Johnny Walker, Jr. v. State ( 1993 )

Walker v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-128-CR

     JOHNNY WALKER, JR.,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 18,652

O P I N I O N

      Johnny Walker, Jr. appeals his conviction for aggravated assault. He was found guilty by a jury, and, as a result of one prior felony conviction that enhanced the range of punishment, the jury assessed punishment at fifteen years in prison and a $1000 fine.

      In point one Walker contends that the trial court erred in denying his motion for mistrial. Walker's argument and authorities under point of error one consist of a statement of facts indicating that Ron Roark, a police officer who testified for the State during the guilt-innocence phase of the trial, had a three- to four-minute conversation with three of the jurors during a break before the punishment phase of the trial. Walker's brief, however, fails to present any argument or authorities suggesting that Roark's conversation was in any way improper or prejudicial. Although Walker cites article 36.06 of the Texas Code of Criminal Procedure and Rule 613 of the Texas Rules of Criminal Evidence, as well as article 36.22 of the Texas Code of Criminal Procedure, he makes no attempt to direct this court's attention to any evidence that Roark conversed with a juror or any other person "about the case." In fact, Roark and each of the three jurors testified that they did not discuss the case, the defendant, or their jury service in any way. Because Walker's brief wholly fails to present a meritorious complaint, we overrule point of error one.

      In point two Walker contends that the trial court erred during the punishment stage of the trial in admitting State's exhibit 15, a fingerprint card, and State's exhibit 16, a penitentiary packet, because Max Chester testified on direct examination that he did not consider himself an expert. Chester, a fingerprint examiner with the Dallas County Sheriff's Office, testified that he had fifteen years' experience examining fingerprints, had attended advanced latent fingerprint schools taught by the Dallas Sheriff's Academy and the FBI, and had testified as an expert nearly two thousand times. According to Chester, State's exhibit 15 was a set of fingerprints that he had taken from Walker, whom he identified at trial as the defendant. Although Walker objected to the admission of the exhibits, he failed to object to Chester's testimony. Chester testified, without objection, that he compared Walker's fingerprints to the fingerprint page contained in the penitentiary packet and that, in his opinion, they were made by the same individual. Therefore, any error in the admission of the exhibits was cured when the same evidence came in by Chester's testimony. As a result, we overrule point of error two.

      In point three Walker contends that the evidence is insufficient to support his conviction for aggravated assault because there is no evidence that the victim "was in fear of imminent bodily injury or death." In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The essential elements of aggravated assault are defined by sections 22.01 and 22.02 of the Texas Penal Code. The indictment alleged that Walker "did then and there intentionally and knowingly threaten MIKE CONNER with imminent bodily injury and did then and there use a deadly weapon, to-wit: a firearm." The jury found Walker "guilty as charged in the indictment."

      Essentially, Walker argues that there is no evidence that he placed Conner "in fear of imminent bodily injury or death," citing Devine v. State. In Devine, however, the court was reviewing the sufficiency of the evidence to support a conviction for robbery. An element of robbery, as defined by section 29.02 of the Penal Code, is that a person "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Fear of imminent bodily injury or death, however, is not an element of assault, as defined by section 22.01 of the Penal Code. Instead, the State must prove, and in this case the jury found, that Walker intentionally or knowingly threatened Conner with imminent bodily injury. Threats can be communicated by conduct as well as by words. Conner, a Wal-Mart security guard who followed Walker from the store to inquire about stolen clothes, testified that, as he approached Walker's car, Walker pointed a gun at him. Conner backed off, and Walker drove away. The pointing of the gun alone establishes the threat. These facts, when viewed in the light most favorable to the verdict, are sufficient for a rational trier of fact to have concluded beyond a reasonable doubt that Walker committed aggravated assault. We overrule point of error three.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 17, 1993

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