Opinion filed April 25, 2013




                                            In The


           Eleventh Court of Appeals
                                           __________

                                     No. 11-11-00100-CR
                                          _________

                             JOEL LARA CRUZ, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee


                            On Appeal from the 167th District Court
                                     Travis County, Texas
                            Trial Court Cause No. D-1-DC-10-904097


                               MEMORANDUM OPINION
          Joel Lara Cruz was indicted for four counts of aggravated assault with a deadly weapon
against a public servant. The jury convicted him of the offenses in Counts One and Four and
acquitted him of the offenses in Counts Two and Three. The jury assessed his punishment at
confinement for a term of fifteen years on each count in the Institutional Division of the Texas
Department of Criminal Justice. Appellant challenges his convictions in six points of error. We
affirm.
                                        Background Facts
          Brian Mason and Eric Richard Lancaster, paramedics employed by the City of Austin,
responded to a call at the Forest Hill Apartments in Austin on the evening of December 4, 2009.
They were responding to an injury call from police officers that had previously arrived at the
apartment complex. As Mason pulled equipment from the ambulance, he “felt air and like a
whiz go by [his] head.” He subsequently heard an air rifle being fired, and he heard a “pellet” hit
the concrete close to his feet. He testified that the first shot came within inches of him and that it
was loud enough that he could hear it over the running diesel engine of his ambulance. Mason
and Lancaster ran to the apartment where the police officers had responded to alert the officers
that someone was shooting at the paramedics with an air rifle.
        Officer Valentin Ramirez De Los Santos of the Austin Police Department had previously
responded to a domestic violence call at the apartment complex. He called for the paramedics to
treat a female that had been cut by a window. Upon receiving the shooting report from the
paramedics, Officer De Los Santos and Officer Justin Berry attempted to locate the shooter. As
they approached the area in the apartment complex where the shots had been fired, Officer De
Los Santos and Officer Berry heard another shot.                Officer De Los Santos feared that
Officer Berry had been hit in the face by the shot. Officer Berry testified that the shot came
within inches of his face and that he heard it make an impact behind him. Officer Berry and
Officer De Los Santos observed a man standing on a balcony holding a rifle, and they identified
him as the shooter. Officer De Los Santos and Officer Berry also identified Appellant at trial as
the shooter.
        Officer De Los Santos was prepared to shoot Appellant but did not do so when Appellant
took a step back on the balcony. With the assistance of backup officers, Officer De Los Santos
subsequently entered the apartment where Appellant was located. Upon entering the apartment,
he observed Appellant on the balcony. Officer De Los Santos subsequently found an air rifle
hidden behind some tools on the balcony. Officer Berry also found a container of BBs on the
balcony.
        Mason, Lancaster, Officer De Los Santos, and Officer Berry all testified that they felt
threatened by the shots that Appellant fired at them. As paramedics, Mason and Lancaster
testified that they were trained to treat air rifle injuries as serious injuries because air rifles can be
deadly. Officer De Los Santos offered his opinion that an air rifle is capable of causing death or
serious bodily injury. The State also presented the testimony of Gregg Karim, a firearm and tool
mark examiner for the Austin Police Department, regarding his examination of the air rifle
recovered from Appellant. He described the air rifle as a “.177-caliber” “manual multi-pump
variable powered pneumatic rifle.” His testing of the air rifle revealed that it was capable of
firing a pellet between 203 and 481 feet per second and that it was capable of firing a BB

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between 270 and 523 feet per second. He opined that the air rifle was capable of causing serious
bodily injury based upon research indicating that a BB can penetrate the eye if fired at 246 feet
per second and that it could penetrate the skin if fired at 365 feet per second.
       The indictment alleged in Count One that Appellant intentionally or knowingly
threatened Officer Berry with imminent bodily injury and that he used or exhibited a deadly
weapon during the commission of the assault. Count One further alleged that Officer Berry was
a public servant discharging an official duty and that Appellant knew that Officer Berry was a
public servant at the time. Counts Two, Three, and Four alleged the same offense with respect to
Mason (Count Two), Lancaster (Count Three), and Officer De Los Santos (Count Four). The
jury convicted Appellant of the offense of aggravated assault with a deadly weapon against a
public servant with respect to Officer Berry (Count One) and Officer De Los Santos (Count
Four), but acquitted him of the offense with respect to the paramedics, Mason (Count Two) and
Lancaster (Count Three).
                                              Analysis
       In his first four points, Appellant challenges the sufficiency of the evidence supporting
his convictions. We review a sufficiency of the evidence point, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the elements of the offense beyond
a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). In conducting a sufficiency review, we defer to the jury’s role as the sole judge of
the witnesses’ credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at
899. This standard accounts for the factfinder’s duty 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; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When
the record supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.



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         In his first and second points, Appellant challenges the sufficiency of the evidence
supporting the jury’s determination that the air rifle constituted a deadly weapon as alleged in
Counts One and Four. A person commits an assault if he intentionally or knowingly threatens
another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2011). The
offense is elevated to an aggravated assault if the person uses or exhibits a deadly weapon during
the commission of the assault. Id. § 22.02(a)(2). The Penal Code defines a deadly weapon as
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury or (B) anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury. Id. § 1.07(a)(17) (West Supp. 2012).
         Appellant contends that the evidence supporting the deadly weapon finding is insufficient
because there was no evidence of the distance between the air rifle and the officers when
Appellant fired the shots, no evidence of whether he used pellets or BBs, and no evidence of the
number of times Appellant pumped the gun when firing at the officers or the velocity of the
projectiles expelled from the air rifle. We disagree with Appellant’s analysis. The relevant
inquiry is the gun’s capability rather than its actual performance. “[I]n proving use of a deadly
weapon other than a deadly weapon per se, the State need show only that the weapon used was
capable of causing serious bodily injury or death in its use or intended use.” Adame v. State, 69
S.W.3d 581, 582 (Tex. Crim. App. 2002). The court held in Adame that evidence of whether or
not a BB gun used in a convenience store robbery was loaded was not significant to a deadly
weapon analysis. Id. This principle applies in the instant case because the distance, ammunition,
and number of pumps used by Appellant are not relevant to the question of what the air rifle was
capable of doing.
         Karim testified that the air rifle was capable of causing serious bodily injury in its manner
of use or intended use. 1 He supported his opinion with his findings regarding the air rifle’s
capabilities.     Based on Karim’s expert testimony, a factfinder could conclude beyond a
reasonable doubt that, if used to shoot a person in the eye or other sensitive part of the body, the
air rifle was capable of causing serious bodily injury, including the possibility of “permanent
disfigurement” or “protracted loss or impairment of the function of any bodily member or
organ.” See PENAL § 1.07(a)(46). Appellant’s first and second points are overruled.

         1
           As noted above, Officer De Los Santos, Officer Berry, Mason, and Lancaster also testified that the air rifle was
capable of causing serious bodily injury.


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       Appellant’s third and fourth points challenge the sufficiency of the evidence supporting
the jury’s determination that he knew that Officer Berry and Officer De Los Santos were public
servants. Aggravated assault is punishable as a first-degree felony if the offense is committed
against a person the actor knows is a public servant while the public servant is lawfully
discharging an official duty. Id. § 22.02(b)(2)(B). The statute creates a presumption that an
accused knew that “the person assaulted was a public servant . . . if the person was wearing a
distinctive uniform or badge indicating the person’s employment as a public servant.” Id.
§ 22.02(c). The trial court instructed the jury on this presumption in the court’s charge along
with the general instruction to be given for permissive presumptions under Section 2.05(a). 2 Id.
§ 2.05(a).
       Appellant bases his evidentiary challenge on evidence that the apartment complex area
was not well lit and that Officer De Los Santos and Officer Berry utilized tactical maneuvers to
limit their body exposure to the shooter. However, Mason testified that he and Lancaster arrived
at the scene in a large blue and yellow ambulance and that they continued to keep the bright
flashing lights on the ambulance activated after they arrived and parked at the complex. Another
police officer at the scene, Officer Shawn Austin McWhorter, testified that the lights from the
ambulance illuminated the balcony area where Appellant was located. Additionally, Officer De
Los Santos and Officer Berry testified that they were wearing their uniforms at the time of the


       2
           The instruction provided as follows:

                The defendant is presumed to have known the person assaulted was a public servant if he was
       wearing a distinctive uniform or badge indicating his employment as a public servant.

                   The jury is instructed relative to this presumption, as follows:

                                      (A) that the facts giving rise to the presumption must be
                             proven beyond a reasonable doubt;

                                      (B) that if such facts are proven beyond a reasonable doubt
                             the jury may find that the element of the offense sought to be
                             presumed exists, but it is not bound to so find;

                                       (C) that even though the jury may find the existence of
                             such element, the state must prove beyond a reasonable doubt each of
                             the other elements of the offense charged; and

                                       (D) if the jury has a reasonable doubt as to the existence of
                             a fact or facts giving rise to the presumption, the presumption fails
                             and the jury shall not consider the presumption for any purpose.




                                                                 5
incident and that their uniforms had white patches on the shoulders and arms identifying them as
police officers.
        Viewing the evidence in the light most favorable to the jury’s verdict, the jury could have
inferred that Appellant knew Officer De Los Santos and Officer Berry were public servants
based upon the presence of flashing emergency lights illuminating the balcony area and the
officers. It was within the jury’s province to resolve or reconcile any conflicts regarding the
lighting of the apartment complex and Appellant’s ability to perceive that Officer De Los Santos
and Officer Berry were police officers at the time that he shot at them. Furthermore, the officers’
testimony that they were in full uniform constituted sufficient evidence of the predicate
evidentiary fact to support the statutory presumption that Appellant knew that they were public
servants. The jury instruction advised the jury that it “may find” the presumed fact if it found the
existence of the predicate fact. The permissive nature of the instruction afforded the jury the
opportunity to reject the statutory presumption if it determined that Appellant had not observed
that Officer De Los Santos and Officer Berry were police officers. Appellant’s third and fourth
points are overruled.
        Appellant asserts in his fifth point that the trial court erred in admitting into evidence the
warning inscribed on the air rifle. He contends that the warning constituted hearsay. The
warning provided as follows: “Warning: Misuse or careless use may cause serious injury or
death.” The State asserts that Appellant waived the error by failing to object to it when the air
rifle was admitted into evidence. We agree.
        A trial court’s decision to admit or exclude evidence is reviewed under an abuse of
discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The trial
court’s ruling will not be reversed on appeal absent a clear abuse of discretion. Id. A trial
court’s erroneous admission of evidence will not require reversal when other such evidence was
received without objection, either before or after the complained-of ruling. Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998). Waiver occurs if similar evidence is admitted either
before or after the objection. Marshall v. State, 210 S.W.3d 618, 631 (Tex. Crim. App. 2006).
        The trial court initially considered the warning inscribed on the air rifle during Officer De
Los Santos’s testimony. Appellant objected to Officer De Los Santos reading the warning aloud
to the jury. After a discussion outside the presence of the jury, the trial court sustained the
objection. During this discussion, counsel for Appellant advised the trial court that he did not

                                                  6
object to the admission of the air rifle, only the reading of the warning aloud to the jury. The
trial court revisited the issue during Karim’s testimony when the State asked Karim to read the
warning aloud. The trial court overruled Appellant’s objection on the basis that the air rifle was
already in evidence.
       We conclude that the trial court did not abuse its discretion in permitting Karim, an
expert, to read the warning inscription aloud to the jury after the air rifle had already been
admitted into evidence. As noted above, Appellant did not object to the admission of the air rifle
or seek to have the warning redacted from it upon admission. Thus, Appellant did not preserve
this point for appellate review. See Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App.
2010). Moreover, the warning was cumulative of the previous evidence from Karim, the police
officers, and the paramedics that the air rifle was capable of causing serious bodily injury.
Accordingly, an error associated with the reading of the warning aloud to the jury was harmless.
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (When the erroneous admission of
evidence is cumulative of other properly admitted evidence proving the same fact, the erroneous
admission is harmless.). Appellant’s fifth point is overruled.
       In his sixth point, Appellant contends that the trial court committed egregious error under
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), by failing to sua
sponte instruct the jury on the lesser included offense of simple assault. He bases this contention
on his perceived deficiencies in the evidence regarding the use or exhibition of a deadly weapon
and his awareness that the officers were public servants. However, Appellant did not request an
instruction on the lesser included offense of simple assault. A trial court has a sua sponte duty to
prepare a jury charge that accurately sets out the law applicable to the case. Delgado v. State,
235 S.W.3d 244, 249 (Tex. Crim. App. 2007); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
2007). However, the trial court has no duty to sua sponte instruct the jury on lesser included
offenses because they are defensive issues that frequently depend upon trial strategy and tactics.
Delgado, 235 S.W.3d at 249; accord Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App.
2010). An instruction on a lesser included offense is simply not applicable to the case absent a
request by the defense for its inclusion in the jury charge. Tolbert, 306 S.W.3d at 781.
Appellant’s sixth point is overruled.




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                                      This Court’s Ruling
       We affirm the judgment of the trial court.




                                                            TERRY McCALL
                                                            JUSTICE


April 25, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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