” Appellant told Hines that he would blow Hines's brains out, and appellant told another employee, Gregory Kitchen, “I'm going to kill this nigger.” Hines explained, “I felt threatened that he might shoot me or might shoot one of the other people in the office.” Kitchen testified, “[A]t one point [appellant] raised the gun up towards Mr. Hines' head with his finger on the trigger.” Hines testified he “never saw him raise [the gun].”

Appellant eventually left. On the following day, Officer Jacko Ruiz arrested appellant after he observed appellant walking on the wrong side of the street when a sidewalk was present. See Tex. Transp. Code Ann. § 552.006 (Vernon 2011). Ruiz found a pistol in appellant's waistband, and the pistol was admitted into evidence at trial after the court denied appellant's motion to suppress. Kitchen testified that the pistol appeared to be the same one appellant had used the day before.

Sufficiency of the Evidence

In his third issue, appellant argues that the evidence is legally insufficient to sustain his conviction because there was “no evidence that appellant threatened [Hines] by using and exhibiting a handgun.”

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The jury is the exclusive judge of the credibility of witnesses and the weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Thus, we defer to the jury's responsibility to fairly resolve conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Id.

A person commits aggravated assault if he or she commits assault and uses or exhibits a deadly weapon during the commission of the assault. Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App.2001); Banargent v. State, 228 S.W.3d 393, 397 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Appellant concedes that his “words could be interpreted as a threat of imminent bodily injury”—that is, an assault, see Tex. Penal Code Ann. § 22.01(a)(2) (Vernon 2011)—but he argues that he “used his mouth to convey those threats and not the pistol.” Thus, appellant challenges the sufficiency of the evidence to support the jury's finding on the element of “uses or exhibits a deadly weapon during the commission of the assault.” See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 2011).

The evidence establishes that appellant held a gun at his side while telling Hines he would blow Hines's brains out. Appellant said he would kill Hines, and Kitchen testified that appellant raised the gun to Hines's head with a finger on the trigger. The evidence in this case clearly is sufficient to support a finding beyond a reasonable doubt that appellant used or exhibited a deadly weapon during the assault. See, e.g., Villatoro v. State, 897 S.W.2d 943, 945 (Tex.App.-Amarillo 1995, pet. ref'd) (sufficient evidence existed when defendant pointed a deadly weapon at complainant); Gaston v. State, 672 S.W.2d 819, 821 (Tex.App.-Dallas 1983, no pet.) (sufficient evidence existed when defendant held the shotgun by his side and pointed toward the floor and never verbally threatened complainant); May v. State, 660 S.W.2d 888, 889 (Tex.App.-Austin 1983) (sufficient evidence existed when defendant displayed the shotgun and pointed it in complainant's general direction), aff'd, 722 S.W.2d 699 (Tex.Crim.App.1984); see also Dickerson v. State, 745 S.W.2d 401, 403 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd) (“The pointing of a gun alone establishes the threat.”).¹

Appellant's third issue is overruled.

Voir Dire

In his first issue, appellant argues that the trial court erred by permitting the State to ask venire members multiple questions related to punishment and discussing punishment issues during voir dire, thus “implicitly suggesting that he had prior criminal convictions.”

During the State's voir dire, the following exchange occurred:

JUROR NO. 51: Is the person's previous record—does that come into play in a case like this?

THE STATE: Usually never. And I can't comment on anybody's previous record or lack thereof, and you won't hear it in trial unless the Judge deems that it's available to come in. And that's really all I want to say about it, because I don't want to prejudice too much.

Now suppose with me for a minute that we have a trial and you find the defendant guilty. Not this particular defendant. Just—we'll just use a hypothetical situation....

* * *

You find this person guilty beyond a reasonable doubt, so they're guilty. And then it's up to you. In this case the Judge is going to be deciding punishment, so we don't need to worry about that as much. But I would like to know—and again, you're not going to know what a person's criminal record is, most likely, if they have one or not. You're not going to know any of the mitigating circumstances of that person's life necessarily until you start—you know, you might hear some of that if you're deciding the punishment. But especially for guilt or innocence, you're not going to hear any of that.

DEFENSE COUNSEL: Your Honor, may I approach for a second?

THE COURT: You may.

(At the bench)

DEFENSE COUNSEL: Judge, it seems like we're getting—we shouldn't be getting into any issue about punishment. And by addressing any issues regarding history, it creates an implication that there is one.

THE STATE: I was asked specifically by a juror, and I think I negated that.

THE COURT: You did good in negating it, but now you're belaboring the point.

THE STATE: Then I'll stop.

(Continuing in jury's hearing)

THE STATE: Now, in general, when we're trying to decide what to do with someone if you find him guilty, Juror No. 1, is for anybody that's guilty of a crime, is punishment or rehabilitation more important?

DEFENSE COUNSEL: Your Honor, may I approach again?

THE COURT: You may.

(At the bench)

DEFENSE COUNSEL: Again, there shouldn't be any voir dire at all on the issue of punishment if the Court is going to determine punishment.

THE STATE: What I'm getting at, Judge, is in the criminal justice system, in general, if they feel that—is it more important from a standpoint of when you're deciding what to do with people who break the law, is punishment more important, is rehabilitating those people?

DEFENSE COUNSEL: I've been over this issue before, and generally it's not an admissible line of questioning when the Court determines punishment.

THE COURT: It is important to see if—go ahead and explain.

THE STATE: In order to gauge somebody's feelings on whether or not it's more important to punish people or to rehabilitate them—I mean, your guy is not probation eligible anyway, so I didn't touch on any specific issues.

DEFENSE COUNSEL: So, therefore, it's not relevant to anything we're doing here.

THE STATE: It's relevant to someone's feeling on crime, and I can ask it like that if you want me to.

THE COURT: Okay. So what's your objection, Counsel?

DEFENSE COUNSEL: My objection is to relevance. And since we're not going to the jury for punishment, it just confuses the issue and it would prejudice my client.

THE COURT: Okay. Objection is overruled but noted for the record.

DEFENSE COUNSEL: Okay. Thank you, Judge.

The State then asked the venire, “[F]rom a societal standpoint, when dealing with crime do you feel that it's more important to punish people or to rehabilitate people?” ² Each venire member responded to the question; most picked one of the two options, some chose both, and some said it would depend on the circumstances.

Later during voir dire, a venire member told the court outside the presence of the venire that she inferred from the State's comments about a criminal background that appellant “has a background that would...