                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00131-CR

JOEL W. ANDERSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F44524


                          MEMORANDUM OPINION


      In two different cause numbers that were tried together, appellant, Joel W.

Anderson, was charged by indictment with one count of murder and one count of

aggravated assault against a potential witness. See TEX. PENAL CODE ANN. §§ 19.04(a),

22.02(a), (b)(2)(C) (West 2011). After a jury trial, Anderson was convicted of the lesser-

included offense of manslaughter in the murder case and was acquitted in the

aggravated-assault case. In convicting Anderson of manslaughter, a second-degree

felony, the jury concluded that Anderson had used a deadly weapon in committing the
offense. See id. § 19.04(b). The jury subsequently sentenced Anderson to twenty years’

incarceration in the Institutional Division of the Texas Department of Criminal Justice

with a $10,000 fine. In one issue on appeal, Anderson argues that the evidence is legally

insufficient to support the jury’s finding that he “recklessly” caused the death of his

roommate, Rodolfo Sanchez. We affirm.

                                   I.     BACKGROUND

       On the evening of January 31, 2010, Anderson, Sanchez, and Gerald Ballio

gathered in Anderson’s garage to watch the NFL Pro Bowl game. By all accounts,

Anderson, Sanchez, and Ballio were good friends who regularly gathered to barbecue

and drink beer. On this evening, the friends were drinking beer and watching the

game. At some point, Anderson and Sanchez decided to shoot targets and each other

with Airsoft guns. At trial, the Airsoft guns were described as toy guns that shot round,

plastic pellets or BBs. One target, a small bolt standing upright on an industrial-size

toolbox, proved difficult to topple with the BBs from the Airsoft guns. According to

Ballio, Anderson responded in a joking manner that he knew what would knock over

the target. Anderson left the garage and went to his bedroom to retrieve two handguns.

Anderson returned with a single-action .22-caliber revolver and a .45-caliber

semiautomatic pistol. Anderson testified that his purpose for bringing the guns to the

garage was to clean them, though he later admitted that he did not clean either of the

guns. Anderson placed both of the guns on a table in the garage, and the friends

finished watching the game and the following program—ESPN Sports Center.




Anderson v. State                                                                  Page 2
        When Sports Center ended at around 11:00 p.m., Anderson allegedly got up and

went over to a toolbox near the stool where Sanchez was sitting. Ballio stated that

Sanchez was bent over picking up BBs from the garage floor. A short time later, Ballio

observed Anderson holding the .22-caliber revolver in his right hand and that the

revolver was in a cocked position. Ballio noted that Anderson deliberately pressed the

revolver against Sanchez’s head, just behind his left ear, and pulled the trigger. Sanchez

then fell to the floor and began to bleed profusely, at which point Ballio recalled

Anderson saying, “Get the hell out of here now, Ballio,” while pointing the revolver in

Ballio’s direction. Stunned by what had just happened and in fear of his life, Ballio

opened the garage door and fled to his house across the street. Once Ballio was gone,

Anderson called 911 to report that he and Sanchez had been playing with guns and that

Sanchez had been shot.

        Alvarado Police Department officers responded to Anderson’s call minutes later.

When officers arrived at Anderson’s house, they discovered that the garage door was

shut and that no lights were on inside the house. Officers walked up to the front door

and knocked loudly.         Minutes later, the garage door opened and Anderson came

outside. According to officers, Anderson was intoxicated, though he appeared to have

reasonable control of his faculties.1         Anderson also appeared to be distraught and

crying. One of the officers entered the garage to assess the situation while another

officer remained outside with Anderson. Anderson told the officer the following: “me


        1At the crime scene, Anderson was administered a portable-breath-alcohol test that resulted in a
reading of 0.162.


Anderson v. State                                                                                Page 3
and him [Sanchez] were in the garage drinking and playing with [A]irsoft pistols. . . . I

picked up the [.]22[-]caliber pistol and aimed it at [Sanchez]. . . . I thought the gun was

unloaded. . . . The gun went off.”2

        Sanchez was later transported to John Peter Smith Hospital in Fort Worth, Texas,

where he died approximately twenty-five hours later. After Sanchez was transported to

the hospital, detectives arrived at the scene and requested that Anderson do a “walk-

through” to explain what had happened. Anderson agreed to do so and, according to

Detective Scott Heisey, explained that:

        He [Anderson] relates that the two gentlemen were sitting and shooting
        the [A]irsoft guns that were previously noted at each other, at objects in
        the room. And he wasn’t able to hit something, to some effect, he said “I
        can go find something that I can shoot that with.” He went inside,
        retrieved a [.]22 that was from his bedroom, and came back out. And Mr.
        Anderson states that Mr. Sanchez pulled his wrist to his head and said
        something along the lines of, “put me out of my misery,” and the gun just
        went off.[3]




        2   Anderson testified that he cleans his guns frequently and that the .22-caliber revolver had last
been used by Sanchez on New Years’ Day 2010. Anderson admitted that he is knowledgeable about guns
and is a gun enthusiast. Police found numerous rifles and handguns inside the house that he shared with
Sanchez. When examining the other firearms located in the house, police noticed that none of the
firearms were loaded. Police also observed an opened box of ammunition used for the .22-caliber
revolver in the garage. In addition, the State called a firearms expert, Jamie Becker, to testify that the .22-
caliber revolver was a deadly weapon; that the gunpowder residue that was found inside of Sanchez’s
wounds demonstrated that the revolver was fired at close range in Sanchez’s direction; that Sanchez did
not have any detectable gunpowder residue on his hands; and that the only way the revolver could have
fired is if it was loaded, the safety was off, the hammer was cocked, and Anderson had pulled the trigger.
Becker denied that the revolver would have spontaneously fired, as suggested by Anderson.

         3 The record reflected that Sanchez was estranged from his girlfriend, Redonna Grissom. On the

morning of the incident, Grissom and Sanchez got into an argument about taxes on a house that the two
had once shared. Grissom testified that the argument got heated but that Sanchez called later in the day
to apologize and to make up. In his own defense, Anderson described Sanchez as being in low spirits
that evening as a result of the fight with Grissom and used this to support his assertion that Sanchez shot
himself.

Anderson v. State                                                                                      Page 4
Anderson was then taken to the Alvarado Police Station in a police car. However, while

he was detained in the police car, Anderson said, “He [Sanchez] called me a bitch. Fuck

him!,” which was captured by the car’s audio recording device.                         Anderson was

eventually released from custody after his hand was swabbed for gun-residue analysis,

which ultimately yielded a negative finding, and other evidence was collected.

        While the police were at Anderson’s house, Ballio allegedly called Anderson’s

father, Virgil, to drive from Italy, Texas, to assist his son.                Virgil, who had been

convicted of several prior felonies, testified that Ballio told him to come to Anderson’s

house because Sanchez had shot himself and that Anderson was detained in a police

car. Virgil testified that when he arrived, he saw Ballio on the sidewalk and went over

to speak with him. According to Virgil, a police officer accompanied him while he

walked towards Ballio. Virgil recalled Ballio telling the police officer that he did not

know anything about the incident and denying that he was in the garage when the

shooting transpired. Ballio then invited Virgil inside and told him that Sanchez had

shot himself. Ballio disputed Virgil’s recollection of the incident. Ballio testified that

Virgil and Anderson’s brother, Wade, harassed him repeatedly to tell police that

Sanchez had shot himself and that he avoided the police initially because he was fearful

for his life as a result of Anderson pointing the gun at him and because of Virgil and

Wade’s alleged harassment.4 Nevertheless, Ballio went to the Alvarado Police Station


        4 Wade also testified at trial, and his testimony contradicted Ballio’s. Wade noted that Ballio

repeatedly called to tell him what had happened. According to Wade, each time he spoke to Ballio, the
story changed and, at one point in time, Ballio allegedly told Wade that Anderson’s life was in his hands.
Wade also recounted that Ballio started acting weird and paranoid after the incident transpired.


Anderson v. State                                                                                  Page 5
four days later to tell police that Anderson had intentionally shot Sanchez.              After

hearing Ballio’s story, police issued an arrest warrant for Anderson.

        Anderson was later indicted, in separate cause numbers, for murder and

aggravated assault against a potential witness, which corresponded to Ballio’s assertion

that Anderson pointed the gun at him and told him to “[g]et the hell out of here

now . . . .“   The two causes were consolidated in a single trial.          After hearing the

evidence, the jury convicted Anderson of the lesser-included offense of manslaughter,

acquitted him of the aggravated-assault-against-a-potential-witness charge, found on a

special issue that he had used a deadly weapon in the commission of the manslaughter,

and sentenced him to twenty years’ confinement with a $10,000 fine.5 The trial court

certified Anderson’s right to appeal, and this appeal ensued.

                                II.    EVIDENTIARY SUFFICIENCY

        In his sole issue on appeal, Anderson contends that the evidence is legally

insufficient to support his conviction for manslaughter. In particular, Anderson asserts

that “[t]he evidence at trial demonstrates that the victim . . . died as a result of his own

actions in grabbing a gun held by appellant.          At worst, Appellant was criminally

negligent.”

A. Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:



        5 Among the evidence presented were numerous witnesses who testified that Anderson was a
peaceful, law-abiding citizen.

Anderson v. State                                                                         Page 6
              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
       responsibility of the trier of fact fairly 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. "Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, at

**43-44 (Tex. Crim. App. Sept. 14, 2011).

       The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93.         Further, direct and circumstantial evidence are treated equally:

"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." Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the

factfinder 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.2d

459, 461 (Tex. Crim. App. 1991).



Anderson v. State                                                                          Page 7
       The sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically-correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “Such

a charge is one that accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).

B. Applicable Law

       As indicted in this case, a person commits manslaughter “if he recklessly causes

the death of an individual.” TEX. PENAL CODE ANN. § 19.04(a).

               A person acts recklessly, or is reckless, with respect to
       circumstances surrounding his conduct or the result of his conduct when
       he is aware of but consciously disregards a substantial and unjustifiable
       risk that the circumstances exist or the result will occur. The risk must be
       of such a nature and degree that its disregard constitutes a gross deviation
       from the standard of care that an ordinary person would exercise under
       all circumstances as viewed from the actor’s standpoint.

Id. § 6.03(c) (West 2011).

       On the other hand, criminally negligent homicide occurs when a person causes

the death of an individual by criminal negligence. See TEX. PENAL CODE ANN. § 19.05(a)

(West 2011).

              A person acts with criminal negligence, or is criminally negligent,
       with respect to circumstances surrounding his conduct or the result of his
       conduct when he ought to be aware of a substantial and unjustifiable risk
       that the circumstances exist or the result will occur. The risk must be of
       such a nature and degree that the failure to perceive it constitutes a gross

Anderson v. State                                                                     Page 8
       deviation from the standard of care that an ordinary person would
       exercise under all the circumstances as viewed from the actor’s
       standpoint.

Id. § 6.03(d). Essentially, the difference between manslaughter and criminally negligent

homicide is the culpable mental state required for each offense: recklessness for the

former and criminal negligence for the latter. See Thomas v. State, 699 S.W.2d 845, 849

(Tex. Crim. App. 1985); Nash v. State, 664 S.W.2d 343, 344 (Tex. Crim. App. 1984). In

other words, as described by the court of criminal appeals, reckless conduct involves:

       conscious risk creation, that is, the actor is aware of the risk surrounding
       his conduct or the results thereof, but consciously disregards that risk . . . .
       Criminal negligence . . . involves inattentive risk creation, that is, the actor
       ought to be aware of the risk surrounding his conduct or the results
       thereof. At the heart of reckless conduct is conscious disregard of the risk
       created by the actor’s conduct; the key to criminal negligence is found in
       the failure of the actor to perceive the risk.

Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).

C. Discussion

       On appeal, Anderson argues that, because he was not convicted of murder or

aggravated assault of a potential witness, the jury clearly did not believe Ballio’s

testimony and, thus, all of Ballio’s testimony should be disregarded. We disagree. As

noted above, it is well established that the factfinder 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, 805 S.W.2d at 461. In convicting Anderson of manslaughter but

acquitting him of aggravated assault of a potential witness, it is not clear that the jury

disbelieved all of Ballio’s testimony; it is arguable that the jury disbelieved only a



Anderson v. State                                                                         Page 9
portion of Ballio’s testimony.   Nevertheless, there is sufficient evidence to support

Anderson’s conviction, even without Ballio’s testimony.

       Anderson, a gun enthusiast and owner of many guns, admitted that he and

Sanchez were firing Airsoft guns at each other on the night of the incident and that he

went inside the house to retrieve two handguns when they were unable to topple a bolt

on a table. Among the handguns retrieved was a .22-caliber revolver that was used in

the shooting. Anderson also told police in his initial statement that he aimed the

revolver at Sanchez. See Thomas, 699 S.W.2d at 850 (“[A] defendant who is familiar with

guns, who knows a gun is loaded, and who points it at another person, is consciously

disregarding a risk that his conduct—pointing a loaded weapon at another—may cause

harm or death and is at least reckless.”) (citing Simpkins v. State, 590 S.W.2d 129, 134

(Tex. Crim. App. 1979)); Gaona v. State, 733 S.W.2d 611, 615-17 (Tex. App.—Corpus

Christi 1987, pet. ref’d) (holding that the evidence is legally sufficient to prove

manslaughter based on testimony that Gaona, who was familiar with rifles and

frequently hunted with rifles, aimed a rifle he knew was loaded in the general direction

of the victim and pulled the trigger while the gun was pointed to the ground to scare

the victim); Rodriguez v. State, 699 S.W.2d 358, 359 (Tex. App.—Dallas 1985, no pet.)

(affirming a manslaughter conviction where the evidence established that appellant

pointed a loaded gun at the victim and fired two shots in the general direction of the

victim); see also Fuller v. State, No. 01-06-01077-CR, 2008 Tex. App. LEXIS 7330, at **7-8

(Tex. App.—Houston [1st Dist.] Oct. 2, 2008, no pet.) (mem. op., not designated for

publication) (concluding that a rational jury could have found appellant guilty of

Anderson v. State                                                                  Page 10
manslaughter because appellant, who was familiar with guns, pointed a gun he knew

was loaded at the complainant and fired the gun). He later changed his story to suggest

that Sanchez grabbed his forearm so that the gun would be aimed at Sanchez’s head.

Anderson also explained that he brought the guns to the garage to clean them, not to

shoot them at targets. However, he acknowledged later in his testimony that he never

attempted to clean the guns that night.

       Lloyd White, M.D., the deputy medical examiner for the Tarrant County Medical

Examiner’s Office, noted that he performed an autopsy on Sanchez and determined that

the contact-entrance wound was slightly below and behind Sanchez’s left ear, which

would seem to refute Anderson’s story that Sanchez grabbed Anderson’s forearm to

point the gun at himself. Dr. White also testified that the general trajectory of the bullet

was forward and downward, which suggested that Anderson was standing over and

behind Sanchez when the shot was fired. Becker, the State’s firearms expert witness,

testified that the gunpowder residue found in Sanchez’s gunshot wounds indicated that

the gun was fired at a close range in Sanchez’s direction and that the revolver could

only be fired if it was loaded; the safety was off; the hammer was cocked; and the

trigger was pulled—all of which could be characterized as deliberate actions.

Moreover, police discovered an open box of ammunition that was used for the revolver,

and Anderson testified that he did not keep loaded weapons in the house. Both of these

facts support an inference that Anderson loaded the handgun when he brought it out to




Anderson v. State                                                                    Page 11
the garage that night.6         Furthermore, Anderson’s statement in the police car, “He

[Sanchez] called me a bitch. Fuck him!,” appears to suggest a motive in this case. Also,

despite Wade’s statement that Ballio indicated that Anderson’s life was in his hands,

most of the evidence proffered by the State corroborates Ballio’s testimony about what

had transpired that night. In convicting Anderson of manslaughter, it is apparent that

the jury did not believe the stories of Anderson and his family and friends that the

shooting was simply an accident for which he should be acquitted. See Chambers, 805

S.W.2d at 461. And to the extent that the testimony of Anderson and his friends

contradicts the State’s evidence, we must presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93.

        Therefore, based on the record before us, we conclude that the jury was rational

in concluding that Anderson, at the very least, recklessly caused the death of Sanchez.

See Jackson, 443 U.S. at 318-19, 99 S. Ct. 2788-90; Hooper, 214 S.W.3d at 13; see also TEX.

PENAL CODE ANN. § 19.04(a). We do not agree that Anderson’s actions amounted solely

to criminally negligent homicide because he intentionally brought the revolver to shoot

targets in the garage; he admitted to pointing the gun at Sanchez; an opened box of .22-

caliber ammunition was found in the garage; and the evidence demonstrated that

Sanchez was shot from behind—all acts that the jury rationally concluded were a


         6 To the extent that Anderson alleges that it was Sanchez’s fault that the revolver was loaded, the

fact that Anderson took a .22-caliber revolver to shoot targets in the garage and failed to check to see if it
was loaded before aiming it at Sanchez would appear to be reckless or a gross deviation from the general
standard of care that an ordinary person would exercise regarding the handling of firearms as viewed
from the actor’s standpoint. See TEX. PENAL CODE ANN. § 6.03(c) (West 2011).

Anderson v. State                                                                                    Page 12
conscious disregard of a substantial and unjustifiable risk, not a failure on Anderson’s

part to perceive that the gun might fire when he pointed it at Sanchez. See Thomas, 699

S.W.2d at 849; Nash, 664 S.W.2d at 344; Lewis, 529 S.W.2d at 553. Accordingly, we hold

that the evidence is legally sufficient to support Anderson’s conviction. See Jackson, 443

U.S. at 318-19, 99 S. Ct. at 2788-90; Hooper, 214 S.W.3d at 13. Anderson’s sole issue on

appeal is overruled.

                                    III.   CONCLUSION

       We affirm the judgment of the trial court.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 1, 2012
[CR25]




Anderson v. State                                                                  Page 13
