                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-09-00386-CR


ANTHONY GERALD DANKO A/K/A                                      APPELLANT
ANTHONY DANKO

                                       V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                              I. INTRODUCTION

     Appellant Anthony Gerald Danko a/k/a Anthony Danko appeals his

convictions for three counts of aggravated assault on a public servant with a

deadly weapon, to wit: a firearm.     In three issues, Danko argues that the




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      See Tex. R. App. P. 47.4.
evidence is insufficient to sustain his conviction and that the prosecutor engaged

in improper argument during the State‘s closing argument. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Danko was going through a divorce. He sent his sister a disturbing text

message suggesting that he was contemplating suicide. She went to his home

to check on him, but he would not answer the door or his phone. Fearing the

worst, she called 911.     The Fort Worth fire department was dispatched to

Danko‘s home regarding an attempted suicide.          Four firefighters arrived at

Danko‘s home at around 9:00 p.m.; all the lights in the house were off and

Danko‘s car was not in the driveway, but Danko‘s sister insisted that he was

inside the house. She told Fort Worth Fire Department Lieutenant Mark Keller

that Danko owned a gun.

      Fort Worth Police Officers Craig Thomas, Julio Argueta, and John David

Riggall arrived shortly and knocked on Danko‘s door, identifying themselves as

Fort Worth police officers. When no one answered, they used flashlights to look

into the windows of the house to determine if anyone was inside. They did not

see anyone inside the house. Officer Thomas called his supervisor and received

permission to force entry into Danko‘s house. Officer Argueta volunteered to kick

in the door, but after two unsuccessful attempts, the men decided to use a

sledgehammer. The four firefighters and the three police officers stood outside

the front door, the police officers drew their weapons and shouted, ―[P]olice,‖ and

one firefighter, Daniel Terrell, struck the door nine or ten times with a


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sledgehammer before the lock gave way. When the door swung open, Danko

was standing in the entranceway; he was holding a drinking glass in one hand

and a revolver in the other. He was holding the revolver down to his side, with it

pointed to the floor. The police officers began yelling for him to ―drop the gun,

drop the gun.‖     Instead, Danko raised the gun toward the officers and the

firefighters, and Officer Thomas responded by raising his own gun. Afraid that

Danko would pull the trigger, Officer Thomas fired his gun at Danko four times,

until Danko dropped to the ground. Danko was shot in the hand and the chest,

but he survived.

      Fort Worth Officer Lori Scheiern, who works the crime scene search unit,

and Dorsa Meter, who is the range master for the Fort Worth Police Department,

inspected Danko‘s gun and determined that it was fully loaded and that one of

the bullets from Officer Thomas‘s gun hit the barrel of Danko‘s gun and entered

the chamber of that gun. Officer Scheiern concluded that, based on the damage

to Danko‘s gun, both guns were pointed directly at each other when the bullet

from Officer Thomas‘s gun struck Danko‘s gun.

      Danko was charged with three counts of aggravated assault on a public

servant, one for each of the three officers involved. The jury convicted him of

each count and assessed his punishment at five years‘ imprisonment for the first

count and at ten years‘ imprisonment for the second and third counts; the jury

recommended that the ten-year sentences for counts two and three be

suspended and that Danko be placed on community supervision. The trial court


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sentenced Danko accordingly, ordering that the ten-year sentences in counts two

and three be suspended for ten years.

                          III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Danko argues that the evidence is factually insufficiency

to support his conviction. After Danko filed his brief but before oral argument in

this court, the court of criminal appeals handed down its decision in Brooks v.

State, holding that there is no meaningful distinction between the factual

sufficiency standard and the legal sufficiency standard. See 323 S.W.3d 893,

902 (Tex. Crim. App. 2010). During oral argument, Danko‘s appellate counsel

stated that Brooks ―foreclosed‖ Danko‘s factual sufficiency complaint, and he

requested that we not address his first issue. [oral]   Consequently, we overrule

Danko‘s first issue.

      In his third issue, Danko argues that the evidence is legally insufficient to

sustain his conviction for aggravated assault on Officer Argueta, a public servant,

because no evidence showed that the officer perceived a threat.

                              A. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).


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      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, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead,

we Adetermine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.

2007). We must presume that the factfinder resolved any conflicting inferences

in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326,

99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. The standard of review is the

same for direct and circumstantial evidence cases; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Clayton, 235

S.W.3d at 778; Hooper, 214 S.W.3d at 13.




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             B. Law on Aggravated Assault on a Public Servant

      A person commits the offense of aggravated assault on a public servant

with a deadly weapon if he (1) intentionally or knowingly (2) threatens a person

(3) that the actor knows to be a public servant (4) with imminent bodily injury (5)

while the public servant is lawfully discharging an official duty and (6) employs a

deadly weapon in the assault.       See Tex. Penal Code Ann. §§ 22.01(a)(2),

22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2010).

      ―‗The display of a deadly weapon of and within itself constitutes a threat of

the required imminent harm.‘‖ Sosa v. State, 177 S.W.3d 227, 231 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (quoting Robinson v. State, 596 S.W.2d 130,

133 n.7 (Tex. Crim. App. 1980)); cf. Peterson v. State, 574 S.W.2d 90, 92 (Tex.

Crim. App. [Panel Op.] 1978) (holding that ―implicit in the allegation that a ‗Deadly

Weapon‘ was used to threaten the complainant is the possibility that the

complainant was threatened with death as well as bodily injury‖).

                        C. Sufficient Evidence of Threat

      Officers Riggall and Thomas, the complainants named in counts one and

three of the indictment, both testified at trial, but Officer Argueta was unavailable

to testify. Consequently, Danko argues that the evidence is insufficient to sustain

his conviction for aggravated assault on Officer Argueta (count two) because no

evidence shows that Officer Argueta ―saw Mr. Danko‘s gun or that he ever

perceived a threat.‖




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      The testimony at trial established that Officers Riggall, Thomas, and

Argueta, in addition to four firefighters, were all standing in close proximity to

Danko‘s front door when Terrell broke down the door, that Danko was standing

just inside the entrance and facing the door when the door swung open, and that

he raised his gun and pointed it directly at the firefighters and police officers.

Officer Thomas testified that Officer Riggall and Officer Argueta were standing a

little in front of him and to the left when the door swung open and that the three

officers ―kind of made a semicircle‖ around two of the firefighters. Officer Riggall

and Officer Thomas both testified that they saw Danko raise and point his gun at

them and that they felt threatened by that action. Lieutenant Keller testified that

Danko raised the gun ―point blank‖ toward the officers and firefighters and that he

immediately thought, ―One of us is going to get shot right now . . . .‖ Terrell

testified that Danko pointed his gun ―directly at me and the three officers that

were standing to my immediate right,‖ that all of the officers and the firefighters

were ―within a few feet of a gun pointed at us,‖ and that he thought he was going

to get shot. And significantly, Officer Riggall recalled hearing Officer Argueta yell

at Danko to ―drop the gun‖ when Danko raised the gun, and Officer Riggall

testified that he believed Officer Argueta saw the gun before he did.

      This testimony establishes not only that Danko pointed a gun at the

officers and firefighters but also that Officer Argueta saw the gun; Danko‘s

display of a gun was sufficient to establish the required threat of imminent bodily

harm. See Robinson, 596 S.W.2d at 133 n.7; Sosa, 177 S.W.3d at 231 (holding


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sufficient evidence of threat when two eyewitnesses, but not victim, testified that

defendant held gun in his hands, demanded money, and walked in and out of

bedroom where victim was laying on the floor); Villatoro v. State, 897 S.W.2d

943, 945 (Tex. App.—Amarillo 1995, pet. ref‘d) (―Since firearms are deadly

weapons, . . . the testimony revealing that Appellant pointed such a weapon at

Jones was enough to support his conviction beyond reasonable doubt.‖ (citation

omitted)). Viewing the evidence in the light most favorable to the verdict, we

conclude that a rational trier of fact could have found beyond a reasonable doubt

that Danko committed aggravated assault on Officer Argueta, a public servant.

See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B); Jackson,

443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we

overrule Danko‘s third issue.

                          IV. IMPROPER JURY ARGUMENT

      In his second issue, Danko argues that the State‘s closing arguments

during the guilt/innocence stage of trial improperly urged the jury to convict him of

aggravated assault so it could assess a greater punishment than the punishment

available if the jury found him guilty of the lesser offense of deadly conduct. The

trial court‘s charge to the jury included instructions on the lesser offense of

deadly conduct. During the State‘s closing argument, the first prosecutor argued:

            [Prosecutor]: Now, with regard to the charge, what you have
      here is three counts of aggravated assault on a public servant, and
      in each one of those three counts, you have a lesser offense, a
      lesser misdemeanor offense of deadly conduct.



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            [Defense Counsel]: I object to the characterization that it‘s a
      lesser misdemeanor offense. That‘s improper, and I object.

             THE COURT: Sustained.

             [Defense Counsel]: And I ask for an instruction to disregard.

            THE COURT: Well, you know that you are not to consider
      anything that‘s sustained.

             [Defense Counsel]: Move for a mistrial.

             THE COURT: Denied.

             [Prosecutor]: You have a lesser offense of deadly conduct.

            [Defense Counsel]:       I object.       I object, the repeated
      characterization of ―lesser‖ –

             THE COURT: Overruled.

      At the end of the State‘s rebuttal closing argument, the second prosecutor

argued, ―And Lieutenant Keller, I think from this witness stand, sums up what

was going through those seven individuals‘ minds, and this will tell you why it‘s

not just deadly conduct. Deadly conduct sounds bad in the charge, but it‘s not

nearly as bad as aggravated assault.‖ Defense counsel objected, arguing that

the trial court had previously sustained his objection to the same argument by the

first prosecutor, and the trial court overruled the objection.




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                             A. Standard of Review

      To be permissible, the State‘s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973).

      When a trial court sustains an objection and instructs the jury to disregard

but denies a defendant‘s motion for a mistrial, the issue is whether the trial court

abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72,

76–77 (Tex. Crim. App. 2004).        Only in extreme circumstances, when the

prejudice caused by the improper argument is incurable, i.e., ―so prejudicial that

expenditure of further time and expense would be wasteful and futile,‖ will a

mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.

Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).

                           B. Argument Not Improper

      Danko argues that the Texas Court of Criminal Appeals‘s decision in

McClure v. State is ―on ‗all fours‘ with this case.‖ See 544 S.W.2d 390, 393–394

(Tex. Crim. App. 1976). In McClure, the court of criminal appeals reversed and

remanded a conviction based on the prosecutor‘s repeated argument that the

jury should convict the defendant of murder because it had a greater punishment

range than that available for manslaughter. Id. at 393–95. The court of criminal


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appeals held that the argument was improper because it ―was a plea to the jury

to consider the amount of punishment, rather than the facts, in determining the

offense for which appellant should be convicted.‖ Id. at 395.

         Here, unlike in McClure, the complained-of arguments—that deadly

conduct is a lesser misdemeanor offense and is not as bad as aggravated

assault—did not urge the jury to convict Danko based on a punishment range

instead of the facts. The complained-of comments are more analogous to the

prosecutor‘s argument in Hart v. State, in which the prosecutor informed the jury

that one of the lesser included offenses was a misdemeanor. See 581 S.W.2d

675, 678–79 (Tex. Crim. App. [Panel Op.] 1979). In Hart, the court of criminal

appeals held that the prosecutor‘s argument was proper and explained that ―[t]he

harm is not in informing the jury concerning punishment, but argument for

conviction based on punishment.‖ See id. (distinguishing McClure).

         In Danko‘s case, the first prosecutor mentioned the classification of the

deadly conduct offense in the context of explaining how to read the charge. She

explained that ―the way it works‖ is that the jury must first determine whether the

State proved beyond a reasonable doubt that Danko committed aggravated

assault on a public servant and, if not, ―move to the next part, which is deadly

conduct.‖ The prosecutor argued that the facts of the case show that Danko

committed aggravated assault on a public servant, rather than deadly conduct,

and she urged the jury to read the charge in its entirety and apply the law to the

facts.    The second prosecutor built onto the first prosecutor‘s argument and


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explained why the facts of the case showed that Danko had committed the

greater offense of aggravated assault. The prosecutors did not comment on the

punishment assigned to the offenses, did not refer to the classification for the

greater aggravated assault offense, and did not argue that certain convictions

would carry heavier sentences. See id.; see also Matini v. State, No. 05-03-

00686-CR, 2004 WL 1089197, at *6 (Tex. App.—Dallas May 17, 2004, no pet.)

(not designated for publication) (distinguishing McClure because State‘s

comment—―This is not a misdemeanor trespass.          This is a burglary of a

habitation.‖—did not refer to any differences in the range of punishment);

McCullen v. State, 659 S.W.2d 455, 459 (Tex. App.—Dallas 1983, no pet.)

(holding argument that informed jury of different ranges of punishment for

aggravated robbery and aggravated assault not improper when made in the

course of explaining why facts showed defendant committed the greater offense).

      In reviewing the record and in considering the arguments from the

viewpoint of the jury, we do not conclude that the prosecutors‘ arguments urged

the jury to convict Danko of one offense over another because of the difference

in punishment. See Hart, 581 S.W.2d at 678–69. Consequently, we hold that

the State‘s comments were proper, and we overrule Danko‘s second issue.




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                                V. CONCLUSION

      Having overruled Danko‘s three issues, we affirm the trial court‘s judgment.



                                                  SUE WALKER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 20, 2011




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