Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1493653
consists of Chief Justice Radack and Justices Keyes and
JENNIFER CAUGHEY JUSTICE
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.
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.
officers testified: Deputy Shike, Deputy Rangel, and
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. 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.
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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. 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.
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. Mitchell
testified that he jumped out the window and ran but was tased
by a police officer.
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"
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. ...