Affirmed and Memorandum Opinion filed May 17, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00908-CR

           DANIEL CRUZ A/K/A ROY NIXON MEJIA, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 268th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 13-DCR-064876

                       MEMORANDUM OPINION

      This is an appeal from a conviction for aggravated assault against a public
servant. The sole question presented is whether the evidence is legally sufficient to
support the conviction. We conclude that the evidence is sufficient, and we affirm
the trial court’s judgment.
                                 BACKGROUND

      An officer conducted a traffic stop late at night after she noticed a car idling
at a green light. Appellant was seated in the backseat of the car, just behind his
friend, Fredy, who was driving. In the front passenger seat was Sergio, another one
of appellant’s friends. When the car was pulled over, the officer approached on
foot. Appellant refused to make eye contact with the officer, and he was sweating
profusely.

      The officer asked for Fredy’s driver’s license. When Fredy claimed that he
did not have his license, Sergio grabbed a gun and extended his arm behind
Fredy’s seat and in front of appellant, who leaned away from the firearm. Sergio
then fired two shots at the officer. The first shot hit the officer in the cheek,
narrowly missing her skull. The second shot hit the officer in the chest. Because
the officer was wearing a bulletproof vest, the second bullet lodged in the vest,
rather than her chest cavity. Even though the bullet did not pierce the vest, the
bullet still managed to cause a serious penetration wound to the officer.

      The officer returned fire as Fredy sped away in the car. The officer
discharged her weapon four times, and one of her shots knocked out the car’s back
window.

      A chase ensued with speeds exceeding 120 miles per hour. During the
pursuit, more shots were fired at the officer. The officer’s dashboard camera
captured the muzzle fire on video. According to the officer, the flashes were
coming from “the rear left part of the car where the rear passenger would be.”

      The officer ended her chase when the car entered a residential neighborhood.
The officer was not familiar with the neighborhood, and she feared that she was



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being lured inside as part of an ambush. The officer waited at a nearby intersection
to receive medical attention.

      Police found two shell casings near that intersection, and each was
determined to have originated from a separate firearm. One of the casings was
fired from a 9-millimeter CZ handgun. The other casing was fired from a .45-
caliber Ruger.

      Later that night, an investigator located Fredy’s car in a parking lot. In the
trunk of the car, the investigator found a spent shell casing, two live rounds, and
shattered glass. The live rounds were 9-millimeter cartridges, and they had
markings indicating that they were once in a magazine.

      The investigator described Fredy’s car as having a backseat with cushions
that could fold down and provide access to the trunk. The investigator explained
that the live rounds could have entered the trunk, along with the casing and
shattered glass, if the backseat had been folded down at any point after the officer
shot out the back window.

      Police tracked down Sergio on the night of the shooting. He was found with
a .45-caliber casing in his pocket. Sergio consented to a search of his apartment,
which was located nearby. Inside the apartment, police found a CZ handgun, but
no other firearms. According to one officer, Sergio appeared to be surprised by the
discovery of the CZ. Sergio was then taken into custody.

      A few days later, Sergio’s family delivered to the police two handguns that
were found in the possession of Sergio’s brother. One of the handguns was a .45-
caliber Ruger. The other was a 9-millimeter Smith & Wesson.

      A firearms expert determined that all three handguns were used in the
shooting. The expert linked the Smith & Wesson to the bullet that lodged in the

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officer’s vest, as well as to the spent shell casing that was found in the trunk of the
car. The expert linked the Ruger to the .45-caliber casing that was found at the end
of the chase, and to the .45-caliber casing found in Sergio’s pocket. The expert
linked the CZ to the 9-millimeter casing also found at the end of the chase.

      Appellant was arrested one week after the shooting. He gave a recorded
statement, claiming that he did not participate in the crime. He asserted that he was
simply at the wrong place, at the wrong time. Appellant also said that no shots
were fired from the car after Sergio shot the officer, even though video evidence
suggested the contrary.

      At one point during the interview, the interrogating officer asked appellant a
compound question: “You didn’t fire a gun, and then the gun jammed?” Appellant
responded, “Yeah.” When the officer took this to mean that the gun had jammed,
appellant asserted again that he did not fire a gun.

      Appellant did not testify at his trial. The jury convicted him of the charged
offense and assessed punishment at fourteen years’ imprisonment.

                                     ANALYSIS

      When reviewing the sufficiency of the evidence, we examine all of 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. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is legally insufficient when the record contains no evidence,
or merely a “modicum” of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

      Although we consider everything present at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact

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finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hopper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

      To obtain a conviction for aggravated assault, the State was required to
prove that (1) appellant committed an assault against a public servant; and (2) he
either caused serious bodily injury to the public servant, or he used or exhibited a
deadly weapon during the commission of the assault. See Tex. Penal Code § 22.02.
A person commits an assault if the person (1) intentionally, knowingly, or
recklessly causes bodily injury to another; (2) intentionally or knowingly threatens
another with imminent bodily injury; or (3) intentionally or knowingly causes
physical contact with another when the person knows or should reasonably believe
that the other person will regard the contact as offensive or provocative. Id.
§ 22.01.

      It is undisputed that appellant did not fire the gun that actually hit the officer
or otherwise make physical contact with the officer. Thus, for the assault
component, we only consider whether there is sufficient evidence that appellant
intentionally or knowingly threatened the officer with imminent bodily injury. Id.
§ 22.01(a)(2). There is ample evidence of this element.

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       The record shows that three firearms were involved in this case, excluding
the officer’s. The jury could have reasonably concluded that appellant shot at the
officer with one or more of these firearms during the high-speed chase. The
dashboard camera depicted flashes of light coming from the car. The officer
testified that these flashes were muzzle fire, and that they were coming from “the
rear left part of the car where the rear passenger would be”—in other words, where
appellant had been seated.

      The physical evidence also supports a finding that appellant shot at the
officer. In the trunk of the car, police found a spent shell casing, two live rounds,
and shattered glass. These items could have fallen into the trunk if someone folded
down the backseat, and appellant was in the best position to move the backseat
because he was the only one seated there. Also, the live rounds had markings
indicating that they were once in a magazine. If the jury credited appellant’s
statement during his interview as an admission that his gun had jammed, the jury
could have reasonably concluded that these live rounds were ejected from the
magazine as appellant cleared the jam.

      The evidence is sufficient to support the remaining elements as well. Intent
may be inferred from the surrounding circumstances. See Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury could have reasonably found that
appellant intentionally or knowingly shot at the officer to threaten her, at the very
least. See Dickerson v. State, 745 S.W.2d 401, 403 (Tex. App.—Houston [14th
Dist.] 1987, pet. ref’d) (“The pointing of a gun alone establishes the threat.”). The
jury could have also determined that appellant shot at the officer while knowing
that she was a public servant because the officer was dressed in her uniform, her
patrol car was marked, and her overhead lights were engaged. Finally, because a



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gun is a deadly weapon, the jury could have found that appellant used or exhibited
a deadly weapon during the commission of the assault.

      Appellant argues that this case is similar to Gross v. State, 380 S.W.3d 181
(Tex. Crim. App. 2012). In Gross, the Court of Criminal Appeals held that the
evidence was legally insufficient to convict the defendant under the law of parties
for a murder committed by a passenger in the defendant’s vehicle. Id. at 188–89.

      Appellant was charged as both a principal and a party. When the charge
authorizes a conviction under both a principal and a party theory of liability, a
court must uphold the jury’s verdict if the evidence is sufficient under any one of
these theories. See Humaran v. State, 478 S.W.3d 887, 896 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). We need not determine whether the evidence is
insufficient to support appellant’s conviction under a party theory of liability, as in
Gross, because, for the reasons stated above, the evidence is sufficient to support
his conviction as a principal.

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                        /s/       Tracy Christopher
                                                  Justice



Panel consists of Justices Christopher, McCally, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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