Malcolm Lasalle George v. State ( 2008 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00055-CR
______________________________
MALCOLM GEORGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 114-2211-07
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
After a bench trial, Malcolm George was orally sentenced to confinement for thirty-five years
for aggravated assault based on a threat to use a deadly weapon against Stephanie Veasey and her
seventeen-year-old son, Jonathan Veasey.1 George contends the evidence was legally and factually
insufficient to support his conviction. After a careful review of the evidence, we affirm George's
conviction, but reform the written judgment assessing two life sentences to conform with the oral
judgment pronounced at trial.2
I. Factual Background
George dated Stephanie and lived in her home along with her three children. One morning,
George went to work in the yard placing bricks around the flowerbeds. He discovered that the aid
of a weedeater was needed during this task. As George tried to grab the weedeater, it fell apart.
Because he felt that Stephanie's oldest son had purposefully taken apart the weedeater, George
became angry and marched into the house in a rampage. He opened and slammed doors and
destroyed objects in the house by kicking them. He woke Stephanie by pacing back and forth
between the kitchen and bedroom and yelling at her to find her oldest son another place to live.
1
The indictment in this case was for the assault against Jonathan, Stephanie's middle son.
George was also convicted of aggravated assault of Stephanie, and assessed a concurrent thirty-five-
year sentence in a companion case which we have decided today under cause number 06-08-00056-
CR. Since these assaults originated during one time period, the facts concerning each charge will
be discussed in this opinion.
2
This case has been transferred to this Court as part of the Texas Supreme Court's docket
equalization program.
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A high chair in the kitchen shattered after George threw it to the ground. George picked up
the three-and-a-half to four-foot metal high-chair leg "like he was going to hit [Stephanie] with it."
He threatened Stephanie from the kitchen stating that he "was going to bash her face in with . . . that
pole," while waving the chair leg. When threatening Stephanie, George remained three or four yards
away from her and never came close enough to actually hit her. Stephanie remained in bed for the
duration of the incident. However, she testified she felt as though George might hit her. Although
recanted, Stephanie at one point indicated she felt her life was at stake. Jonathan witnessed the
incident and described it as "life threatening."
Still holding the chair leg, George told Jonathan to go to his room and threatened to hit him
with the leg by stating, "if you call [the police], I guarantee that you'll be down—down or dead
before they get here." Jonathan testified that he was "very scared" and that, as George threatened
him, he "thought that [he] was going to be gone too." Trying to defuse the situation, Stephanie got
into her car, left the house, and called the police. After she left, George asked Jonathan to call her
and warn her that the big screen television would be broken if she did not return. George waited
outside. When Stephanie returned, George picked up a brick and began running toward the car. He
threw Stephanie's cell phone out of the window, said he knew she had called the police, and asked
her to help him pack. The police arrived as they were packing George's belongings into the car and
arrested him for aggravated assault.
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Police officer James Turner testified at trial. He confirmed Jonathan's statement that George
threatened to bash his mother's face in and threatened Jonathan that, if he called the police, he would
be dead before they arrived. Turner also testified that the chair leg was capable of causing serious
bodily injury or death.
II. The Evidence Is Legally Sufficient to Support George's Conviction
When conducting a legal sufficiency analysis, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Clewis v. State, 922 S.W.2d 126, 132–33 (Tex. Crim. App. 1996). This standard serves as a tool to
determine whether there is a fact issue at all. Clewis, 922 S.W.2d at 133. In other words, if the
evidence is insufficient under the Jackson standard, we must render a judgment of acquittal. Id.
However, if the Jackson standard is met, we must give full play to the fact-finder's responsibility to
weigh the evidence, resolve conflicts in the testimony, and draw reasonable inferences from basic
facts. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis, 922 S.W.2d at 133;
Bottenfield v. State, 77 S.W.3d 349, 354 (Tex. App.—Fort Worth 2002, pet. ref'd) (citing Jackson,
443 U.S. at 319).
The State is not required to prove the ability to commit battery for a defendant to be
convicted of assault. Miller v. State, 741 S.W.2d 501, 503 (Tex. App.—Corpus Christi 1987, pet.
ref'd) (conviction affirmed even though victim was out of range of shotgun). Instead, one manner
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of committing aggravated assault with a deadly weapon requires proof of: 1) intentionally or
knowingly threatening another with imminent bodily injury; and 2) using or exhibiting a deadly
weapon during the commission of the assault. TEX . PENAL CODE ANN . §§ 22.01(a)(2); 22.02(a)(2)
(Vernon Supp. 2008). While the question of whether the defendant's conduct produced fear is
relevant, the crucial inquiry is "whether the assailant acted in such a manner as would under the
circumstances portend an immediate threat of danger to a person of reasonable sensibility." Olivas
v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006) (citing Anthony v. United States, 361 A.2d
202, 206 (D.C. 1976)); see also Chapman v. State, 78 Ala. 463, 465 (Ala. 1885).
In some circumstances, the mere presence of a deadly weapon can be enough to instill fear
and threaten a person with bodily injury. De Leon v. State, 865 S.W.2d 139, 142 (Tex.
App.—Corpus Christi 1993, no pet.).
Here, George threatened Stephanie with the high chair leg by stating he would "bash her face
in." The threat caused Stephanie to reasonably feel that George would hit her. A fact-finder could
decide Stephanie was afraid that serious bodily injury or death could occur because she testified
feeling that her life was at stake. George also threatened to hit Jonathan with the chair leg and said
he would kill him if he called the police. In addition to stating he was "very scared" and was afraid
he "was going to be gone too," the following exchange occurred during Jonathan's cross-
examination:
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Q. . . . did there come a point where you didn't really feel like your life was in
jeopardy?
A. I was - - I was kind of still afraid, because I - - he - - he doesn't - - I don't
think he really would lie about something like that. But then at points where
he could just cool down, it wouldn't happen. That's what I would think.
In both instances, injury was imminent because George threatened present harm and had the present
ability to carry out his threats. See Tidwell v. State, 187 S.W.3d 771, 774–75 (Tex.
App.—Texarkana 2006, pet. struck). We give full play to the trial court's responsibility to weigh this
testimony and draw the reasonable inference that George intentionally or knowingly threatened
Stephanie and Jonathan with imminent bodily injury. The evidence is legally sufficient on this point.
Next, under the Texas Penal Code, a deadly weapon is "anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury." TEX . PENAL CODE ANN .
§ 1.07(a)(17)(B) (Vernon Supp. 2008); Charleston v. State, 33 S.W.3d 96, 100 (Tex.
App.—Texarkana 2000, pet. ref'd). Because a high-chair leg is not designed, made, or adapted for
the purpose of inflicting bodily injury, it is not a deadly weapon per se. McCain v. State, 22 S.W.3d
497, 502 (Tex. Crim. App. 2000); In re S.B., 117 S.W.3d 443, 446 (Tex. App.—Fort Worth 2003,
no pet.); Charleston, 33 S.W.3d at 99. The following five-factor test can be used in determining
whether the chair leg is a deadly weapon: (1) physical proximity between the victim and the object;
(2) the threats or words used by the assailant; (3) the size and shape of the weapon; (4) the weapon's
ability to inflict death or serious injury; and (5) the manner in which the defendant used the weapon.
Brown v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986); Tisdale v. State, 686 S.W.2d 110,
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115 (Tex. Crim. App. 1984); English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Blain
v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Williams v. State, 575 S.W.2d 30 (Tex. Crim.
App. 1979). No one factor is determinative, and each case must be examined on its own facts.
Either expert testimony or lay testimony may be sufficient to support a finding. English, 647 S.W.2d
at 668–69.
The evidence established that George was within three to four yards of Stephanie when he
threatened her. The distance between George and Jonathan during the various threats is not
established in the record. The threats spewed from George demonstrate the capability of the chair
leg to be used as a deadly weapon. George raised and waved the chair leg in a manner that could be
used to cause serious injury or death. Turner testified that the three-and-a-half to four-foot metal
pole brandished by George was capable of causing serious injury or death. In sum, all factors save
proximity tend to support the finding that the chair leg was a deadly weapon. Yet, since George's
ability to actually hit Stephanie or her son need not be proved, and because Turner's testimony alone
could be sufficient to support the deadly weapon finding, we find when the evidence is viewed in
the light most favorable to the verdict, it is legally sufficient to establish that the chair leg was a
deadly weapon. Miller, 741 S.W.2d at 503; English, 647 S.W.2d at 668–69.
III. The Evidence Is Factually Sufficient to Support George's Conviction
Because factual sufficiency is an issue of fact, we are not free to reweigh the evidence and
set aside a judgment merely because we feel a different result is more reasonable. Clewis, 922
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S.W.2d at 135. Instead, we give due deference to the fact-finder's determinations and will find the
evidence factually insufficient only when necessary to prevent manifest injustice. Johnson,
23 S.W.3d at 8–9, 12; Clewis, 922 S.W.2d at 133, 135. Thus, we view the evidence in a neutral light
when assessing factual sufficiency and determine whether the proof of guilt is so obviously weak as
to undermine confidence in the verdict, or, if taken alone, is greatly outweighed by contrary proof
so as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997); Harris v. State, 133 S.W.3d 760, 764 (Tex. App.—Texarkana 2004, pet.
ref'd). If we find the evidence factually insufficient, we must vacate the conviction and remand the
cause for a new trial in order to avoid substituting our own judgment for that of the fact-finder.
Clewis, 922 S.W.2d at 133–35.
The evidence recounted above supports the finding that George intentionally or knowingly
threatened Stephanie and Jonathan with imminent bodily injury while exhibiting a deadly weapon.
See TEX . PENAL CODE ANN . §§ 22.01(a)(2), 22.02(a)(2). We cannot say that the trial court's finding
was clearly wrong or was against the great weight and preponderance of this evidence, which is
factually sufficient to support the conviction.
IV. Written Judgment Must Be Reformed
Where there is a variation between the oral pronouncement of sentence and the written
memorialization of the sentence, the oral pronouncement controls. Thompson v. State, 108 S.W.3d
287, 290 (Tex. Crim. App. 2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
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While George was orally sentenced to two thirty-five-year concurrent sentences for aggravated
assault of Stephanie and her son, the written judgment reflects George is to serve two life sentences
for the same crimes. This Court has the authority to reform the judgment sua sponte in order to
"make the record speak the truth." TEX . R. APP . P. 43.2(b); French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd). We
therefore modify the judgment to reflect the oral pronouncement at trial.
V. Conclusion
Based on a finding that the evidence is legally and factually sufficient, we affirm George's
conviction of aggravated assault committed against Jonathan. Also, we modify the judgment to
conform with the oral pronouncement at trial and reform George's judgment and sentence to
confinement for thirty-five years, to run concurrently with the sentence in cause number 06-08-
00056-CR.
Jack Carter
Justice
Date Submitted: September 29, 2008
Date Decided: October 22, 2008
Do Not Publish
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