Garland Gaybriel Berry v. The State of Texas--Appeal from 22nd District Court of Caldwell County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1994 » Garland Gaybriel Berry v. The State of Texas--Appeal from 22nd District Court of Caldwell County

State: Texas

Court: Texas Northern District Court

Docket No: 03-94-00708-CR

Case Date: 12/21/1994

Plaintiff: Timothy E. Thompson and Pamela Thompson

Defendant: Bradley O. King, M.D., et al--Appeal from 114th District Court of Smith County

Preview:Minh Phouc Chung v. The State of Texas--Appeal from 351st District Court of Harris County
11th Court of Appeals Eastland, Texas Opinion Minh Phouc Chung Appellant Vs. Nos. 11-03-00203-CR & 11-03-00204-CR -- Appeals from Harris County State of Texas Appellee Minh Phouc Chung appeals his conviction by a jury of the offenses of aggravated assault on a public servant[1] and possession of less than one gram of cocaine.[2] The jury assessed his punishment for aggravated assault on a public servant at 40 years in the Texas Department of Criminal Justice, Institutional Division, and at 6 years in the Texas Department of Criminal Justice, Institutional Division, for the possession of cocaine. He contends in a single issue that the evidence was legally and factually insufficient to support his conviction for the offense of aggravated assault on a public servant. We affirm as to both convictions. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Cr.App.2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Cr.App.1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Cr.App.), cert. den=d, 522 U.S. 844 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

In order to determine if the evidence is factually sufficient, we must review all of the evi-dence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Cr.App. April 21, 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). In performing this review, we are to give due deference to the fact finder=s determinations. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Cr.App.2000); Clewis v. State, supra at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice. Johnson v. State, supra at 9, 12; Cain v. State, supra at 407. A person commits the offense of assault if he or she intentionally or knowingly threatens another with imminent bodily injury. TEX. PENAL CODE ANN. ' 22.01(a)(2) (Vernon Supp. 2004 - 2005). Aggravated assault occurs if, in the course of committing an assault under Section 22.01 (a)(2), the person uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. ' 22.02(a)(2) (Vernon Supp. 2004 - 2005). An offense under Section 22.02(a)(2) is a first degree felony if the offense is committed against a person that the actor knows is a public servant while the public servant is lawfully discharging an official duty. TEX. PENAL CODE ANN. ' 22.02(b)(2) (Vernon Supp. 2004 - 2005).

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Officer Jason Campbell of the Houston Police Department testified that he was conducting a narcotics investigation at the Broadway Park Apartments on November 12, 2002. He indicated that, while he and his partner were watching a particular area of the apartments near midnight or one o=clock a.m., Chung drove and parked in an area that was not designated for any type of parking. He said that Chung walked toward the apartments he and his partner were watching and then returned to his car five minutes later.

Officer Campbell testified that he and his partner, while in full police uniform, approached Chung to see if he lived there. He indicated that, after they had identified themselves as police officers, Chung started yelling and running back toward the apartment area from which he had come. Officer Campbell stated that his partner chased Chung, while he went to try to cut him off. Officer Campbell said that, when he encountered Chung, Chung had a gun in his right hand. Officer Campbell indicated that the gun was up in the air, not down by his side or in his waistband. Officer Campbell testified that he yelled: AGun,@ and that Chung turned toward Officer Chris Sturdivant and pointed his gun at him. Officer Campbell said that Officer Sturdivant struck Chung=s hand two or three times before he released the weapon. Officer Sturdivant testified about the officers approaching Chung and about their chasing him when he ran after they had identified themselves. He stated that, when Officer Campbell yelled: AGun,@ he saw Chung with the gun in his hand rotating toward him. He said that he was in fear. He indicated that it all happened very fast. He said that Chung had the gun pointed at his gut. He related that he then struck Chung on the arm with his flashlight several times until Chung released the weapon. Chung testified that, after going to an apartment seeking drugs, he saw police officers. He said that as soon as he saw them, he dropped his gun and lay on the ground. He indicated that he was afraid the officers would shoot him if he had a gun in his hand. He stated that the officers arrested him but did not hit him. We find that the evidence is legally and factually sufficient to support Chung=s conviction for aggravated assault on a public servant. While Chung suggests that the gun was only incidentally pointed toward the officers, the jury could reasonably have determined from the evidence that Chung intentionally pointed the gun at the officers. We overrule Chung=s sole issue which relates solely to his conviction for aggravated assault on a public servant. He presents no issue with respect to his conviction for possession of cocaine. The judgments in both cases are affirmed. PER CURIAM September 30, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and Hill, S.J.[3]

[1]Cause No. 11-03-00205-CR. [2]Cause No. 11-03-00204-CR. [3]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.

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