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Mitchell v. State

Court of Appeals of Texas, First District

February 22, 2018


         On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1493653

          Panel consists of Chief Justice Radack and Justices Keyes and Caughey.



         A jury convicted appellant Cardero Alexander Mitchell of aggravated assault of police officer N. Shike, a first-degree felony, and sentenced him to 50 years' imprisonment. Tex. Penal Code §§ 22.01; 22.02. In two issues, Mitchell asserts that (1) the evidence was insufficient to support his conviction, and (2) the trial court erred in admitting expert testimony during the punishment phase regarding his gang involvement. We affirm.


         Mitchell was charged with aggravated assault of a police officer. After a trial at which numerous witnesses testified, the jury convicted Mitchell. Because Mitchell raises a sufficiency of the evidence challenge, we detail the trial evidence.

         A. Guilt-innocence phase

         Three officers testified: Deputy Shike, Deputy Rangel, and Lieutenant Zitzman.

         Deputy Shike. Deputy Shike offered the following testimony. On January 1, 2016, he was dispatched to the Huntington Apartments after two calls for service, a 911 hang-up call, and a call reporting a domestic disturbance with a weapon.[1] When he arrived, Deputy Shike saw the 911 caller, Corey Jones. Jones directed Deputy Shike to the apartment where the disturbance had occurred. Deputy Shike notified dispatch that weapons were possibly involved and called for back-up units.

         Deputy J. Rangel and Lieutenant J. Zitzman arrived, and the officers noticed two women exiting the scene of the disturbance. The officers called the women over to the patrol car and identified one of them, Angelica Mitchell, Mitchell's sister. Angelica informed the officers that Mitchell was inside and that he had a gun.[2]

         Deputy Shike and Deputy Rangel entered through the front door while Lieutenant Zitzman remained outside. Deputy Shike announced himself and continued to identify himself several times as he went upstairs. When he reached the top of the stairs, he saw Mitchell leaning out of a bedroom window. He did not see any weapons on Mitchell at that time. Deputy Shike called Mitchell over, but Mitchell jumped out of the window. Deputy Shike notified dispatch and any other officers around that Mitchell had jumped out of the window. Deputy Shike then ran downstairs, out the front door, and back to the parking lot.

         Deputy Shike watched as Lieutenant Zitzman attempted to tackle Mitchell but was unsuccessful. Deputy Rangel assisted Lieutenant Zitzman in trying to detain Mitchell. Deputy Shike ran over to assist, too. Deputy Shike explained that he stood behind Mitchell trying to control his arms and get him on the ground, yelling that Mitchell should stop resisting. Mitchell then escalated the situation by trying to take Lieutenant Zitzman's gun. Mitchell was unsuccessful in that attempt. But soon thereafter, Mitchell grabbed Deputy Rangel's gun from his holster. The officers then got him down on the ground.

         According to Deputy Shike, Mitchell had the gun in his hands with full custody and control of it, and Deputy Shike was in fear of imminent danger of bodily injury or death for himself, his fellow officers, and several people who were nearby. Mitchell put the gun underneath his body. Deputy Shike then saw Deputy Rangel press the magazine release on the gun, release the magazine, and throw it to the side. This took away Mitchell's ability to shoot the gun 14 to 16 times, but there was still one bullet in the chamber. Deputy Shike used his knee, closed fist strikes, and a taser to try to get Mitchell to release the weapon, but Mitchell did not comply.

         Mitchell fired the remaining shot. Deputy Shike initially thought he or one of his fellow officers might have been hit. He was also worried for the safety of others nearby.

         Even after firing the gun, Mitchell refused to submit to commands. Deputy Shike watched Mitchell attempt again and again to shoot the gun, which was pointed in the general direction of the officers. Deputy Shike managed to get the gun away from Mitchell, and then Mitchell attempted to flee on foot again. Deputy Shike testified that he was scared that Mitchell would attempt to take another officer's gun. The officers wrestled with Mitchell to get him back down on the ground, and Deputy Shike put all of his body weight on top of Mitchell to detain him.

         Additional units and emergency medical services arrived, and the officers ultimately arrested Mitchell. Deputy Shike admitted that he did not find a weapon on Mitchell after he was arrested and searched. But Deputy Shike averred that he believed he could have died. Finally, Deputy Shike explained that his patrol car had a dashboard camera that caught the events in the parking lot that day. The State submitted the video recording into evidence.[3]

         Deputy Rangel. Deputy Rangel testified next. He stated that he responded to Deputy Shike's call for back-up. He remained downstairs while Deputy Shike went upstairs, and he ran out when he heard Deputy Shike say Mitchell had jumped out of the window. According to Deputy Rangel, he and Lieutenant Zitzman chased Mitchell while Lieutenant Zitzman attempted to taser Mitchell. The officers tackled Mitchell and told him to stop resisting. Mitchell first tried to grab Lieutenant Zitzman's gun but could not. Then, as Deputy Rangel was trying to get Mitchell away from Lieutenant Zitzman's gun, Mitchell grabbed Deputy Rangel's holster and removed the gun.

         Deputy Rangel testified that he was in imminent fear for his and the other officers' safety because Mitchell had the gun in his hands and controlled it. Mitchell had the gun underneath him and initially pointed it at Deputy Rangel and then at Deputy Shike. Deputy Rangel testified that he tried to wrestle the gun away from Mitchell while Mitchell cradled it.

         At some point, Deputy Rangel saw Mitchell pull the trigger of the gun. Deputy Rangel testified that, at that moment too, he was in imminent fear for his life and worried that any of the officers could have been killed. Mitchell continued to point the gun towards them and pulled the trigger about ten times, but the gun contained no more bullets. Eventually, Mitchell pointed the gun into his own mouth and pulled the trigger about five more times. He said about three to four times that he wanted to kill himself, and he asked the officers to kill him.

         Lieutenant Zitzman. Lieutenant Zitzman also testified at trial, and his story was consistent with that of Deputy Rangel and Deputy Shike. He testified that during the struggle with Mitchell in the parking lot, Mitchell took the gun from Deputy Rangel's holster, and Lieutenant Zitzman could not see the gun or where it was pointed, but he feared for all of their safety. He testified that, after seeing the video, he learned that the bullet Mitchell managed to shoot came inches from hitting his right thigh.

         Corey Jones. Corey Jones testified as well. He stated that he lived with his wife Angelica, Mitchell's sister. According to Jones, he came home on January 1, 2016 with his baby, and they were sitting downstairs in their apartment when he heard Mitchell and his girlfriend fighting upstairs. He heard a scuffle and then what he thought was a gunshot. He immediately grabbed his child, ran outside, and used a neighbor's phone to call the police. Jones testified that he did not own a gun and did not see anyone shoot one.

         Angelica Mitchell. Angelica testified that she arrived home from work on January 1, 2016, and, at that time, she did not realize the police had been called. She told Mitchell and his girlfriend that they needed to leave if they were fighting. Angelica walked outside and saw police in front of her apartment.[4] Angelica then saw Mitchell jump from the window, after which two officers tackled and tased him. She did not see Mitchell grab any of the officer's guns. When she heard a gunshot, she started yelling that the officers had killed her brother. Angelica testified that she believed Mitchell wanted to kill himself when he took the gun from the police officer, and she did not think he put her or the officers' lives in danger.

         Cardero Mitchell. Finally, Mitchell testified. He stated that he and his girlfriend were fighting on January 1, 2016, but he denied hitting his girlfriend or firing a gun during their fight. Mitchell testified that when Angelica came home, she told them to leave. Mitchell saw the police officers approach the apartment, and he went upstairs to check on his baby. When he heard the officer coming upstairs, Mitchell testified that he "had to go" because he had an assault case pending and he did not want to go back to jail.[5] Mitchell testified that he jumped out the window and ran but was tased by a police officer.

         Mitchell admitted that he tried to grab Lieutenant Zitzman's gun. He testified that he tried to grab the gun because he wanted to shoot himself. He explained that he was unable to obtain Lieutenant Zitzman's gun but managed to secure Deputy Rangel's. He asserted that the officers did not believe that their lives were in danger because, during the struggle, he was screaming that he wanted to shoot himself. According to Mitchell, Deputy Shike asked him what he was doing and why he wanted to kill himself. Mitchell denied pointing the gun at any of the officers. He admitted, however, that he shot the gun and that he did not know where it was aimed. Mitchell testified that he did not realize that he was putting the officers in fear in that moment. But he admitted that "now looking at it and hearing the details of the case" he "put a lot of people at risk" and "put people's life [sic] in danger." He stated that he "never intentionally tried to hurt anybody" but himself.[6]

         Mitchell also testified that he was trying to commit "suicide by cop, " which meant putting himself "at risk of being shot or killed by a cop by making the choice that can make the cop use excessive force or deadly force." Mitchell admitted that he intended the cops to feel threatened and intended to "inflict fear" by taking Deputy Rangel's gun. ...

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