                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00158-CR
                                 ________________________

                           JUSTIN DAVIS JOHNSON, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 355th District Court
                                     Hood County, Texas
               Trial Court No. CR12127; Honorable Ralph H. Walton, Jr., Presiding


                                        November 19, 2014

                                           OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Justin Davis Johnson, was convicted by a jury of aggravated assault

causing serious bodily injury with a deadly weapon, a firearm, and aggravated assault

by threat with a deadly weapon, a firearm.1 He was sentenced to twelve years and six

years confinement, respectively, with the two sentences to be served concurrently. On

appeal, Appellant asserts the evidence was legally insufficient (1) to prove he was not

      1
          See TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West 2011).
justified in using deadly force against the victim of the first offense and (2) to prove he

committed aggravated assault with a deadly weapon against the victim of the second

offense. He also asserts the trial court erred by permitting two witnesses, (3) Smithson

and (4) Frisbie, to testify as experts, and (5), in so doing, failed to act as a neutral and

impartial judge, and (6) also erred by denying a voluntary intoxication instruction in the

punishment charge. We affirm.


                                             BACKGROUND


        On December 27, 2011, Appellant and Kent Bolsinger arrived at a hunting lease

located in Hood County, Texas. Ryan Armstrong, whom Appellant had never previously

met, shared the hunting cabin on the lease with the two other men. After dinner on the

28th, Appellant was outside the cabin firing rounds into a fire pit.                     Armstrong and

Appellant, both of whom had been drinking, exchanged words concerning this particular

conduct. When Appellant protested and started to leave, Armstrong and Bolsinger

prevented him from doing so due to his state of intoxication. Bolsinger took Appellant’s

keys and Armstrong “escorted” him to a bunk room in the cabin, pushed him onto a sofa

and told him to “sleep it off.”          When Armstrong turned and reached the doorway,

Appellant shot him with a .380 semi-automatic handgun, once in the jaw and once in the

back.2 After Bolsinger went to assist Armstrong, Appellant pointed his handgun at him




        2
            Not surprisingly, Appellant’s version of the events differs somewhat from that testified to by
Armstrong and Bolsinger. According to Appellant, Armstrong knocked him to the ground, slammed him
face-first into his vehicle, threw him into a fence and then forcibly escorted him into the sleeping area of
the cabin, where he started hitting Appellant in the head. Appellant further testified that Armstrong placed
his hands around Appellant’s neck and screamed, “I’m going to fucking kill you.” Appellant testified that,
fearing for his life, he shot Armstrong two times, once in the jaw causing him to spin around and then
once in the back.

                                                     2
and asked for the keys to his vehicle. Bolsinger did not give Appellant his keys but

instead summoned medical assistance.


      In March 2012, Appellant was indicted for two counts of aggravated assault with

a deadly weapon, to wit: a firearm. Count one alleged that on or about December 28,

2011, Appellant intentionally, knowingly, or recklessly caused “serious bodily injury to

[Armstrong] by shooting him with a firearm . . . .” Count two alleged that, on or about

the same date, Appellant intentionally or knowingly threatened “imminent bodily injury to

[Bolsinger]” and did then and there use or exhibit a deadly weapon, to wit: a firearm.


      Following a five-day jury trial, Appellant was found guilty on both counts and the

trial court issued two judgments sentencing Appellant to twelve years on count one and

six years on count two, with the two sentences to be served concurrently. This appeal

followed.


                               ISSUE ONE: SELF-DEFENSE


      Appellant asserts there was legally insufficient evidence at trial to establish he

was not justified in using deadly force against Armstrong. In support, he contends he

was justified in shooting Armstrong because he was in fear of death or imminent bodily

injury. At the time of the incident, both men had been drinking heavily. Appellant

testified at trial that, prior to the shooting, Armstrong had punched, kicked and choked

him. Appellant also produced character witnesses to testify he was normally a peaceful,

law-abiding person.




                                            3
      To obtain a conviction for aggravated assault under count one of the indictment,

the State was required to prove beyond a reasonable doubt that Appellant intentionally,

knowingly, or recklessly caused bodily injury to Armstrong while using or exhibiting a

deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (West 2011). A

deadly weapon includes a firearm.      See id. § 1.07(a)(17)(A).    It is undisputed that

Appellant used deadly force and intended to shoot Armstrong twice with a semi-

automatic handgun. Appellant asserts, however, he was justified in using deadly force

because he reasonably believed deadly force was immediately necessary to protect him

against Armstrong’s use or attempted use of unlawful deadly force. See id. § 9.32 (a).


      Appellant had the initial burden of production on the issue of self-defense and he

was required to bring forward some evidence to support the defense. Zuliani v. State,

97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once he produced that evidence, the

State had the burden of persuasion to disprove the defense. Id. This burden does not

require the production of additional evidence rebutting self-defense, but it does require

the State to prove its case beyond a reasonable doubt. Id. Self-defense is an issue of

fact to be determined by the jury, London v. State, 325 S.W.3d 197, 202 (Tex. App.—

Dallas 2008, pet. ref’d), and when, as here, the trier of fact finds the defendant guilty,

there is an implicit finding that the jury rejected the defendant’s self-defense theory.

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).


      When an appellant challenges the legal sufficiency of the evidence to support

rejection of a defense such as self-defense, the question is not whether the State

presented evidence which refuted appellant’s self-defense evidence.          Saxton, 804

S.W.2d at 914. Rather, we examine all of the evidence in a light most favorable to the

                                            4
verdict to determine whether any rational trier of fact could have found beyond a

reasonable doubt (1) the essential elements of the alleged offense and (2) against

appellant on the self-defense issue. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). See Saxton, 804 S.W.2d at 914. In our review, we evaluate all of the evidence

in the record, both direct and circumstantial, whether admissible or inadmissible.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S.

1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).


      The jury’s decision to reject Appellant’s defensive claims ultimately hinges on the

credibility of witnesses. Armstrong testified he grabbed Appellant by the back of his

neck and escorted him to the cabin—not “an aggressive grab, it was more of a guide.”

He then shoved Appellant into the corner of the bunk room where the sofa was located.

Bolsinger testified that, before Appellant shot Armstrong, Armstrong was helping

Appellant up the cabin’s front porch stairs with one hand on the side of his shoulder,

one hand kind of on Appellant’s waist and back—“kind of helping guide him into the

cabin.”   Bolsinger testified he did not observe any violence and did not hear any

physical altercation prior to the shooting. Bolsinger also testified that it was not until

Armstrong was standing on the threshold of the doorway between the cabin’s living

room and bunk room that Armstrong was first shot by Appellant. Appellant then walked

over to where Armstrong was lying and shot him a second time in the back. Contrary to

the testimony of Armstrong and Bolsinger, Appellant testified that, prior to shooting

Armstrong, he had been kicked, beaten, choked and thrown about the cabin by

Armstrong. He testified he reacted by rapidly firing two shots.


                                            5
       The jury is the sole judge of the credibility of witnesses and weight to be given to

their testimony. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. Crim.

App. 2003). As fact finder, the jury is entitled to judge the credibility of witnesses, and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.3d 459, 461 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d). The statements of Appellant and his witnesses do not conclusively prove a claim

of self-defense. See London, 325 S.W.3d at 203; Denman v. State, 193 S.W.3d 129,

132-33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (finding evidence sufficient to

support conviction of aggravated assault under Jackson v. Virginia despite defendant’s

claim of self-defense, which was based on testimony of defendant and other witnesses

who stated complainant had assaulted or threatened defendant on prior occasions).

Further, that Appellant walked up to Armstrong after the first shot and shot Armstrong a

second time in the back while he lay on the floor, if believed by the jury, is evidence

negating his claim of self-defense. See Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—

Fort Worth 2014, pet. ref’d); Smith v. State, 355 S.W.3d 138, 146-47 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d).


       Based on the testimony of Bolsinger and Armstrong coupled with Appellant’s

conduct subsequent to the first shot, the jury could have reasonably concluded that

Appellant’s conduct was inconsistent with his self-defensive claims. See Cleveland v.

State, 177 S.W.3d 374, 380-81 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), cert.

denied, 547 U.S. 1073, 1126 S.Ct. 1774, 164 L.Ed.2d 523 (2006) (finding that jury could

have reasonably concluded that defendant’s conduct in continuing to stab his wife’s

back as she lay bleeding on floor was inconsistent with his claim of self-defense).


                                            6
Having considered the entire record, we conclude the jury rationally could have found

each element of the charged offense was proven beyond a reasonable doubt and that it

could have rationally rejected Appellant’s claim of self-defense. See Zuliani, 97 S.W.3d

at 594.    Accordingly, we hold the evidence was sufficient to support Appellant’s

conviction for aggravated assault against Armstrong. Appellant’s first issue is overruled.


                ISSUE TWO: AGGRAVATED ASSAULT WITH A DEADLY W EAPON


       Appellant asserts no rational trier of fact would have found him guilty of pointing a

gun at Bolsinger and threatening to shoot him if he didn’t give Appellant his truck keys.

He asserts inconsistencies in Bolsinger’s account of what occurred that night called his

credibility into question and the jury should have believed him rather than Bolsinger.


       To obtain a conviction for aggravated assault under count two of the indictment,

the State was required to prove beyond a reasonable doubt that Appellant intentionally

or knowingly threatened Bolsinger with imminent bodily injury while using or exhibiting a

deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011).

Because the standard of review for legal sufficiency set forth in our discussion of issue

one applies equally here, we will not restate it.


       Appellant’s second issue also presents a credibility question decided by the jury.

Considering the evidence in a light most favorable to the verdict, Bolsinger testified that,

after shooting Armstrong in the back, Appellant pointed the handgun at him and

demanded his truck keys. Appellant denied the threat to Bolsinger took place. The jury

is the sole judge of the witnesses’ credibility and weight to be given their testimony.

See Golden Eagle Archery, 116 S.W.3d at 761.             Further, while there may have

                                              7
appeared to be inconsistencies in Bolsinger’s testimony regarding what occurred that

night, those inconsistencies do not render the evidence insufficient to support a

conviction, see Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992), and we

reject Appellant’s argument that credibility issues among the State’s witnesses render

the evidence insufficient. Bolsinger’s testimony alone is sufficient to convict Appellant.

See Anderson v. State, 11 S.W.3d 369, 375-76 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d). Appellant’s second issue is overruled.


     ISSUES THREE, FOUR AND FIVE: RIGHT TO CONFRONTATION AND IMPARTIAL JUDGE


       In issues three and four, Appellant asserts the trial court abused its discretion by

permitting Dr. John Smithson and Sonny Frisbie to testify as expert witnesses.            In

support, Appellant contends the trial court violated his statutory and constitutional rights

to confrontation as well as his First and Fourteenth Amendment rights under the United

States Constitution by permitting them to testify at trial. In his fifth issue, Appellant

asserts he was denied a trial before a fair and impartial judge because the trial judge

erroneously permitted Smithson and Frisbie to give expert testimony.


       RIGHT TO CONFRONTATION


       Because Appellant did not object at trial to testimony by either Smithson or

Frisbie based on any denial of any statutory or constitutional right to confrontation,

Appellant waived these issues on appeal. See Clark v. State, 365 S.W.3d 333, 339 n.1

(Tex. Crim. App. 2012). See also Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.

2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001) (defendants

waive their rights to confrontation by failing to object to the admission of certain

                                             8
evidence at trial). The issue on appeal must comport with the objection made at trial.

See Clark, 365 S.W.3d at 339 (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim.

App. 1986)).


       FAIR AND IMPARTIAL JUDGE


       Appellant next asserts he was denied a trial before a fair and impartial judge

because the trial judge permitted Smithson to testify to the presence of foreign bodies in

CAT scan and x-ray images and read Dr. Ashley Johnson’s report from Armstrong’s

medical records. He also asserts his rights were violated when the trial court permitted

Frisbie to testify about test-firing rounds from the handgun used by Appellant to shoot

Armstrong. We disagree.


       Due process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). A judge should not act as an advocate or adversary

for any party. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th

Dist.] 2007, pet. ref’d). To reverse a judgment on the ground of improper conduct or

comments of the judge, we must find (1) that judicial impropriety was in fact committed

and (2) probable prejudice to the complaining party. Id. “In ruling upon the admissibility

of evidence, the judge shall not discuss or comment upon the weight of the same or its

bearing in the case, but shall simply decide whether or not it is admissible; nor shall he,

at any stage of the proceeding previous to the return of the verdict, make any remark

calculated to convey to the jury his opinion of the case.” TEX. CODE CRIM. PROC. ANN.

art. 38.05 (West 1979).




                                             9
        We find that the trial court did not engage in any judicial impropriety by simply

ruling on the admissibility of evidence. Pursuant to article 38.05 of the Texas Code of

Criminal Procedure, the trial court decided whether the evidence was admissible and

made no statement “upon the weight of the same or its bearing in the case.” Id. As

regards Smithson reading Ashley’s report, Appellant had agreed to admit Armstrong’s

medical records including Ashley’s report without objection in open court. Furthermore,

Frisbie testified as a fact witness who described test-firing the handgun and the

direction the shell casings were ejected from the gun. As such, he was merely testifying

as a fact witness concerning his personal observations and he did not express any

opinion or testify to any conclusions from those facts.


        Assuming, without deciding, the trial court erred in allowing Smith to comment on

CAT scan and x-ray images, whether there was fundamental error depends on whether

Appellant can establish egregious harm. See Powell v. State, 252 S.W.3d 742, 744

(Tex. App.—Houston [14th Dist.] 2008, no pet.); Moreno v. State, 900 S.W.2d 357, 359

(Tex. App.—Texarkana 1995, no pet.) (citing Brewer v. State, 572 S.W.2d 719, 721

(Tex. Crim. App. [Panel Op.] 1978)).3               A trial court’s comments do not constitute

fundamental error unless they rise to such a level as to bear on the presumption of

innocence or vitiate the impartiality of the jury. Jasper v. State, 61 S.W.3d 413, 421

(Tex. Crim. App. 2001). Here, the admission of Smithson’s testimony related to the

Ashley report and Frisbie’s testimony were not reversible error.



        3
          Appellant made no objection at trial based on the First or Fourteenth Amendments because of a
denial of his rights to a fair and impartial judge or trial. When no objection is made, “remarks and conduct
of the court may not be subsequently challenged unless they are fundamentally erroneous—that is, the
error creates egregious harm.” See Powell v. State, 252 S.W.3d at 744-45.

                                                    10
       Furthermore, Smithson’s testimony described CAT scan and x-ray images that

were visible representations of two bullets, one in Armstrong’s neck and another near

his spine giving some indication of the possible direction from which the bullets entered

his body—all of which had been testified to by numerous other witnesses without

objection. The similar testimony from other witnesses mitigates against the harmfulness

of any error as does the overwhelming evidence of Appellant’s guilt—eyewitness

testimony of Armstrong and Bolsinger coupled with other corroborating evidence, i.e.,

testimony that a spent shell casing was found in the bunk room coupled with Frisbie’s

testimony regarding the direction spent shell casings were ejected from the handgun,

Frisbie’s testimony describing the location and amount of blood stains in the bunk room

resulting from the shooting, photographs showing the cabin’s living room furniture was

undisturbed, EMS paramedic Jody Alvey-Fries’s testimony indicating that, at the cabin,

Appellant evidenced only a superficial wound to his ear that was not fresh, Bolsinger’s

testimony that Appellant’s abrasion on his ear resulted from an accident chopping wood

earlier that day, and Investigator Patrick Felan’s testimony that he collected bullet

fragments from Armstrong’s neck and back. See Mosley v. State, 983 S.W.3d 249, 258

(Tex. Crim. App. 1999), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550

(1999).


       Given the strength of the State’s case and the presence of other testimony

concerning the locations where Armstrong was shot and the direction the bullets were

traveling when they struck Armstrong, we find beyond a reasonable doubt that the

admission of Smithson’s testimony regarding CAT scan and x-ray images did not

contribute or affect the very basis of the case or vitally affect Appellant’s justification


                                            11
theory of self-defense. See Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.

2011). See also TEX. R. APP. P. 44.2(a). Accordingly, we overrule Appellant’s third,

fourth and fifth issues.


                     ISSUE SIX—VOLUNTARY INTOXICATION INSTRUCTION


       Finally, Appellant asserts the trial court erred when it denied him a voluntary

intoxication instruction at the end of the penalty phase of the trial. He asserts that

shooting Armstrong was so out of character for him that the trial court should have

concluded that he did not know his conduct was wrong. In support, he points to his

mental state of gross intoxication and character witnesses who testified to his peaceful,

law-abiding character.


       Insanity 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. § 8.04(a) (West 2011).         Voluntary

intoxication is not a defense to the commission of a crime; but evidence of temporary

insanity caused by intoxication and may be introduced by the actor in mitigation of his

punishment. Id. at (a), (b).   In other words, unlike the defense of insanity which would

bar the conviction of a crime, evidence of temporary insanity caused by intoxication

could be used by a jury to lessen the punishment.


       Like the affirmative defense of insanity and any other defensive issue, whether a

defendant is entitled to a mitigation instruction under section 8.04(b) depends on

whether the issue is raised by the evidence. Arabie v. State, 421 S.W.3d 111, 114

(Tex. App.—Waco 2013, pet. ref’d).        Before it is necessary for the trial court to

                                            12
affirmatively instruct the jury on voluntary intoxication as mitigating evidence at the

punishment stage of the trial, the defendant must establish that he was intoxicated and

that intoxication rendered him temporarily “insane,” Arnold v. State, 742 S.W.2d 10, 14

(Tex. Crim. App. 1987), i.e., the defendant must establish that his voluntary intoxication

caused him to not know his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815,

817-18 (Tex. Crim. App. 2002). He must do more than merely present evidence of

intoxication or even gross intoxication. Arnold, 742 S.W.2d at 14. He must show that

either intoxication made him unaware that what he was doing was wrong, or it made

him incapable of conforming his conduct to the law. See Cordova v. State, 733 S.W.2d

175, 190 (Tex. Crim. App. 1987).


       Here, Appellant’s primary defense in the trial court was self-defense. He testified

he had a clear recollection of the crime and claimed he was only doing what was

necessary to defend himself against an attack by Armstrong. He gave a detailed step-

by-step account of what occurred the night of the incident and what he was thinking and

feeling at the time the crime was committed.           His character witnesses described

Appellant as a law-abiding man who knew right from wrong.


       Despite evidence showing Appellant was intoxicated, there is no evidence

tending to show that he did not know that his conduct was wrong. See Cordova, 733

S.W.2d at 190 (evidence that defendant was “crazy drunk” insufficient to show

temporary insanity). Because he failed to present evidence of temporary insanity, he

was not entitled to a mitigating instruction on insanity by intoxication during the

punishment phase, Meine v. State, 356 S.W.3d 605, 611 (Tex. App.—Corpus Christi

2011, pet. ref’d), and we find the trial court did not err in refusing to submit an instruction

                                              13
on voluntary intoxication. Rainey v. State, 949 S.W.2d 537, 543 (Tex. App.—Austin

1997, pet. ref’d), cert. denied, 525 U.S. 880, 119 S.Ct. 186, 142 L.Ed.2d 152 (1998).

Appellant’s sixth issue is overruled.


                                        CONCLUSION


       The trial court’s judgment is affirmed.



                                                  Patrick A. Pirtle
                                                     Justice


Publish.




                                             14
