Tracey Lee Hersha v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00635-CR



Tracey Lee Hersha, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 48,777, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

Appellant Tracey Lee Hersha appeals his conviction for the offense of aggravated assault on a public servant. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2) (West 1994). The jury assessed his punishment at twenty-five years' imprisonment. In this appeal, appellant challenges the factual sufficiency of the evidence to support his conviction. We will affirm the trial-court judgment.

FACTUAL BACKGROUND

On March 20, 1998, Donna Barber returned to her trailer home to find appellant, who was then living with her, asleep on the couch. She saw a bottle of vodka on the kitchen counter and some pain pills on the table next to him. During an ensuing argument with appellant, Barber ordered him to move out of her home. Appellant became more upset, grabbed a crossbow, ⁽¹⁾ and threatened to shoot himself in the chest with it. ⁽²⁾ Alarmed by appellant's behavior, Barber drove to a liquor store and called the police to report that Hersha was contemplating suicide. She remained at the store until the police told her it was safe to return home.

Police officers James Strunk and Jerry Bryan responded to Barber's call. They were the only two witnesses at the trial who testified to the events that followed. Officers Strunk and Bryan arrived in uniform at Barber's trailer in a clearly marked police vehicle. As they arrived, they saw appellant in the yard holding a large knife. Appellant then retreated into the trailer through a sliding glass door and wedged a wooden board in the door jamb to lock the door behind him. The officers approached the house intending to try to help appellant. They split up and positioned themselves on opposite corners in order to cover all four sides of the trailer.

Officer Bryan testified that as he went around the trailer, he saw appellant come out the back door with a crossbow in his hand. Appearing surprised to see the officer, appellant pulled the bow up to shoulder level and pointed it at Bryan. Bryan testified that at that point, he thought appellant was going to shoot him. Although he had his pistol drawn, Bryan did not use it to defend himself because he thought Officer Strunk might come around the trailer directly into his line of fire. Consequently, he felt he had no choice but to seek cover behind a tree.

Appellant then moved back into the trailer and slammed the door. During this time, Strunk had come around the house and seen Bryan with his pistol drawn. When Bryan moved for cover, Strunk returned to his original position on the front side of the house, where he saw appellant through the trailer door with the crossbow raised and pointed. Strunk remembered seeing a bolt loaded in the bow. The officers then spoke with appellant who remained inside the trailer. Bryan testified that appellant told him that either the officers were going to have to kill him, or he would have to kill them, and if they wanted to "get" him, they could come in and get him. Eventually, the officers convinced appellant to come out of the trailer. At the officers' request, appellant threw out the crossbow and two knives and emerged from the trailer, at which point he was taken into custody. Both officers testified that when the crossbow hit the ground, the bolt discharged and flew into the surrounding trees. The police never recovered the discharged bolt.

In his sole point of error, appellant claims that there is insufficient evidence to support the jury verdict of guilty, arguing that the jury made an assumption of facts which were not in evidence.

FACTUAL SUFFICIENCY OF THE EVIDENCE

Appellant does not challenge the legal sufficiency of the evidence. A factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict was legally sufficient. See Clewis v. State, 922 S.W.2d 129, 134 (Tex. Crim. App. 1996). In a factual sufficiency analysis, the appellate court determines whether the jury verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 129 (citing Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed)). The appellate court compares the evidence weighed by the jury that proves the existence of the elemental fact in dispute to the evidence that tends to disprove the fact in dispute, considering the evidence as a whole rather than in the light most favorable to either party. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). However, the appellate court's review must be appropriately deferential so as to avoid the court's substituting its own judgment for that of the jury. See Clewis, 922 S.W.2d at 133. Moreover, the possibility that reasonable minds could differ over the conclusions to be drawn from the evidence does not allow the appellate court to reverse the verdict. See Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.--Dallas 1998, no pet.).

Appellant argues that the jury made assumptions of facts that were not in evidence; he claims the jury assumed that he intended to harm Officer Bryan because he raised the crossbow when he stepped out of the home.

Section 22.01 of the Texas Penal Code provides in relevant part:

(a) A person commits an offense if the person:

(2) intentionally or knowingly threatens another with imminent bodily injury.

Section 22.02 provides in relevant part:

(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:

(2) uses or exhibits a deadly weapon ⁽³⁾ during the commission of the assault.

(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:

(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.

Tex. Penal Code Ann. §§ 22.01(a), 22.02(a), (b) (West 1994).

Appellant contends that intent to harm is a necessary element of the offense of aggravated assault, and that the mere raising of the crossbow is not suggestive of his intent to harm Officer Bryan. The State argues that intent to harm is not an element of the offense; appellant needed only to intentionally or knowingly engage in the act of threatening the officer. Appellant cites Peterson v. State, 836 S.W.2d 760 (Tex. App.--El Paso 1992, pet. ref'd), as holding that an aggravated assault on a peace officer under section 22.02(a)(2)(A) is a "result" type offense as opposed to a conduct offense, and therefore, he must have had the requisite intent to cause the resulting harm to the officer. See id. at 765. However, in addition to the fact that the appellant in Peterson was charged with actually assaulting a peace officer, Peterson was charged under the pre-1994 version of section 22.02(a)(2) of the Penal Code, which was substantively different from the section of the current Penal Code under which appellant was charged in this case. The phrase "causes bodily injury" appeared in section 22.02(a)(2) of the Code before it was amended to take effect in 1994. See Act of Sept. 1, 1987, 70th Leg., R.S., ch. 1001, § 12, 1987 Tex. Gen. Laws 3750, 3764 (Tex. Penal Code Ann. § 22.02, since amended). Moreover, the Peterson court noted that threatening a peace officer with a deadly weapon is a conduct offense and does not require the result or intent to cause a result to satisfy the offense of aggravated assault. See Peterson, 836 S.W.2d at 765.

The essential inquiry here is whether pointing a deadly weapon is itself a sufficient threat to support a conviction for assault as defined under section 22.01(a)(2). Appellant argues that some other act, word, or deed must be present in addition to the raising and pointing of the crossbow to manifest assaultive behavior. It is well established that threats can be conveyed by action or conduct as well as words. See Horn v. State, 647 S.W.2d 283, 284 (Tex. Crim. App. 1983). The mere display and pointing of a gun in the victim's general direction has been held to constitute a threat of imminent bodily injury. See May v. State, 660 S.W.2d 888, 889 (Tex. App.--Austin 1983), aff'd, 722 S.W.2d 699 (Tex. Crim. App. 1984); see also Rodriguez v. State, 955 S.W.2d 171, 174 (Tex. App.--Amarillo 1997, no pet.); De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.--Corpus Christi 1993, no pet.). Aggravated assault requires only "that the defendant be using a deadly weapon to intentionally or knowingly threaten another with imminent bodily injury." Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.--Dallas 1983, no pet.).

Officer Bryan testified at trial that when appellant pointed the crossbow at him, he thought appellant was going to shoot him and he was afraid of getting hurt. He testified further that the only reason he did not use his own weapon in self-defense at that point was to avoid accidentally shooting Officer Strunk. Similar testimony by police officers in other cases has been held sufficient to establish the elements of aggravated assault on a police officer. In Cantu v. State, 953 S.W.2d 772 (Tex. App.--Corpus Christi 1997, pet. ref'd), the court held the act of pointing a loaded gun at two pursuing police officers to be sufficiently threatening to support a conviction for aggravated assault. See id. at 775. Cantu claimed that he never intended to threaten the officers, but rather took his gun out "to try to get away from the officers." Id. However, both officers testified at trial that they were concerned Cantu would shoot them. See id. In this case, Hersha's act of pointing the crossbow had the same effect on Officer Bryan and constituted a threat of imminent bodily injury.

According to Officer Bryan, appellant threatened the officers from inside the trailer after he encountered Officer Bryan in the backyard. Appellant told the officers that either they were going to have to kill him, or he would have to kill them. While appellant argues that this exchange reveals his true suicidal intent--that he wanted the officers to shoot him--the State responds that intent to harm is not an element of the offense, and that appellant's verbal threat supports the inference that he intended to threaten Officer Bryan with the crossbow. However, we need not resolve this dispute because appellant's act of pointing the crossbow at Officer Bryan constitutes evidence of a sufficient threat to support a conviction for aggravated assault. We therefore reserve the question of whether appellant's subsequent verbal exchange with the officers could be considered evidence that appellant intended to threaten Officer Bryan with the crossbow. Appellant's sole point of error is overruled.

CONCLUSION

Adhering to the well-defined standard of review and giving due deference to the jury determination that the officers' testimony was credible, we hold that the verdict in this case was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, the judgment is affirmed.

Bea Ann Smith, Justice

Before Justices Jones, B. A. Smith and Yeakel

Affirmed

Filed: June 10, 1999

Do Not Publish

1. The crossbow had been given to Barber's seven year-old son by her ex-husband.

2.

Barber contradicted herself on direct examination. She testified that she saw the crossbow loaded with a bolt before she left the trailer to seek help, but when asked later on direct examination, she testified that the bow was not loaded.

3.

"Deadly weapon" is defined in the Texas Penal Code as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(17)(A) (West 1994). Appellant does not raise the issue of whether a crossbow falls under this definition of "deadly weapon." However, a crossbow and a firearm are similar in operation, as each discharges an object that can cause serious bodily injury or death. Thus, a crossbow fits the classification of deadly weapon, because it is precisely the kind of object "manifestly designed, made, or adapted" to cause serious bodily injury. At trial, Officer Strunk testified from personal experience with a crossbow similar to the one wielded in this case, that in his opinion, "a crossbow is a deadly weapon."

ton v. State, 672 S.W.2d 819, 821 (Tex. App.--Dallas 1983, no pet.).

Officer Bryan testified at trial that when appellant pointed the crossbow at him, he thought appellant was going to shoot him and he was afraid of getting hurt. He testified further that the only reason he did not use his own weapon in self-defense at that point was to avoid accidentally shooting Officer Strunk. Similar testimony by police officers in other cases has been held sufficient to establish the elements of aggravated assault on a police officer. In Cantu v. State, 953 S.W.2d 772 (Tex. App.--Corpus Christi 1997, pet. ref'd), the court held the act of pointing a loaded gun at two pursuing police officers to be sufficiently threatening to support a conviction for aggravated assault. See id. at 775. Cantu claimed that he never intended to threaten the officers, but rather took his gun out "to try to get away from the officers." Id. However, both officers testified at trial that they were concerned Cantu would shoot them. See id. In this case, Hersha's act of pointing the crossbow had the same effect on Officer Bryan and constituted a threat of imminent bodily injury.

According to Officer Bryan, appellant threatened the officers from inside the trailer after he encountered Officer Bryan in the backyard. Appellant told the officers that either they were going to have to kill him, or he would have to kill them. While appellant argues that this exchange reveals his true suicidal intent--that he wanted the officers to shoot him--the State responds that intent to harm is not an element of the offense, and that appellant's verbal threat supports the inference that he intended to threaten Officer Bryan with the crossbow. However, we need not resolve this dispute because appellant's act of pointing the crossbow at Officer Bryan constitutes evidence of a sufficient threat to support a conviction for aggravated assault. We therefore reserve the question of whether appellant's subsequent verbal exchange with the officers could be considered evidence that appellant intended to threaten Officer Bryan with the crossbow. Appellant's sole point of error is overruled.