                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                           No. 07-13-00216-CR


                                 MICHAEL JOHNSON, APPELLANT

                                                    V.

                                 THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 140th District Court
                                        Lubbock County, Texas
                  Trial Court No. 2011-432,709, Honorable Jim Bob Darnell, Presiding

                                           January 26, 2015

                                   MEMORANDUM OPINION
                         Before CAMPBELL and HANCOCK and PIRTLE, JJ.


          Appellant Michael Johnson appeals from his conviction by jury of the offense of

aggravated assault on a public servant1 and the resulting sentence of fifteen years of

imprisonment. Through two issues, appellant contends the trial court erred. We will

affirm.




          1
              TEX. PENAL CODE ANN. § 22.02 (West 2013).
                                      Background


      Testimony showed that on an afternoon in September 2011, a witness called 911

in Lubbock and reported he saw two young males arguing.            The witness told the

dispatcher one of the males was pointing a small black or silver pistol at the other.

When the witness later that day saw the male he had seen with the pistol, he notified

nearby police officers and told them where he saw the man. Officer Spann testified he

spotted the male suspect, later identified as appellant, walking down an alley. Appellant

saw the police car coming toward him and turned and ran.           When another officer

blocked appellant’s path with his car, appellant ran the other direction. The officers

yelled “Police stop” but appellant continued running until he reached the end of the

block where there was no exit.


      Appellant turned around and “square[d] off.” While Officer Spann was yelling for

appellant to “stop, lay down[,]” appellant reached for his right front pocket. Spann

tackled appellant, who fell to the ground with the officer on top of him. The officer was

injured. Appellant continued to reach toward his pocket with his arm as he and Spann

struggled. A third officer arrived and took hold of appellant’s right hand. Once appellant

was restrained, Spann located a loaded gun between appellant’s legs and the concrete.


                                        Analysis


Sufficiency of the Evidence


      In his first issue, appellant contends the evidence was insufficient for the jury to

find beyond a reasonable doubt he used or exhibited a deadly weapon to threaten the


                                            2
officer. The State argues the evidence was sufficient to show use of a deadly weapon to

facilitate the offense. We agree.


        The indictment here stated appellant “intentionally and knowingly threaten[ed]

FRANKLIN SPANN with imminent bodily injury, and did then and there use and exhibit

a deadly weapon, to~wit: a firearm, that in the manner of its use and intended use was

capable of causing death and serious bodily [sic], and the said FRANKLIN SPANN was

then and there a public servant lawfully discharging his official duty, and the said

defendant knew that the said FRANKLIN SPANN was a public servant.”2


        In reviewing whether the evidence is sufficient to support a criminal conviction,

we apply the standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim.

App. 2010). Under that standard, a reviewing court views all the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks, 323 S.W.3d at 894-95, (citing

Jackson, 443 U.S. at 319). As the trier of fact, the jury is the sole judge of the weight

and credibility of witness testimony, and on appeal we defer to the jury's determinations.

Brooks, 323 S.W.3d at 894-95. If the record contains conflicting inferences, we must

presume the jury resolved such facts in favor of the verdict and defer to that resolution.

Id. On appeal, we serve only to ensure the jury reached a rational verdict, and we may


        2
          Alleging in the conjunctive that a defendant used and exhibited a weapon does not require the
State to prove that the defendant did both. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.
1991) (holding that "although the indictment may allege the differing methods of committing the offense in
the conjunctive, it is proper for the jury to be charged in the disjunctive.").

                                                    3
not reevaluate the weight and credibility of the evidence produced at trial and in so

doing substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). The sufficiency standard is the same for both direct and

circumstantial evidence. Wise, 364 S.W.3d at 903. For the evidence to be sufficient, the

State need not disprove all reasonable alternative hypotheses that are inconsistent with

the defendant's guilt. Id. Rather, a court considers only whether the inferences

necessary to establish guilt are reasonable based upon the cumulative force of all the

evidence when considered in the light most favorable to the verdict. Id.


       A person commits aggravated assault if he commits assault under Penal Code

section 22.01 and uses or exhibits a deadly weapon during the commission of the

assault. TEX. PENAL CODE ANN. § 22.02(a)(2). An assault occurs when a person

intentionally or knowingly threatens another with imminent bodily injury. TEX. PENAL

CODE ANN. § 22.01(a)(2). A person can communicate a threat by conduct as well as by

words. Galvan v. State, No. 10-13-00407-CR, 2014 Tex. App. LEXIS 12804, at *5 (Tex.

App.—Waco Nov. 26, 2014, no pet.) (mem. op., not designated for publication). The

offense is a first degree felony if the actor uses or exhibits a deadly weapon during the

commission of the assault and the offense is committed against a person 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)(B).


       Appellant restricts his argument on appeal to the proof related to the use or

exhibition of a deadly weapon and does not assert the evidence is insufficient to prove

any other element of the offense.



                                             4
       The Court of Criminal Appeals in Patterson v. State, 769 S.W.2d 938, 941 (Tex.

Crim. App. 1989), stated that "used . . . a deadly weapon" during the commission of the

offense means that the deadly weapon was employed or utilized in order to achieve its

purpose. On the other hand, “exhibited a deadly weapon" means that the weapon was

consciously shown or displayed during the commission of the offense. Id. “Used. . .

during the commission of a felony offense” refers to the wielding of a firearm with effect,

but also extends to any employment of a deadly weapon, even its simple possession, if

such possession facilitates the associated felony. Id. One can "use" a deadly weapon

without exhibiting it. Id. See also Plummer v. State, 410 S.W.3d 855 (Tex. Crim. App.

2013) (discussing Patterson).


       Here, the evidence was sufficient to show appellant “used” a firearm during his

assault of Officer Spann even though the officer did not see the gun until appellant was

restrained. When Spann responded to the 911 call, he knew the witness had seen

appellant with a gun. When the officers spotted appellant, he ran from them until he

was cornered. Appellant then “squared off” against officers and repeatedly tried to

reach into his pocket. Spann testified, “So when he reaches for his pocket I can't see

his hand going into his pocket. And at this point, I mean, I knew what he was going for,

and – I mean, really and truly you have to assume what he's going for, considering the

original reason we were trying to stop him. He had already pulled a gun on somebody

else.” Appellant continued his attempts to reach for his right pocket during his struggle

with Spann, and the loaded semi-automatic pistol was found on the ground between

appellant’s legs. Spann said he believed the gun fell out of appellant’s pocket during

the scuffle with officers.


                                            5
       Even though Officer Spann did not actually see the gun until after appellant had

been restrained, appellant’s possession of the firearm, coupled with the evidence Spann

knew of his possession of it and appellant’s conduct leading the officer to believe he

was attempting to reach the gun, permitted the jury to conclude appellant employed or

utilized it to achieve his purpose of threatening the officer, such that his possession of

the firearm facilitated the assault by threat. Patterson, 769 S.W.2d at 941; see Herring

v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006) (finding defendant’s statement to

victim of theft that he had a knife, threatened to kill victim and took his money sufficient

to show use of deadly weapon); see generally Arceneaux v. State, 177 S.W.3d 928

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). See also Galvan, 2014 Tex. App.

LEXIS 12804, at *5-6 (finding evidence sufficient to prove defendant used or exhibited a

deadly weapon when he refused to take his right hand out of his jacket pocket after he

encountered officers, struggled with officers, and officers then found a handgun in

defendant’s pocket with his finger on the trigger); McCain v. State, 22 S.W.3d 497 (Tex.

Crim. App. 2000) (presence of item in defendant’s back pocket victim thought was a

knife was sufficient for “use” under the statute, even though defendant never brandished

it in a threatening manner, because victim was afraid that the defendant would use the

knife against her); Moore v. State, 531 S.W.2d 140, 142 (Tex. Crim. App. 1976)

(circumstantial evidence can be sufficient to support a finding that a defendant used a

deadly weapon in the commission of an offense even if the complainant never saw it).


       Taken in the light most favorable to the verdict, the evidence is legally sufficient

to permit a rational trier of fact to conclude beyond a reasonable doubt appellant




                                             6
committed the offense of aggravated assault against a public servant as charged. We

overrule appellant’s first issue.


Jury Argument


       In his second issue, appellant asserts the trial court reversibly erred in failing to

give a curative instruction and in failing to grant a mistrial where, he contends, the State

misled the jury regarding a point of law.


       Appellant focuses on the following statement made by the prosecutor during

closing argument in the guilt-innocence phase of trial:


       where a robber goes into a bank . . . hands the teller a note or says, you know,
       “give me all your money” and then what does he do . . he puts his hands in his
       pocket, . . and then afterwards you find out they found a gun on this individual . . .
       we talked about that as a manner in which someone can use a gun, but we have
       more than that.

       Appellant argues the statement was a misstatement of the law because “merely

possessing a gun where it is not visible to the victim does not meet the legal definition of

using or exhibiting under the circumstances of this case because it does not facilitate

the offense. Therefore, this was a misstatement of the law as was recognized in the trial

court’s sustaining of defense counsel’s objection. This statement was manifestly

improper as it misstated the case law’s definition of what it is to ‘use’ a deadly weapon.”


       Jury argument that misstates the law or that is contrary to the instructions in the

jury charge is improper. Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990);

Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983); Nzewi v. State, 359

S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). In reviewing



                                             7
complaints about comments made during jury argument, appellate courts review the

comments within the context of the entire argument. Railsback v. State, 95 S.W.3d 473,

479 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).


      The defense objection to the prosecutor’s argument stated, “Your honor, I’m

going to object.   That’s a misstatement of the law, the way that he phrased that

example. I’m going to object as improper argument.” The court responded, “The Court

will sustain the objection as far as the statement made.” Counsel continued, “And I’m

going to ask that the jury be instructed to disregard that statement.”         The court

responded, “Sustained.” Counsel then asked for a mistrial, which was denied.


      Appellant’s complaint on appeal that the court erred by failing to give a curative

instruction presents nothing for our review. The court “sustained” appellant’s request for

an instruction that the jury disregard the prosecutor’s statement.        The “essential

requirement” for preservation of a complaint for appellate review “is a timely, specific

request that the trial court refuses.” Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004). The trial court did not refuse appellant’s request for an instruction. If

appellant was dissatisfied with the court’s positive response to his request for an

instruction, a further request was required. See Corona v. State, No. 07-11-00262-CR,

2013 Tex. App. LEXIS 8183, at *6 (Tex. App.—Amarillo July 3, 2013, no pet.) (mem.

op., not designated for publication) (applying Young in comparable circumstance). See

generally Temple v. State, 342 S.W.3d 572, 592 (Tex. App.—Houston 14th Dist. 2010),

aff’d 390 S.W.3d 341 (Tex. Crim. App. 2013) (regarding objection to evidence, holding

failure to request additional relief after objection is sustained preserves nothing for

review).

                                            8
       A mistrial is an extreme remedy and should be exceedingly uncommon. See

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (stating a mistrial is

required only "in extreme circumstances, where the prejudice is incurable"). A mistrial

is required only when the impropriety is clearly calculated to emotionally inflame the

jurors' minds and is of such a character as to suggest the impossibility of withdrawing

the impression produced on the jurors' minds, Hinojosa v. State, 4 S.W.3d 240, 253

(Tex. Crim. App. 1999), or when the impropriety is "so prejudicial that expenditure of

further time and expense would be wasteful and futile." Hawkins, 135 S.W.3d at 77;

Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011).


       Assuming, without deciding, the prosecutor’s illustration of a bank robber’s “use”

of a weapon lay outside the permissible areas of jury argument,3 considering the

illustration in its context, we cannot agree the court erred by failing to grant a mistrial.

We resolve appellant’s second issue against him.


                                            Conclusion


       Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                                       James T. Campbell
                                                          Justice

Do not publish.




       3
         See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (the four permissible areas of
jury argument are (1) summation of the evidence; (2) reasonable deductions drawn from the evidence; (3)
answer to opposing counsel's argument; and (4) a plea for law enforcement).

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