MARIO ANTOINE LEONARD HALL v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

MARIO ANTOINE–LEONARD HALL, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–09–01263–CR

Decided: March 31, 2011

Before Justices Morris, Bridges and Francis

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant Mario Antoine–Leonard Hall appeals his convictions for unlawful possession of a firearm by a felon (Cause No. F08–41804–UP) and deadly conduct (Cause No. F09–00481–MP).  In four issues, appellant contends:  (1) the trial court erred when the verdict was not read aloud prior to the jury being discharged in F08–41804–UP;  (2) the trial court failed to pronounce sentence in appellant's presence in F08–41804–UP;  (3) the evidence is legally insufficient to support the conviction for deadly conduct in F09–00481–MP;  and (4) the evidence is factually insufficient to support the conviction for deadly conduct in F09–00481–MP.   We affirm.

Background

In November 2008, appellant grabbed his girlfriend at her apartment, causing her to fall.   He was then approached by a group of approximately six young men, who ordered appellant to leave.   Appellant later found the men at a gas station and initiated a fight in the parking lot in front of the gas station building.   He approached the men, removed a gun from his back pocket and fired two shots at the group.   Several of the men and other customers sought shelter inside the store.   Appellant followed them into the building for a few moments and then left the scene.

Sergeant Meyer, an officer with the Mesquite Police Department, was called to the scene.   He testified that he took appellant's voluntary statement after appellant had been arrested and taken to the police station.   At that time, appellant stated he had fired two shots at the men but the gun jammed.   Appellant explained that he went home and “kept the gun with [him]” in case he “needed it later.”   He informed Sergeant Meyer that he had placed the gun in his apartment underneath his bed, where police later seized it.

Officer Smith, another Mesquite officer who reported to the scene, testified he had extensive training and experience as a crime-scene investigator.   He took various photographs of the scene, depicting:  shell casings, spent and unspent cartridges found in the parking lot, and a damaged parking stop, located in front of the gas station building.   Officer Smith testified the “parking stop directly in front of the front doors of the gas station” revealed newly incurred damage, where he found “an actual bullet.”   He affirmed that given the deformation of the bullet, damage to the parking stop, concrete dust, and location of the bullet and casings relative to the parking stop, “a bullet was fired toward the building.”   He also confirmed the casings and bullet were of the same caliber, .25 automatic, as the gun retrieved from appellant's apartment.

The store owner, Mohammad Siddiqi, testified that the building was equipped with a surveillance system that captured the incident.   The State introduced the video into evidence and played it for the jury.   The video revealed appellant walked toward the men across the parking lot and, when he was within a few feet of the group, he fired one shot, turned, and fired a second shot in the direction of the main building as the group dispersed.   A few of the men sought shelter inside the building, and appellant followed them into the store.   Several customers then fled the building, including a woman carrying a small child.   Appellant eventually exited the building and left the scene.

During cross-examination, appellant agreed it is “bad to just have random gunfire in public.”   He explained it “takes courage to approach six guys ․ especially with a gun that small․”  When the prosecutor asked him if he was trying to shoot the people standing in front of the store, appellant answered, “In the parking lot, in front of the store, yes, sir.”   Appellant further admitted to firing a gun in public where there was a store with people inside.

Following the jury's deliberation, the foreperson announced the jury had found appellant guilty in both cases.   At the punishment phase of trial, appellant pled true to all the enhancement allegations in both causes.   The jury heard evidence and assessed punishment at 15 years' confinement in each case.

For the purposes of receiving the punishment verdict, the district judge, Mike Snipes, presided for the trial court judge, Lana Myers.   Judge Snipes announced that, in Cause Number F09–00481–MP (deadly conduct charge), the jury had found appellant guilty and assessed his punishment at 15 years in prison.   He then dismissed the jury and orally pronounced sentence in that cause.   The prosecutor then asked if the “second case” was “15 years as well,” and the judge, apparently unaware there were two causes, responded that “[w]ith regard to Cause Number F08–41804 [unlawful possession of a firearm charge], in that case, it was also a sentence of 15 years, and that sentence would run concurrently with the other case.   You were found guilty in that case.”   Judge Snipes then asked the parties if they had “anything else,” to which both parties responded they did not, and he adjourned the proceedings.   This appeal ensued.

Analysis

In his first issue, appellant contends the trial court failed to comply with article 37.04 when the verdict was not read aloud prior to the jury being discharged in Cause No. F08–41804–UP (UPF felon charge).   See Tex.Code Crim. Proc. Ann. Art. 37.04 (West 2006).   In his second issue, appellant argues the trial court failed to comply with article 42.03, § 1 when the trial court did not pronounce sentence in appellant's presence in Cause No. F08–41804–UP (UPF felon charge).   See Tex.Code Crim. Proc. Ann. Art. 42.03 § 1 (West Supp.2010).

In order to preserve a complaint for appellate review, a party must make a timely and specific objection at trial and obtain an adverse ruling.   Tex.R.App. P. 33.1(a).   Except for complaints involving fundamental constitutional systemic requirements, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with this rule.   See Mendez v. State, 138 S.W.3d 334, 338 (Tex.Crim.App.2004).

In this case, after the trial judge read the verdict aloud in the deadly conduct case in appellant's presence and discharged the jury, he afforded the parties an opportunity to respond as follows:

THE COURT:  With regard to Cause Number F08–41804 [unlawful possession of a firearm by a felon], in that case, it was also a sentence of 15 years, and that sentence would run concurrently with the other case.   You were found guilty in that case.   Anything else from the parties?

PROSECUTOR:  Nothing from the State, Your Honor.

DEFENSE COUNSEL:  Nothing from the defense, Your Honor.

We note appellant also did not allege any statutory violation in his motion for new trial.   Appellant, therefore, failed to preserve his article 37.04 and article 42.03, § 1 complaint for appellate review.   See Tex.R.App. P. 33.1(a);  Trinidad v. State, 312 S.W.3d 23, 29 (Tex.Crim.App.2010) (because appellants had an opportunity to object to the trial court's failure to comply with the mandatory procedural requirement, but failed to object, appellant “procedurally defaulted their statutory arguments on appeal”).   We overrule appellant's first two issues.

In his third and fourth issues, appellant argues the evidence was legally and factually insufficient to support his conviction for deadly conduct in Cause No. F09–11481–MP (deadly conduct charge).   We note the Texas Court of Criminal Appeals has overruled Clewis v. State,1 holding the Jackson v. Virginia 2 standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   Therefore, we will address appellant's issue under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 323 S.W.3d at 894–95.   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant knowingly discharged a firearm at or in the direction of a building and was reckless as to whether the building was occupied.   See Tex. Penal Code Ann. § 22.05(b)(2) (West 2003).   Our review of the surveillance video, which was shown to the jury, reveals appellant and the men were in the parking lot directly in front of the gas station building during the altercation.   The discharge from the gunshots is visible on the video.   After the first shot, appellant turned and aimed the second shot at the men fleeing into the gas station building.   He then followed the men into the building, and several customers fled the building, including a woman carrying a small child.

In addition to the video, Officer Smith testified that, based on the physical evidence, he was able to determine that “a bullet was fired toward the building.”   His testimony was corroborated by photographic evidence, which the jury had the opportunity to view.   Officer Smith also confirmed the casings and bullet were of the same caliber as the gun retrieved from appellant's apartment.   Appellant acknowledged the casings and the gun were of the same caliber.

Finally, appellant testified and confirmed he was trying to shoot people “[i]n the parking lot, in front of the store.”   Several of those people were running into the building as appellant fired his gun.   Appellant admitted following them into the store and that he fired a gun in public where there was a store with people inside.

Thus, having examined the evidence in the light most favorable to the verdict, we conclude there was sufficient evidence that appellant knowingly discharged a firearm at or in the direction of a building and was reckless as to whether the building was occupied.   See Tex. Penal Code Ann. § 22.05(b)(2) (West 2003).   The evidence was, therefore, sufficient to support appellant's conviction for deadly conduct in cause no.   F09–11481–MP (deadly conduct charge).   See Jackson, 443 U.S. at 319;  Brooks, 323 S.W.3d at 894–95.   We overrule appellant's third and fourth issues.

Having overruled all of appellant's issues, we affirm the judgment of the trial court.

FOOTNOTES

FN1. 922 S.W.2d 126 (Tex.Crim.App.1996)..  FN1. 922 S.W.2d 126 (Tex.Crim.App.1996).

FN2. 443 U.S. 307 (1979)..  FN2. 443 U.S. 307 (1979).

DAVID L. BRIDGES JUSTICE

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