                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-095-CR


RAY REDDING                                                             APPELLANT

                                            V.

THE STATE OF TEXAS                                                            STATE

                                        ------------

           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                  I. INTRODUCTION

      Appellant Ray Redding appeals his conviction for aggravated assault on a

public servant with a deadly weapon, a first degree felony. In four points, Redding

argues that the jury improperly rejected his affirmative defense of insanity, that the

evidence is legally and factually insufficient to support his conviction, and that the

trial court improperly overruled his rule 403 objection by failing to perform a

balancing test openly or on the record. W e will affirm.



      1
           See Tex. R. App. P. 47.4.
                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Robert Patrick Riley worked for the City of Fort W orth for over twenty-eight

years. During his tenure with the city, Riley became the Director of Development.

Riley and Redding knew each other because Redding had visited Riley’s office in the

past, complaining of a neighbor Redding believed was trying to force him to

relinquish some property by using microwaves to control his thoughts. Riley testified

that in the four or five times Redding had visited his office, Redding had seemed

excitable, but not angry.

      On the morning of August 10, 2005, Redding left home with a loaded nine-

millimeter semi-automatic handgun and took a bus downtown. W hen he reached

the bus transfer downtown, Redding found himself in front of City Hall, hearing

voices in his head telling him to go inside and shoot. W hen Riley arrived at City Hall

that morning to plan for a zoning committee meeting, he saw Redding standing in

front of the elevators in the hallway near Riley’s office. The two men exchanged

pleasantries as Riley passed, and then Redding blurted out, “Someone’s gotta stop

this,” drawing Riley’s attention in time to turn and see Redding pointing a gun at him.

Redding fired one shot at Riley and missed. Riley ran around a corner, attempting

to take cover behind a desk, but Redding followed and placed the muzzle of his gun

within two feet of Riley’s head. Riley tried to defuse the situation, telling Redding to

think about what he was doing and talk to someone about his problems.




                                           2
      Deputy City Marshal Trevoy Lenear was outside the building when an

employee told him shots had been fired inside. Deputy Lenear responded, saw

Redding “fumbling” with a gun, and thought he was trying to clear a malfunction or

get a round in the chamber.        Deputy Lenear drew his service weapon and

commanded Redding to drop the gun and get down on the floor. Redding complied

and was handcuffed and arrested.

      Redding was indicted for aggravated assault on a public servant with a deadly

weapon, attempted murder, and aggravated assault with a deadly weapon. In

September 2005, he was found incompetent to stand trial and was placed in various

state mental health facilities, where he remained until he was determined to be

competent in January 2008. Redding was tried before a jury in March 2009.

      At trial, Redding presented an insanity defense. His expert witness, Dr.

James W omack, a psychologist, testified that Redding suffers from paranoid

schizophrenia and that, at the time of the shooting, he did not know right from wrong.

The State’s expert, Dr. J. Randall Price, also a psychologist, testified that, although

Redding suffers from a severe mental disease or defect that Dr. Price diagnosed as

“psychosis not otherwise specified” and delusions, Redding knew at the time of the

shooting what he was doing was wrong. Redding presented testimony from family

members describing his delusions, auditory command hallucinations, and claims of

having a government microchip in the roof of his mouth that manipulated his

thoughts and bodily functions via two-way microwave transmissions. Redding’s


                                          3
maternal aunt, Nancy Thomas, testified that Redding had shown her documents he

had printed from the Internet relating to the “chip being implanted in his head.”

Thomas also testified that Redding had talked to and argued with voices in his head,

telling them to “just leave me alone.” Redding’s brother, Arthur W ayne Redding, Jr.

testified that Redding would call the automated time-and-temperature telephone

number every hour on the hour and “give some kind of report” and that Redding had

believed a chip had been implanted in him after his jaw was broken and wired shut

some years before. W ayne Redding also testified to Redding’s interaction with the

voices in his head.

      The jury rejected Redding’s insanity defense, convicted him of aggravated

assault on a public servant with a deadly weapon, and assessed his punishment at

sixty years’ confinement in the institutional division of the Texas Department of

Criminal Justice. The trial court sentenced him accordingly. This appeal followed.

                          III. S UFFICIENCY OF THE E VIDENCE

      In his first, second, and third points, Redding challenges the jury’s rejection

of his insanity defense and the legal and factual sufficiency of the evidence

supporting his conviction.     In his first point, he alleges that he proved by a

preponderance of the evidence that he was insane at the time of the shooting and

that, at the time of the offense and as the result of his mental illness, he did not know

that his conduct was wrong. In his second point, Redding challenges the legal

sufficiency of the evidence to prove the elements of aggravated assault on a public


                                           4
servant with a deadly weapon. In his third point, Redding argues that the evidence

supporting the jury’s rejection of his insanity defense was factually insufficient and

also challenges the factual sufficiency of the evidence as to the mens rea element

of the crime itself. W e will address each of these arguments in turn.

                        A. Legal and Factual Sufficiency

                              1. Standards 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).

      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.


                                           5
1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine 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). W e 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.

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson, 204 S.W .3d at 414. W e then

ask whether the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the evidence

supporting the conviction that the factfinder’s determination is manifestly unjust.

Steadman, 280 S.W .3d at 246; Watson, 204 S.W .3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, although legally

sufficient, contradicts the verdict. Watson, 204 S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.


                                          6
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

                2. 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. 2009).

      The offense of assault on a public servant does not require that the public

servant be assaulted because of his status, merely that his status be known to the

defendant and that the public servant be assaulted while lawfully discharging his

official duty. See id. § 22.02(b)(2)(B).

               3. Legally Sufficient Evidence to Support Conviction

      In his second point, Redding argues that the evidence was legally insufficient

to prove the elements of aggravated assault on a public servant with a deadly

weapon. Specifically, Redding argues that the State failed to carry its burden to

prove beyond a reasonable doubt that he committed the crime.

      The evidence demonstrated that Redding aimed a gun at Riley near the

elevators in City Hall and fired a shot. Kari Burgett, a human resources employee,


                                           7
testified that she heard a gunshot and saw Redding, gun in hand, chasing Riley.

Riley was a public servant in lawful discharge of his duties as the Director of

Development for the City of Fort W orth; he was at work preparing for a zoning

committee meeting. Redding knew Riley was a public servant; the two men had

spoken on multiple previous occasions about matters related to city affairs.

      W hen Redding drew his gun and fired in Riley’s direction, he placed Riley

within a zone of danger where imminent injury was not only possible, but likely,

especially considering that Redding chased Riley down and pointed the gun at his

head. Finally, Redding used a nine-millimeter handgun in the assault, a firearm,

which is by definition a deadly weapon. See id. § 1.07(a)(17)(A) (Vernon Supp.

2009).

      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 Redding

committed aggravated assault on Riley, a public servant, with a deadly weapon. See

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

Accordingly, we overrule his second point.

              4. Factually Sufficient Evidence to Support Conviction

      Redding argues in a portion of his third point that the evidence was factually

insufficient to show that he possessed the requisite mens rea to commit aggravated

assault on a public servant with a deadly weapon because Redding did not shoot at




                                         8
Riley because of his status as a public servant. 2 Rather, according to Redding, he

shot at Riley “to ‘stop’ the voices from telling [him] what to do.”

      The State had to prove beyond a reasonable doubt that Redding committed

aggravated assault on a person—Riley—whom Redding knew to be a public servant

while Riley was engaged in the lawful discharge of his official duties.           For a

defendant’s delusional state to affect the mens rea element of the offense, as

Redding contends, the defendant would have to believe that his target is something

other than a public servant. See Ruffin v. State, 270 S.W .3d 586, 593–94 (Tex.

Crim. App. 2008) (noting that the law presumes that criminal defendants are sane

and intend the natural consequences of their acts). Instead, Redding presented a

delusional motive for firing at an individual whom Redding knew was a public

servant. Nowhere in the record do we find evidence that Redding believed Riley was

anything other than the Director of Development for the City of Fort W orth.

Consequently, we hold that factually sufficient evidence existed that Redding

possessed the required mens rea, and we overrule this portion of his third point.

                         B. Affirmative Defense of Insanity

      In Redding’s first point and in the remainder of his third point, he argues that

the evidence is legally and factually insufficient to support the jury’s implicit finding

rejecting his insanity defense. Redding alleges that he proved by a preponderance

      2
         W e will address the remainder of Redding’s argument in his third
point—regarding the sufficiency of the evidence to support the jury’s implicit finding
rejecting his insanity defense—separately below.

                                           9
of the evidence that he was insane at the time of the shooting and he did not know

that his conduct was wrong at the time of the offense and as the result of his mental

illness.

                               1. Standards of Review

       Section 8.01(a) of the penal code provides that “[i]t is an affirmative defense

to prosecution that, at the time of the conduct charged, the actor, as a result of

severe mental disease or defect, did not know that his conduct was wrong.” Tex.

Penal Code Ann. § 8.01 (Vernon 2003). The defendant has the burden of proving

an affirmative defense by a preponderance of the evidence. Id. § 2.04(d).

       W hen reviewing the legal sufficiency of the factfinder’s implicit rejection of an

affirmative defense, we must first examine the record for evidence supporting the

jury’s implicit finding rejecting the affirmative defense, ignoring all evidence to the

contrary. See Cleveland v. State, 177 S.W .3d 374, 387 (Tex. App.—Houston [1st

Dist.], pet. ref’d) (en banc), cert. denied, 547 U.S. 1073 (2006); Howard v. State, 145

S.W .3d 327, 333–35 (Tex. App.—Fort W orth 2004, no pet.). If there is no evidence

to support the finding, then we must examine the entire record to see if the appellant

proved the affirmative defense as a matter of law. Cleveland, 177 S.W .3d at 387;

Howard, 145 S.W .3d at 333–35.

       W hen reviewing the factual sufficiency of the factfinder’s implicit rejection of

an affirmative defense, we must consider all the evidence relevant to the affirmative

defense and determine whether the judgment is so against the great weight and


                                           10
preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785

S.W .2d 146, 155 (Tex. Crim. App. 1990). In our review, we may not usurp the

function of the trier of fact by substituting our judgment in the place of its verdict.

See id. at 154. We cannot conclude that a conviction is clearly wrong or manifestly

unjust simply because we would have voted to acquit as jurors. Watson v. State,

204 S.W .3d 404, 417 (Tex. Crim. App. 2006). W e may sustain this point only if, after

detailing the relevant evidence and stating in what regard the contrary evidence

greatly outweighs the evidence supporting the verdict, we also clearly state why the

verdict is so against the great weight of the evidence as to be manifestly unjust, why

it shocks the conscience, or why it clearly demonstrates bias. Meraz, 785 S.W .2d

at 154 n.2; see Clewis v. State, 922 S.W .2d 126, 135–36 (Tex. Crim. App. 1996).

                             2. Insanity: Applicable Law

      The test for determining insanity is whether, at the time of the conduct

charged, as a result of mental disease or defect, the defendant did not know his

conduct was wrong. Ruffin, 270 S.W .3d at 592. In this context, “wrong” means

“illegal.” Id.; Bigby v. State, 892 S.W .2d 864, 878 (Tex. Crim. App. 1994), cert.

denied, 515 U.S. 1162 (1995). Although jurors may not arbitrarily disregard expert

testimony as to insanity, neither may they give conclusive effect to such testimony.

Graham v. State, 566 S.W .2d 941, 951 (Tex. Crim. App. 1978). The circumstances

of the crime itself are also important in determining the mental state of the accused

at the time of the commission of the offense. Id. at 951.


                                          11
     3. Legally Sufficient Evidence Supporting Rejection of Insanity Defense

      W e have reviewed the evidence supporting the jury’s implicit finding that

Redding knew, at the time of the shooting, that what he was doing was wrong. See

Howard, 145 S.W .3d at 334. Dr. Price testified for the State that Redding did, in fact,

hear voices telling him to enter the building and shoot so that he could get his story

heard in a court of law. 3 However, Dr. Price also noted that Redding had told him

in their interview that he was arguing with the voices, telling them that he did not

want to shoot up City Hall because doing so would result in him being sent to prison.

      W hile it was undisputed that Redding had a mental disease or defect, his

realization that he would go to jail if he shot a gun in City Hall sufficiently supports

the jury’s finding that he had known, when he shot at Riley, that what he was doing

was wrong. In other words, a rational jury having heard this testimony could have

chosen to believe it and found Redding sane at the time of the shooting because his

realization that he would go to jail showed that he knew his act was illegal and

therefore “wrong.” See Cleveland, 177 S.W .3d at 387; Ruffin, 270 S.W .3d at 592.

W e hold that the evidence is legally sufficient to support the jury’s implicit finding

rejecting Redding’s affirmative defense of insanity.

    4. Factually Sufficient Evidence Supporting Rejection of Insanity Defense



      3
        Notably, Dr. W omack also testified that Redding’s motive for the shooting
was to be arrested. Redding told him in interviews, “I’d be arrested, but when I told
them what was happening, I would get to go home. They would uncover the
conspiracy and find the equipment [microchip] and have it turned off.”

                                          12
      Having held the evidence legally sufficient to support the jury’s rejection of

Redding’s insanity defense, we now address the factual sufficiency of the evidence

to support the jury’s rejection of the defense.

      It is undisputed that Redding had a severe mental disease or defect at the

time of the shooting. The issue here is whether, as a result of that disease or defect,

Redding had known that shooting a gun at Riley was wrong. Redding’s expert, Dr.

W omack, who interviewed Redding, reviewed his available data, and performed a

social history on him, testified that Redding suffers from paranoid schizophrenia and

did not know right from wrong when he shot at Riley. Dr. W omack based these

conclusions on Redding’s failure to attempt to avoid detection, to express remorse,

and to dispose of evidence. Dr. W omack testified that he did not find dispositive that

Redding had known that he would be “detained” if he used the gun inside City Hall.

Rather, he focused on the moral correctness of the act as seen by Redding due to

his mental disease. However, whether Redding believed the act of firing a gun at

someone in City Hall was morally right is immaterial; instead, the question is, “Does

the defendant factually know that society considers this conduct against the law,

even though the defendant, due to his mental disease or defect, may think that the

conduct is morally justified?” Ruffin, 270 S.W .3d at 592. Redding’s argument with

the voices in his head strongly indicates his knowledge that discharging a weapon

at another human being is something society considers against the law. See id. In

fact, Redding’s motive for the shooting is dispositive. He went to City Hall with a gun


                                          13
in order to fire that gun inside, in the hope that he would be caught, brought to trial,

and get a chance to air his grievances in open court. Such an expectation clearly

indicates knowledge of the wrongfulness of the act.

      After our review of all the evidence relevant to the issue of insanity, we have

determined that the jury’s verdict is not so against the great weight and

preponderance of the evidence as to be manifestly unjust. See Meraz, 785 S.W .2d

at 155. Given both the gravamen and volume of testimony in favor of the jury’s

implied finding, we hold that the jury’s rejection of Redding’s insanity defense was

grounded on factually sufficient evidence.

      Having held that the evidence was legally and factually sufficient to support

the jury’s implied finding rejecting his affirmative defense of insanity, we overrule

Redding’s first point and the remainder of his third point.

            IV. ADMISSION OF E VIDENCE WAS NOT ABUSE OF D ISCRETION

      In his fourth point, Redding argues that the trial court abused its discretion

when it overruled his rule 403 objection to the admission of the gun, magazine, and

ammunition used in his assault on Riley.

      Texas Rule of Evidence 403 provides, “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403.

Once a defendant makes a rule 403 objection, the trial court must weigh the

probative value of the evidence to determine if it is substantially outweighed by its

                                          14
potential for unfair prejudice. Santellan v. State, 939 S.W .2d 155, 169 (Tex. Crim.

App. 1997).

       W e reverse a trial court’s decision to admit evidence rarely and only after a

clear abuse of discretion. Mozon v. State, 991 S.W .2d 841, 847 (Tex. Crim. App.

1999); Vega v. State, 898 S.W .2d 359, 362 (Tex. App.—San Antonio 1995, pet.

ref’d). Factors considered in our analysis of an issue regarding rule 403 include (1)

the probative value of the evidence, (2) the potential to impress the jury in some

irrational, yet indelible, way, (3) the time needed to develop the evidence, and (4) the

proponent’s need for the evidence. See Erazo v. State, 144 S.W .3d 487, 489 (Tex.

Crim. App. 2004).

       Here, because Redding was indicted for the offense of aggravated assault on

a public servant with a deadly weapon, the State was required to prove that he

exhibited a deadly weapon—here, a gun—during the commission of the assault.

The gun, magazine, and bullets complained of by Redding constituted direct

evidence of that element of the offense. See Moss v. State, 75 S.W .3d 132, 141

(Tex. App.—San Antonio 2002, pet. ref’d) (holding admission of firearms, holster,

magazine, and bullets in aggravated robbery case was not violative of rule 403

because evidence constituted circumstantial evidence that defendant exhibited

firearm during robbery). The probative value of the evidence was thus considerable,

and the evidence was necessary to the State’s case. See Erazo, 144 S.W .3d at

489.


                                          15
      W eighing the probative value of the evidence with the other rule 403 factors,

the trial court could have reasonably concluded that the evidence did not have a

tendency to impress the jury in some irrational, yet indelible, way, and the time

needed to introduce the evidence was minimal, consisting of less than five pages of

the record. See Santellan, 939 S.W .2d at 169. Consequently, the trial court could

have reasonably concluded that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.

      W e hold that the trial court did not abuse its discretion by admitting the gun,

magazine, and ammunition over Redding’s rule 403 objection, and we overrule

Redding’s fourth point.4 See id.; Santellan, 939, S.W .2d at 169.

                                  V. C ONCLUSION

      Having overruled Redding’s four points, we affirm the trial court’s judgment.



                                                    SUE W ALKER
                                                    JUSTICE

PANEL: W ALKER and MCCOY, JJ.; and DIXON W . HOLMAN, J. (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: May 27, 2010


      4
        In his fourth point, Redding also appears to argue that the State failed to
establish chain of custody for the exhibits discussed above. However, his only
objection at trial was under rule 403. Thus, Redding did not preserve the issue for
appeal. See Tex. R. App. P. 33.1.

                                         16
