Vaughn v. State

• Decision Date: 31 August 1994
• Docket Number: No. 01-93-00385-CR,01-93-00385-CR
• Citation: 888 S.W.2d 62
• Parties: Brenda Cantrell VAUGHN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 62

888 S.W.2d 62

Brenda Cantrell VAUGHN, Appellant, v. The STATE of Texas, Appellee.

No. 01-93-00385-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 31, 1994.

Rehearing Overruled Dec. 15, 1994.

Lewis Dickson, Houston, for appellant.

John B. Holmes, Jr., Timothy G. Taft, Larry McDougal, Harris County, for appellee.

Before OLIVER-PARROTT, C.J., and HEDGES and ANDELL, JJ.

OPINION

HEDGES, Justice.

A jury found appellant, Brenda Cantrell Vaughn, guilty of aggravated assault with a deadly weapon and assessed punishment at six-years confinement, probated, and a $5,000 fine. In eleven points of error, appellant complains that the evidence was insufficient as a matter of law, that the general verdict violated her right to due process, that trial counsel rendered ineffective assistance of counsel at the guilt-innocence and punishment stages, and that the trial court erred in allowing evidence that was inherently prejudicial and inflammatory. We affirm.

SUFFICIENCY OF THE EVIDENCE

As part of point of error one, appellant contends that the evidence was insufficient as a matter of law to sustain her conviction as a primary actor.

Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, this Court views the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990). The standard of review is the same for both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991).

This Court is prohibited from sitting as a thirteenth juror and disregarding or reweighing the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). The trier of fact is entitled to accept one version of the events and reject another, and to accept or reject any of the witnesses' testimony. Sharp, 707 S.W.2d at 614; Penagraph, 623 S.W.2d at 343.

Facts

Viewed in the light most favorable to the verdict, the evidence established the following facts. On July 15, 1991, the complainant Mr. Joseph Amos, was working in his yard, shoveling mulch from his truck into a wheelbarrow. He observed two unrestrained dogs approach and relieve themselves in his yard. Appellant was accompanying the dogs. Mr. Amos climbed out of his truck to run the dogs off his property.

Mr. Amos testified that although he did not say anything to appellant, she "looked at me as though I had no business saying anything to the dogs." He climbed back into his truck and resumed shoveling the mulch. Shortly thereafter, appellant reappeared with the codefendant, Donna Puliafico, on the sidewalk between Mr. Amos' truck and his yard.

When the women stopped and allowed a third dog to relieve itself in Mr. Amos' yard, he requested that they not allow the dog to "crap" in his yard. A brief altercation ensued between appellant, Ms. Puliafico, and Mr. Amos. The incident escalated when Mr. Amos used the shovel to scoop the dog's feces and threw it at the barking dog.

Ms. Puliafico screamed racial slurs at Mr. Amos and began shoving and pushing him as Mr. Amos was standing with the shovel pointed spade down into the ground. Ms. Puliafico instructed appellant to take the dogs back and bring back their guns. Appellant departed and soon returned with two guns. She kept one and gave one to Ms. Puliafico.

Initially, appellant held her gun down by her side. Mr. Amos testified that he thought the two women were actually going to shoot him:

[Mr. Amos]: Well, I am thinking now that they is going to shoot me, actually shoot me, because I remember them putting a gun--one of them putting a gun to my head and I am thinking, "How can I get now from where I was to my door?" And I am thinking, "Why did I stay out there and allow them to come back with a gun?" And I am thinking, "My family going to come out here and see me lying down on the ground dead."

Mr. Amos was able to get to his front door and ring the doorbell. The women followed him with the guns pointed at him; Ms. Puliafico continued her threats to kill him.

When Mrs. Amos and two of the Amos children came to the door, Mr. Amos told his wife to call the police because "we have two women that have the guns on me." Appellant pointed her gun at the Amos family and said, "I am going to kill all of you goddamn niggers." Mr. Amos managed to get inside his house. Mrs. Amos testified that she thought the women would kill her husband.

Meanwhile, Mr. Amos' two rottweiler dogs had gotten out of their fenced enclosure. Appellant and Ms. Puliafico were swinging guns at Mr. Amos' dogs as they were sniffing appellant's small dog. Mr. Amos stated that his dogs were not going towards the appellant and Ms. Puliafico. Mr. Amos left his house to round up his dogs and put them inside the fence. At that moment, appellant and Ms. Puliafico marched Mr. Amos around his house at gunpoint and stated that he and his dogs were going to die. Mr. Amos managed to get himself and his dogs inside the fenced area of his yard. He testified: "[Appellant] said, 'This is it. You are going to die.' And I thought that was it and I believe what she had told me. I thought that was it. I thought I wasn't going to get a chance to close the gate." Mr. Amos then closed and locked the gate as the women held guns on him. He went back into his house and called the police himself. Mrs. Amos heard appellant cursing and saw her empty Mr. Amos' wheelbarrow and ram it into the back of his truck.

Mr. David McNeese and his family, who were riding bicycles in the neighborhood, observed most of the incident. Mr. McNeese had not known Mr. Amos before this incident. Mr. McNeese's testimony corroborated the Amos' testimony from the point when appellant and Ms. Puliafico reappeared in front of the Amos' residence. Mr. McNeese also testified that he heard shells rattling in Ms. Puliafico's gun, indicating that it was loaded.

Deadly Weapon

Appellant argues that the evidence was insufficient to establish that she committed assault with a deadly weapon because her gun was not loaded; therefore, it could not have been a deadly weapon. Her testimony was the only evidence that the gun was not loaded. She argues that a there is a long-standing presumption in this State that a pistol used in an assault is loaded absent proof to the contrary, citing Ogren v. State, 447 S.W.2d 682 (Tex.Crim.App.1969). ¹ Her uncontradicted testimony, she contends, rebuts the presumption and conclusively establishes that the gun was not loaded. She further asserts that an unloaded gun cannot be a deadly weapon.

We do not find appellant's arguments persuasive. Her interpretation of Ogren is overdrawn. The defeat of a presumption does not mean that the fact at issue cannot be proved by other means. There is evidence in the record that appellant pointed her gun at Mr. Amos and told him, "This is it. You are going to die." A rational jury could infer from this testimony that the firearm was loaded if it believed Mr. Amos and disbelieved appellant.

A firearm is a deadly weapon per se under TEX.PENAL CODE ANN. § 1.07(a)(11)(A) (Vernon 1974). Barnes v. State, 845 S.W.2d 364, 367-68 (Tex.App.--Houston [1st Dist.] 1992, no pet.) The Texas Court of Criminal Appeals has held in Walker v. State, 543 S.W.2d 634, 637 (Tex.Crim.App.1976) that a "forty-five automatic, even though missing a firing pin and without a clip ... was manifestly designed and made for the purpose of inflicting death or serious bodily injury...."

We find that the evidence was sufficient to support a finding that appellant assaulted Mr. Amos with a deadly weapon.

General Verdict

In the second part of point of error one, appellant asserts that because it cannot be determined from the general verdict whether her conviction was founded upon the law of parties, her rights to due process under the United States Constitution and to due course of law under the Texas constitution have been violated.

Appellant cites Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); and United States v. Meriwether, 440 F.2d 753 (5th Cir.1977) as support for her proposition that a general verdict deprives her of the right to due process. In each of those cases, the jury was charged on multiple theories of guilt, one of which clearly could not support a conviction. In that instance, a general verdict violated a defendant's right to due process. That is not the fact pattern confronting us. The indictment charged appellant with aggravated assault. A person commits aggravated assault when she intentionally or knowingly threatens another with imminent bodily injury and uses a deadly weapon. TEX.PENAL CODE ANN. § 22.01(a) (Vernon 1989); TEX.PENAL CODE ANN. § 22.02(a)(4) (Vernon Supp.1994). A defendant is guilty as a party to an offense if, acting with intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid another person to commit the offense. TEX.PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974); Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). The evidence may be direct or circumstantial. Martin, 753 S.W.2d at 387; Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App.1977).

In deciding whether a defendant is guilty as a party, a jury may consider events occurring before, during, and after...