Orrick Nero v. The State of Texas--Appeal from 241st District Court of Smith County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-04-00081-CR

Case Date: 12/22/2004

Plaintiff: Vecentie Morales, Jr.

Defendant: The State of Texas--Appeal from 29th District Court of Palo Pinto County

Preview:Vecentie Morales, Jr. v. The State of Texas--Appeal
from 29th District Court of Palo Pinto County
11th Court of Appeals
Eastland, Texas
Opinion
Vecentie Morales, Jr.
Appellant
Vs. Nos. 11-03-00087-CR & 11-03-00088-CR B Appeals from Palo Pinto County
State of Texas
Appellee
Following a joint trial for the aggravated assaults[1] of two public servants, the jury convicted Vecentie Morales, Jr. of
both offenses. During a recess before the punishment phase of trial, appellant withdrew his request for the jury to
assess punishment and agreed to submit the punishment issue to the court (with the understanding that the State would
recommend 27 years confinement in each case). The court assessed punishment at 27 years confinement in each case
and gave permission for appellant to appeal. We affirm the convictions.
The Indictments
The two indictments are identical, except for the names and occupations of the complainants. The indictments charged
that, on or about June 21, 2002, appellant did then and there intentionally or knowingly threaten each of the
complainants with imminent bodily injury; that appellant did then and there use or exhibit a deadly weapon, to-wit: a
firearm, during the commission of each offense; and that appellant then knew that each complainant was a public
servant who was lawfully discharging an official duty.
One indictment (No. 12094 in the 29th District Court of Palo Pinto County and No. 11-03-00087-CR in this court)
involved the aggravated assault of Michael Craig Goen, a lake ranger for the Brazos River Authority. The other
indictment (No. 12095 in the 29th District Court of Palo Pinto County and No. 11-03-00088-CR in this court)
involved the aggravated assault of Tommy Shawver, a deputy sheriff for Palo Pinto County.
Issues for Review
Appellant filed a joint brief for both appeals, arguing in Issue No. 1 that there was insufficient evidence to convict him
for the aggravated assault of either the lake ranger or the deputy sheriff. Appellant argues in his other issues that the
trial court erred: (Issue No. 2) in allowing the State to question appellant about whether he intended to call a certain
witness; (Issue No. 3) in allowing one of the State s witnesses to bolster the testimony of the two complainants; (Issue
No. 4) in allowing testimony as to extraneous offenses ; and (Issue No. 5) in refusing a requested jury charge.
Testimony by Deputy Shawver
Tommy Shawver testified that he was currently employed by the Graham Police Department and that he had been a
deputy with the Palo Pinto County Sheriff s Department on June 21, 2002. Deputy Shawver testified that he received a
call from the Chief Lake Ranger for Possum Kingdom Lake at about 11:00 a.m. and that he went to the Bluff Creek
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Marina at Sportsman=s World. Deputy Johnny McKee arrived a few minutes later.
Deputy Shawver identified appellant and said that, when he told appellant that he needed to talk to him, appellant got
into his pickup and locked the door. Appellant did not comply with an instruction to get out of his vehicle; appellant
put the pickup in drive and went forward while the deputy was standing there. Deputy Shawver testified that he back
peddled pretty fast and that appellant s pickup struck Deputy McKee s car as appellant drove between the deputy s car
and the gate post. Deputy McKee got into his car and chased appellant until appellant wrecked out his pickup and his
trailer (which was carrying two Sea-Doo jet skis).
Appellant had a gun in his hand when he left the scene of the wreck. Deputy Shawver and several other officers tried
to secure the perimeter and conduct a search for appellant. When they received information that appellant was near the
Roy Davis residence, Deputy Shawver and Lake Ranger David Carlyle ran up there on foot. Deputy Shawver testified
about appellant s threat[2] when they came into contact with him while they were about 15 feet apart; his testimony
reads as shown:
Q: Okay. What happened?
A: He was telling me to stay right there. At that time he was pointing his gun at me, telling me to stay right there.
(Emphasis added)
Deputy Shawver also testified that he was wearing his sheriff s department uniform; that there were several other
deputies and lake rangers involved in appellant=s arrest; and that, at the time that appellant pointed the gun at him, he
was in fear for his life.
Testimony by Ranger Goen
Michael Craig Goen testified that he was a lake ranger for the Brazos River Authority and a certified peace officer
under the laws of this State. Lake Ranger Goen identified appellant and testified about the events on June 21, 2002.
Relevant portions of his testimony read as shown:
Q: Okay. And what happened when you came in contact with [appellant] again the second time?
A: I was standing behind a cedar tree in a wooded area and had my pistol drawn. And as he approached, I ordered him
to drop his weapon and get on the ground.
Q: Did he comply with your order?
A: No, sir.
Q: What did he do?
A: He pulled the pistol away from his head and pointed it at me, and said, Get the f - - k back. Get the f - - k back.
(Emphasis added)
Lake Ranger Goen testified that he was looking straight down the barrel of appellant s gun and that he was threatened
with imminent bodily injury. Lake Ranger Goen testified that he was attempting to discharge an official duty, that he
was dressed in his uniform, and that he had his badge displayed. Lake Ranger Goen also testified that he would have
shot appellant, if Deputy Shawver had not walked between them, because appellant threatened him with a gun.
Testimony by State s Other Witnesses
Four other witnesses were called by the State to testify about various aspects of the search and arrest on June 21, 2002.
They were Johnny McKee, a certified peace officer who was a reserve deputy sheriff for Palo Pinto County; David
Carlyle, a certified peace officer who was a lake ranger for the Brazos River Authority; Robert Box, a certified peace
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officer who was a lake ranger for the Brazos River Authority; and James N. Oakerson, chief deputy sheriff for Palo
Pinto County.
Appellant=s Testimony
The record shows that, while the jury was outside the courtroom at the end of the State s case-in-chief, appellant told
the court that he wanted to tell the jury what happened that day and to give the jury his side of the story. The record is
clear that appellant insisted upon testifying, against the advice of his court-appointed lawyer and after careful
admonishments by the trial court. After the jury returned, appellant testified that he was 30 years old and that he had
graduated from high school in 1991. Appellant told the jury that he had been in custody since his arrest on June 21,
2002. On that morning he was at the Bluff Creek Marina when two officers arrived. Appellant testified that he was
scared when he saw the officers because he was on probation out of Oklahoma. Appellant admitted that he tried to
evade arrest, but he testified that the officer was not in front of his vehicle when appellant was pulling out of the
marina. Appellant agreed that he was reckless, but he said that he did not ever intend to run over anyone. Appellant s
testimony about his conduct after the wreck reads as shown:
Q: Okay. What were you intending to do at that point when you were inside your truck? What were you intending to
do?
A: At that point...I just wanted to kill myself.
Q: Did you ever point a gun at any officers out there?
A: No, I did not.
Q: Did you ever point a cell phone at any of the officers?
A: Yes, I did. (Emphasis added)
Issue No. 1 - Sufficiency of the Evidence
This court has reviewed all of the evidence pursuant to Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Jackson v.
State, 17 S.W.3d 664, 669 (Tex.Cr.App.2000). The evidence is sufficient to support the jury=s finding that appellant
intentionally and knowingly threatened both officers with imminent bodily injury when he pointed his gun at them.
Further, the evidence which supports the verdict is not Agreatly outweighed@ by proof to the contrary. The jury had
the right to believe all or any part of the testimony of any of the witnesses. See, e.g., TEX. CODE CRIM. PRO. ANN.
art 36.13 (Vernon 1981). Issue No. 1 is overruled.
Issue No. 2 - Cross-Examination of Appellant
Appellant=s brief refers to the State=s cross-examination of appellant about whether Roy Whisenhunt was Agoing to
come down here and clear all this up about that being his gun.@ The record shows that no objection was made to the
State=s question; consequently, the complaint has not been preserved for appellate review. See TEX.R.EVID.
103(a)(1) and TEX.R.APP.P. 33.1. Issue No. 2 is overruled.
Issue No. 3 - Allowing a Witness to ABolster@ Testimony
Appellant=s brief refers to testimony by Chief Deputy Oakerson that he knew Lake Ranger Goen and Deputy Shawver
and that they were Atrustworthy and credible.@ The trial court sustained appellant=s objection to that testimony.
There was no motion to strike the testimony; consequently, the complaint has not been preserved for appellate review.
See Rule 103(a)(1) and Rule 33.1. Issue No. 3 is overruled.
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Issue No. 4 - Claim of Extraneous Offense Testimony
Appellant argues that the trial court erred in allowing testimony as to extraneous offenses, and his brief refers to this
portion of his testimony during cross-examination:
Q: [Y]ou just decided you might be better off keeping the gun in your [pickup]?
A: No, the gun wasn t mine, sir.
Q: Well, you thought you might have a use for that gun, so it might be handy to have [it] there next to you?
A: No.
Q: You knew that gun was in your [pickup] when you left that morning, didn t you?
A: Yes, I did....I knew I didn t take it out.
Q: You knew it was against the law for you to carry a hand gun...because you were a felon from Oklahoma, didn t
you?
A: Yes, sir.
Q: I ll show you State s Exhibit No. 13 [the ammunition] and ask you where you kept this in your [pickup]? Where
were you keeping that in your [pickup]?
A: Stayed in the same [red bag that had the gun and holster].
Q: Okay. And you knew that was in there, didn t you?
A: Uh-huh.
Q: What s Roy s name?
A: Whisenhunt [this was the potential witness who was discussed in connection with Issue No. 2].
[PROSECUTOR]: We ll offer State s Exhibit 13 [the ammunition].
[DEFENSE COUNSEL]: Your Honor, I would just ask for a limiting instruction on what the jury can consider that for.
I mean, he didn t carry it around with him, it was found in the car.
THE COURT: Well, what do you want me to limit it to?
[DEFENSE COUNSEL]: I want to limit that to - - that it wasn t used in the alleged commission of anything, it was
found in the car. They can consider it for that evidence.
THE COURT: Well, I ll deny the request for the limiting instruction. And State s Exhibit 13 is admitted into evidence.
Appellant cites Lockhart v. State, 847 S.W.2d 568, 571 (Tex.Cr.App.1992). We note that the opinion in Lockhart notes
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that evidence of offenses which are indivisibly connected to the charged offense are admissible to explain the context
of the offense for which appellant was being tried. The trial court did not err in allowing this testimony or by
overruling the request for a limiting instruction. Further, any theoretical error must be disregarded under
TEX.R.APP.P. 44.2(b). Issue No. 4 is overruled.
Issue No. 5 - Requested Jury Charge
After the evidence was closed, the trial court gave its proposed charges in both cases to the attorneys of record and
asked if there were any objections to the charges or requests for additional instructions. Appellant s trial counsel asked
for a lesser included charge on deadly conduct and also on evading arrest or detention. The trial court=s ruling reads as
shown:
THE COURT: All right. The Court will consider such requests for additional instructions to have been timely
made....And they are hereby denied.
In ruling on the requests, specifically, the [TEX. PENAL CODE ' 22.05(a) (Vernon 2003) Deadly Conduct ] request, I
ll just state that the predominant factor in the Court s consideration about whether to submit that is...the defendant s
testimony itself. [The trial court also pointed out that evading arrest is not a lesser included offense of aggravated
assault on a public servant.]
The trial court did not err in refusing the requested charges. The evidence would not permit the jury to rationally find
that appellant was guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App.), cert. den d,
510 U.S. 919 (1993). If the jury had believed appellant=s testimony that he did not point his gun at the officers, he
would not have been guilty of either deadly conduct or aggravated assault. Issue No. 5 is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
BOB DICKENSON
SENIOR JUSTICE
April 22, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, J., and
McCall, J., and Dickenson, S.J.[3]
[1]TEX. PENAL CODE ANN. ' 22.02(a) (Vernon Supp. 2004) provides that a person commits the offense of
Aaggravated assault@ if he or she Auses or exhibits a deadly weapon@ during the commission of an assault. TEX.
PENAL CODE ANN. ' 22.02(b) (Vernon Supp. 2004) provides that the offense is a felony of the first degree if the
assault is committed against a public servant who is lawfully discharging an official duty.
[2]TEX. PENAL CODE ANN. ' 22.01(a)(2) (Vernon Supp. 2004) provides that a person commits the offense of
Aassault@ if he or she Aintentionally or knowingly threatens another with imminent bodily injury.@
[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
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