                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-184-CR


WARREN BRAZIEL                                                       APPELLANT

                                              V.

THE STATE OF TEXAS                                                         STATE

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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Warren Braziel appeals his conviction for aggravated assault

with a deadly weapon. A jury found Braziel guilty and assessed his punishment

at ten years’ confinement.       In a single point, Braziel challenges the factual

sufficiency of the evidence to support his conviction. We will affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                            II. B ACKGROUND F ACTS

      On the evening of August 7, 2006, Roy Gordon and his girlfriend,

Monnette Jenkins, attended a party at an apartment complex in Dallas.

Gordon, who was carrying Monnette’s cell phone, received two or three calls

from Braziel on Monnette’s cell phone. Braziel asked about Monnette, who was

his former girlfriend, wanting to know where she was and why Gordon was

with her. Gordon asked Braziel why he kept calling Monnette’s cell phone

because Braziel and Monnette’s relationship was over. Gordon described Braziel

as “mad” and testified that Braziel threatened him with the statement: “I[‘ve]

got something for you, partner.” Gordon did not receive any further calls from

Braziel on Monnette’s cell phone.

      Gordon and Monnette left the party early the next morning around 1:30

a.m. Gordon’s cousin, Bentley Jenkins, agreed to drive Monnette’s two-door

Honda back to the home of Joyce Jenkins, Monnette’s mother. Gordon and

Monnette sat in the backseat, with Gordon behind the passenger’s seat and

Monnette behind the driver’s seat.    Both Gordon and Monnette fell asleep

during the drive from Dallas to Fort Worth.

      After Bentley pulled into Joyce’s driveway, Monnette woke up Gordon

and told him that Braziel was there. Gordon heard the passenger-side door

opening, saw that Braziel was the person opening the door, and heard Braziel

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threaten to kill him. Gordon testified that he saw a .380 automatic in Braziel’s

hands and that he heard Braziel say, “Nigga, I’ll kill you,” before Braziel fired a

shot through the rear, passenger-side window. The bullet missed Gordon and

exited through the bottom, middle area of the back window.2 The shattered

glass from the bullet caused cuts to both Gordon and Monnette, who were both

still in the backseat when Braziel fired the gun.

      Bentley exited the car and ran into Joyce’s home. Joyce came to the

front porch and saw the passenger door open and Braziel standing next to the

door. She heard Braziel say, “I’m going to kill you.” She told Braziel to leave

and went inside and called the police. When she came back out, she noticed

a handgun in Braziel’s hand and saw him talking to Monnette. Braziel fled the

scene before the police officers arrived.

      Braziel testified and contradicted portions of the above evidence. First,

although he admitted that he had argued with Gordon during the cell phone

calls, Braziel denied saying, “I’ve got something for you, partner.” Second, he

testified that he went to Joyce’s house to speak with Monnette, not to

confront Gordon. Third, Braziel claimed that he had planned to shoot the gun




      2
        … The crime scene investigator, Officer David Ukel, testified that the
bullet likely entered through the right, rear window and exited through the rear
windshield.

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in the air to inform Gordon that he was armed, but the weapon accidentally

discharged while he was approaching Monnette’s vehicle.3 Fourth, he testified

that the bullet shot through the “passenger side in the back.” 4 Lastly, Braziel

testified that, while holding his gun, he never said to Gordon, “I’m going to kill

you,” but instead stated, “I ought to kill you.” He did not, however, deny that

“I ought to kill you” is threatening language, which he said while exhibiting a

gun.

       After hearing the above testimony, the jury found Braziel guilty of

aggravated assault with a deadly weapon and assessed his punishment at ten

years’ confinement. The trial court sentenced him accordingly. This appeal

followed.

                            III. S TANDARD OF R EVIEW

       When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.



       3
       … Braziel testified that he brought the gun to protect himself from
Gordon, but he admitted on cross-examination that he did not know that
Gordon was in the car. On cross-examination, the prosecutor also brought out
that although Braziel claimed he was going to fire the gun in the air to warn
Gordon that he was armed, he also claimed he did not know Gordon was in the
car.
       4
       … Braziel’s testimony on this point, however, is a little unclear because
he pointed out the entry and the exit of the bullet on exhibits shown to him
during his testimony, and we cannot discern where he pointed from the record.

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Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). 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, though legally sufficient,

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

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

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is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

          IV. F ACTUALLY S UFFICIENT E VIDENCE OF A GGRAVATED A SSAULT

      Braziel couches his sole point as a challenge to the factual sufficiency of

the evidence supporting his conviction for aggravated assault with a deadly

weapon.    Braziel argues that, while the evidence in the record is legally

sufficient to convict Braziel of aggravated assault, it is factually insufficient

because the overwhelming evidence establishes that he is guilty only of the

lesser included offense of deadly conduct.

      The trial court charged the jury on the lesser included offense of deadly

conduct and instructed the jury as follows:




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           Now, if you find from the evidence beyond a reasonable
      doubt that on or about the 7th day of August 2006, in Tarrant
      County, Texas, the defendant, Warren Braziel, did intentionally or
      knowingly threaten imminent bodily injury to Roy Gordon and the
      defendant did use or exhibit a deadly weapon during the
      commission of the assault, to-wit: a firearm, then you will find the
      defendant guilty of the offense of aggravated assault.

            Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will find the
      defendant not guilty of aggravated assault as charged in the
      indictment and you will next consider the offense of deadly
      conduct.

             Now if you find from the evidence beyond a reasonable doubt
      that on or about the 7th day of August 2006, in Tarrant County,
      Texas, the defendant, Warren Braziel, did knowingly discharge a
      firearm at or in the direction of one or more individuals, then you
      will find the defendant guilty of the offense of deadly conduct.

           Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will find the
      defendant not guilty.

Thus, the jury charge properly did not allow the jury to reach the lesser included

offense of deadly conduct if it found Braziel guilty of aggravated assault with

a deadly weapon. See generally Hall v. State, 225 S.W.3d 524, 536 (Tex.

Crim. App. 2007) (explaining submission of lesser included offense instruction);

Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005) (same);

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.) (same), cert.

denied, 510 U.S. 919 (1993).         Because the jury found Braziel guilty of

aggravated assault with a deadly weapon and did not reach the lesser included

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offense of deadly conduct, we will review the record to determine whether

factually sufficient evidence exists to support the jury’s finding.

      A person commits aggravated assault when he or she intentionally or

knowingly threatens to cause bodily harm to another while exhibiting a deadly

weapon. T EX. P ENAL C ODE A NN . §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp.

2007).

      In support of his factual sufficiency challenge—i.e., his contention that

the overwhelming evidence establishes only deadly conduct—Braziel relies

heavily on his trial testimony in arguing that he had no intention of shooting

Gordon and that he had brought the gun with him to Joyce’s house only in case

he needed to defend himself. Braziel also relies upon his testimony that he

meant to discharge the weapon in the air as a warning to Gordon and that this

is confirmed by the fact that Gordon was “not injured.” Finally, Braziel points

out that because of how close he was to the vehicle, he could have killed

Gordon if he had wanted to.

      We    must,   however,    give   due   deference    to   the    fact-finder’s

determinations, “particularly those determinations concerning the weight and

credibility of the evidence.” Johnson, 23 S.W.3d at 9. And here, the jury was

free to discount Braziel’s testimony and to believe the testimony of both Gordon

and Joyce that Braziel threatened to kill Gordon as he held a gun in his hand.

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In fact, Braziel himself admitted that he threatened Gordon with the statement,

“I ought to kill you,” while he exhibited a deadly weapon. Additionally, Braziel

actually discharged his gun, shattering the rear-side and back windows. And

finally, Braziel fled before police arrived. The Texas Court of Criminal Appeals

has held that escape, flight, and attempt to escape are always admissible as a

circumstance from which an inference of guilt may be drawn.          See, e.g.,

Thomas v. State, 530 S.W.2d 834, 836 (Tex. Crim. App. 1975).

      Thus, examining all of the evidence in a neutral light, favoring neither

party, the evidence supporting Braziel’s conviction for aggravated assault with

a deadly weapon is not so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust. Nor does the conflicting evidence—Braziel’s own

testimony raising the issue of deadly conduct—so greatly outweigh the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. See Watson, 204 S.W.3d at 414–15, 417; Johnson, 23

S.W.3d at 11; Burns v. State, No. 02-04-00601-CR, 2006 WL 412973, at

*1–4 (Tex. App.—Fort Worth Feb. 23, 2006, no pet.) (mem. op., not

designated for publication) (holding that evidence was factually sufficient to

support conviction for aggravated assault with a deadly weapon, despite

appellant’s contention that the shooting was accidental, because evidence




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revealed that appellant said, “Well, y’all shouldn’t’ve made me mad” and fled

the scene after shooting). We therefore overrule Braziel’s sole point.




                                V. C ONCLUSION

      Having overruled Braziel’s sole point, we affirm the trial court’s judgment.




                                                  SUE WALKER
                                                  JUSTICE


PANEL F:     CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 26, 2008




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