Court of Appeals of Texas, First District, Houston
On Appeal from the 21st District Court, Washington County, Texas. Trial Court Case No. 15671.
For APPELLANT: Ariel Payan, Austin, TX.
For STATE: William E. Parham, District Attorney, Washington County, TX, Conroe, TX.
Panel consists of Justices Keyes, Higley, and Massengale. Justice Keyes, dissenting.
Michael Massengale, Justice
A jury convicted appellant Anthony Jerome Gilbert of deadly conduct involving discharge of a firearm. See Tex. Pen. Code Ann. § 22.05(b)(1) (West 2011). On appeal, Gilbert contends that there was insufficient evidence for a rational jury to convict him. We affirm.
James Daniels Sr. hosted a family barbecue at his home in Brenham, Texas. The front of the house, including the porch and windows, is depicted in State's Exhibit 2, which is attached as an appendix to this opinion. The people in attendance included: his wife, Amy Daniels; his parents, William and Earline Mathis; his niece, Shana Daniels; and at least a half-dozen children.
The family was sitting on a recessed front porch when Anthony Gilbert approached and accused them of telling his wife about his affair with Shana. James and Amy assured Gilbert that no one had spoken to his wife. Nevertheless an argument ensued, and Gilbert was asked to leave.
Later that evening, Gilbert returned to the Daniels residence with a shotgun. After noticing the gun, James ran to the porch. Most of the rest of the family, who already had been on the porch, took cover or dove into the house. William remained on the porch.
Gilbert proceeded to fire the shotgun several times. He then retrieved his shotgun shells and left the premises. During the subsequent police investigation, marks consistent with shotgun spread were found on the far right window, only a few feet from the porch.
Gilbert was charged with committing deadly conduct by discharge of a firearm. He pleaded not guilty. At trial, James, Earline, William, and Amy testified as eyewitnesses. While there were inconsistencies about details, the witnesses generally agreed that Gilbert discharged his firearm in the direction of the house while James was on the porch.
James specifically testified that he was " on the porch" when Gilbert fired the last shot. 3 RR 36-37. Standing on the porch, James " peeked around" the corner and could see Gilbert " the whole time from the porch." According to James, Gilbert was positioned " on the street," " in front of the house," and " up a little bit" --thus indicating though not expressly stating that from his perspective standing on the porch and looking out toward the yard in front of the house, Gilbert was positioned to James's left. While James testified that Gilbert had aimed " at the house" but did not know if he had aimed specifically " at the house or me," he also testified that " it was kind of close" to him and that he " could have got hit." He testified, " I just fell backwards, you know what I'm saying, and I thought I was hit but I wasn't." 3 RR 29.
William testified that James " was on the porch" and that Gilbert shot " at the porch." 3 RR 52-53. Earline also testified that Gilbert fired a shot in the direction
of the porch and that James was among the people on the porch. 3 RR 64. She also testified that Gilbert " shot at the window that's closest to the porch," and that he " was standing right close up on us . . . from the road he had climbed up on the grass and started shooting." Amy testified that Gilbert " pulled a gun, he fired once I think in the air and then two more times at the house. One time was where my husband was walking towards the house." 3 RR 70.
The jury was instructed, " [I]f you find from the evidence beyond a reasonable doubt that . . . Anthony Jerome Gilbert, did then and there knowingly discharge a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr., you will find the defendant guilty . . . ." The jury found Gilbert guilty of deadly conduct, and he was sentenced to serve 75 years in prison. Gilbert appealed.
Gilbert argues that there was insufficient evidence presented at trial to convict him of deadly conduct. A person commits deadly conduct if he knowingly discharges a firearm " at or in the direction of" an individual. Tex. Pen. Code Ann. § 22.05(b)(1). The indictment alleged that Gilbert " did . . . knowingly discharge a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr."
We apply the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine if the evidence is sufficient to support each element of a criminal offense that the State must prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under this standard, an appellate court views the evidence " in the light most favorable to the verdict." Id. at 899 (quoting Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006)). Viewing the evidence " in the light most favorable to the verdict" means that the reviewing court is required to defer to the jury's credibility and weight determinations because the jury is the sole arbiter of the witnesses' credibility and the weight to be given to their testimony. Id. The evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a " modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Kiffe v. State, 361 S.W.3d 104, 107 (Tex. App.--Houston [1st Dist.] 2011, pet. ref'd). With respect to the second circumstance, the Court of Criminal Appeals has explained that the jury's verdict should be upheld " unless a rational factfinder must have had reasonable doubt as to any essential element." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1625, 32 L.Ed.2d 152 (1972) (" That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard." ). Accordingly, it is insufficient that a rational jury merely could have harbored a reasonable doubt. " Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt . . . ." Johnson, 406 U.S. at 362, 92 S.Ct. at 1625.
No party disputes that Gilbert knowingly discharged a firearm. In fact, four eyewitnesses testified to seeing Gilbert intentionally fire a shotgun multiple times. However, Gilbert contends that there was insufficient evidence at trial for a rational jury to find that he fired the shotgun in the direction of James, the complainant.
The Penal Code supplies no definitions to aid in the application of section 22.05(b)'s prohibition of discharging a firearm " at or in the direction of" an individual. See, e.g., Tex. Pen. Code Ann. § § 1.07, 22.05. " Words not specially defined by the Legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). " Accordingly, when determining the sufficiency of evidence to support a jury verdict, reviewing courts must not employ definitions ...