Thomas v. State
| Decision Date | 22 December 2016 |
| Docket Number | No. 11-14-00355-CR,No. 11-14-00356-CR,11-14-00355-CR,11-14-00356-CR |
| Parties | NELSON CARL THOMAS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 35th District Court Brown County, Texas
Trial Court Cause Nos. CR22754 & CR22755
In Cause No. 11-14-00355-CR, the jury convicted Nelson Carl Thomas of assault family violence by occlusion and assessed his punishment at confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice. See TEX. PENAL CODE ANN. § 22.01(a), (b-1)(3) (West Supp. 2016). In Cause No. 11-14-00356-CR, the jury convicted Appellant of aggravated assault with a deadly weapon and assessed his punishment at confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice. See id. § 22.02(a)(2) (West 2011). The jury also assessed a fine of $10,000 for each conviction. In three issues on appeal, Appellant contends that (1) the evidence was insufficient to support a finding that he used or exhibited a deadly weapon, (2) he received ineffective assistance of counsel, and (3) the trial court erred in denying his motion for new trial without a hearing. We affirm.
Background Facts
On October 21, 2013, police responded to a call that a person had been shot at a residence in Early. Officer Michelle Sheedy arrived at the scene and saw Appellant lying on the sidewalk bleeding from his abdomen. Medical personnel tended to Appellant, and Officer Sheedy made contact with Appellant's wife, Mica Thomas,1 and also with her neighbor, Shelia Schulze. Officer Sheedy testified that Thomas was in shock and appeared to be in pain, upset, and distraught. Officer Sheedy stated that Thomas told her that, after she arrived home from work, Appellant assaulted her and that she shot him to defend herself.
Thomas and Appellant were married and had a child together. They separated in 2010 when Thomas and their son moved out. Appellant subsequently found Thomas living in Early, and he began visiting Thomas from time to time to do laundry and take a shower because his utilities had been cut off. Appellant asked Thomas if he could spend the weekend prior to the incident at her house, but she declined his request. Thomas testified that, on the morning of October 21, 2013, she told Appellant he needed to find a home and get his life in order. Thomas then left the house to go to work.
She stated that, after arriving home that afternoon from work, she went into the kitchen where Appellant came up behind her and began assaulting her.Specifically, Thomas testified: Appellant then hit Thomas in the stomach, and then he took her by the arm forcing her into the living room where he threw her onto a futon and said, Thomas testified that Appellant then retrieved pepper spray from her work uniform and sprayed her in the face with it. After Thomas washed her face in the kitchen, Appellant sprayed her again with pepper spray and hit her in the stomach.
Thomas testified that Appellant committed multiple acts of violence against her. At one point, Appellant told Thomas that she would be seeing her dad that night. Thomas testified that her dad had been deceased for fifteen years. Thomas testified that Appellant also hit her in the ribs and in the chest. He also choked her around the neck with his hands to the point where she was close to passing out. Thomas made an attempt to escape through the front door of her residence, but Appellant prevented her from doing so. He attempted to tape her mouth shut with electrical tape, but he was unable to do so because the pepper spray on her face prevented the tape from sticking.
Appellant forcibly took Thomas to the bedroom and told her to "get the guns" because they were going to play "Russian roulette." Once in the bedroom, Appellant committed more acts of physical violence against Thomas, including shoving a vibrator down her throat. Appellant eventually ordered Thomas to give him a bag with two handguns in it. As Appellant was attempting to load one of the handguns, Thomas grabbed a shotgun out of the closet and shot Appellant in the abdomen. She testified, "I had to shoot him or he was going to shoot me." After shooting Appellant, Thomas ran out the front door of the house into the yard screaming for someone to call the police. Thomas then ran across the street to her neighbor's yard.
Analysis
In his first issue, Appellant challenges the sufficiency of the evidence to support the jury's finding that he used or exhibited a deadly weapon. As the State points out, this argument only implicates Appellant's conviction for aggravated assault with a deadly weapon. Specifically, the indictment in Cause No. 11-14-00356-CR charged that Appellant "intentionally, knowingly, or recklessly [caused] bodily injury to [Thomas], by striking or kicking her in the chest, back, or face, and [Appellant] did then and there use or exhibit a deadly weapon, to-wit: [a] firearm, during the commission of said assault." Conversely, the indictment in Cause No. 11-14-00355-CR made no reference to a firearm.
We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supportsconflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
As pertinent to Appellant's conviction for aggravated assault, a person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including his spouse. PENAL § 22.01(a)(1). A person commits aggravated assault with a deadly weapon if the person commits an assault, and the person uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(2). A firearm is a deadly weapon per se. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); see PENAL § 1.07(a)(17)(A).
Appellant argues that the evidence presented at trial was insufficient to establish that he used or exhibited a deadly weapon. He first contends that there is no evidence that he used a firearm. He then contends that the "key inquiry here" is whether the evidence was sufficient to establish that he exhibited the .22 pistol that Thomas referenced in her testimony. He contends that the .22 pistol was not within his reach when he was shot. Appellant further contends that the .22 pistol was not found during the initial search of the crime scene by the police and that it was only found after Thomas and her family "cleaned" the scene. Appellant contends that the physical evidence contradicted any inference that he exhibited the .22 pistol. We disagree with Appellant's evaluation of the evidence.
Thomas testified that, during the time that Appellant was physically assaulting her by choking her, he told her: "[W]e [are] going to play a little game called Russian roulette." Thomas testified that Appellant initially attempted to remove a revolver from its holster but that, when he realized that there were not any shells for the revolver, he told her: Thomas told Appellant that the "little silver one" was in the bag that he threw down. Thomas testified that, when "[Appellant] was trying to put the clip into the gun," she pulledthe shotgun from her bedroom closet and shot Appellant with it. Thomas testified that, "if he ever got that clip in there, he was going to kill me." Additionally, Danny Crawford, a Texas Ranger with the Texas Department of Public Safety, testified that the physical evidence corroborated Thomas's story.
Thomas detailed an assault committed by Appellant occurring over an extended period of time in multiple locations throughout her house. She specifically testified that, during the course of the assault, Appellant told her they were going to play Russian roulette and then ordered her to give him a bag containing handguns. She further testified that he had handled two of these guns and that she shot him as he was attempting to load a clip into the .22 pistol.
Appellant bases his sufficiency challenge on evidence that he contends contradicts Thomas's testimony. As previously noted, the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. To the extent that other evidence may have contradicted Thomas's version of the events, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to...
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