                                      In The

                                 Court of Appeals

                       Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-15-00138-CR
                             _________________

                     TROVOY KEITH JONES, Appellant

                                       V.

                       THE STATE OF TEXAS, Appellee

________________________________________________________________________

                  On Appeal from the Criminal District Court
                          Jefferson County, Texas
                         Trial Cause No. 14-19434
________________________________________________________________________

                          MEMORANDUM OPINION

      A Jefferson County jury found the appellant, Trovoy Keith Jones, guilty of

committing aggravated assault with a deadly weapon, a first degree felony. See

Tex. Penal Code Ann. §22.02(a)(2), (b)(1) (West 2011). The jury assessed

punishment at seventy-five years in prison. The trial court sentenced Jones in

accordance with the jury’s verdict.

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        In three issues, Jones challenges (1) the sufficiency of the evidence to

support his conviction; (2) the trial court’s failure to instruct the jury to disregard

inadmissible testimony of the victim; and (3) the trial court’s failure to grant his

motion for mistrial. We conclude the evidence is sufficient to support Jones’

conviction, and we further conclude that the trial court did not abuse its discretion

in refusing the request for a jury instruction to disregard testimony of a witness and

subsequently, denying Jones’ motion for mistrial. We affirm the trial court’s

judgment.

                                Factual Background

        According to the evidence presented at trial, on February 7, 2013, police

officers were dispatched to an apartment following a 911 call reporting that a

victim had been shot in the face. When officers first arrived at the scene, they

found Jones sitting on the floor in the bedroom holding a woman, later identified as

Whitney Savoy. Police officers noticed that Savoy had a gunshot wound to her

face.

        Jones informed the officers that he was asleep on the bed when Savoy came

running in through the back door of the apartment and collapsed in the bedroom,

stating that she had been shot. Savoy also told the officers that she had been

returning from another apartment unit, when an unknown assailant came up behind

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her and shot her. She stated that she was behind the apartment units and ran in

through the back door of her apartment and collapsed in the bedroom.

      Officers found the back door of the apartment open. Despite an extensive

search of the area, they were unable to locate a shell casing, blood or other

evidence from where the crime had reportedly occurred. Savoy was taken by

ambulance to the emergency room where a trauma surgeon examined her and

eventually performed surgery to remove the bullet. The bullet had entered Savoy’s

body just below her left jaw bone and passed through her neck where it hit the C-6

vertebra, then went through the spinal cord area and became lodged in the soft

tissue at the back of her neck. The trauma surgeon testified that as a result of the

injuries she received, Savoy would suffer permanent paralysis, having no

movement of her legs. The trauma surgeon described her injuries as serious and

permanent.

      There is evidence that police detectives doubted Savoy’s initial explanation

of how she had been shot. Savoy maintained this version of the events from

February, 2013, until sometime in August, 2013, when she allegedly told a friend

that Jones had actually been the person who shot her. In March of 2014, Savoy first

informed one of the detectives investigating her case that Jones had shot her.



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      Savoy testified she and Jones had been dating for almost one year when the

incident occurred. On the day before the incident, she had received a sizeable

income tax refund. When Jones found out about the refund check being deposited

in her bank account, he asked Savoy for some of the money. Savoy initially

declined his request, telling Jones that she had obligations she had to take care of

with the funds. The following day, Savoy was with Jones most of the day and into

the early part of the evening. They returned to her mother’s apartment where she

was staying, with her two children. She sat the children in the living room, turned

on the television, then she and Jones went to the bedroom. According to Savoy,

immediately after having sexual relations, Jones reached to the floor, picked up a

.22 pistol and pointed it directly into Savoy’s face. Savoy turned her head away,

and as she was turning her head back towards Jones, she saw the pistol within

inches of her face. Savoy then heard a loud ringing in her ears and felt herself

slowly sinking to the floor. Before falling unconscious, she saw Jones pick

something up from the floor and run out of the room and then heard the back door

slam. When she regained consciousness, she lay on the floor, unable to move and

aware that she was bleeding. Jones came back into the room and, after seeing that

she was conscious, made the statement that he was going back to the penitentiary.



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      Savoy recalled that Jones made a call to a friend and after a short while,

called 911 and reported that his “wife” had been shot. Savoy told the jury that

before the police and paramedics arrived, Jones stuck his finger into the bullet

wound on her face and threatened to harm her children if she ever told the police

that Jones was the assailant. Instead, he made up the story about her going for a

cigarette and being shot by an unknown assailant behind the apartment complex,

which she then repeated to the police.

      The trauma surgeon who examined and operated on Savoy on the night of

her injury, testified that the gun shot damaged Savoy’s spinal cord at level C-6,

which would have completely incapacitated her legs and the majority of her ability

to use her arms. He explained that the gun shot would have caused her to

immediately lose sensation from her clavicle bone all the way down her body. In

short, according to the trauma surgeon, “[w]here she got shot is where she

dropped.” As such, he concluded that Savoy’s injuries were inconsistent with the

story that she was shot outside the apartment and then ran into the bedroom

through the backdoor.

                           Sufficiency of the Evidence

      In his first issue, Jones challenges the sufficiency of the evidence to establish

his identity as the person who knowingly or recklessly caused Savoy’s bodily

                                          5
injury. According to Jones, the jury could not have found him guilty beyond a

reasonable doubt given the lack of physical evidence linking him to the crime and

Savoy’s inconsistent statements regarding the identity of the perpetrator.

      We review a challenge to the sufficiency of the evidence in the light most

favorable to the verdict to determine if a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.

Crim. App. 2010). The factfinder is the ultimate authority on the credibility of the

witnesses and the weight to be given their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. 1981); see Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). We give deference to the jury's responsibility to fairly

resolve conflicting testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) If the record contains conflicting inferences, we must

presume that the fact finder resolved such facts in favor of the verdict and defer to

that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see

Jackson, 443 U.S. at 326. An appellate court determines “‘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.’” Clayton, 235

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S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16–17). In viewing the record,

“[d]irect and circumstantial evidence are treated equally: ‘[c]ircumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.’” Id. (quoting

Hooper, 214 S.W.3d at 13).

      Based on the indictment in Jones’s case, the State was required to prove that

Jones intentionally and knowingly caused serious bodily injury to his girlfriend,

Savoy, by using a deadly weapon— a firearm. See Tex. Penal Code Ann. §

22.02(a)(2). As noted above, on appeal, Jones only challenges the identity element

of the offense. “[T]he State may prove the defendant’s identity and criminal

culpability by either direct or circumstantial evidence, coupled with all reasonable

inferences from that evidence.” Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim.

App. 2009).

      There is direct evidence of Jones’s identity as the person who shot Savoy.

Savoy specifically identified Jones as the shooter and described how he used a

firearm and shot her point blank in the face, rendering her paralyzed and disabled

for life. Although Savoy initially informed officers that she was shot outside the

apartment and did not implicate Jones as the shooter for several months, Savoy

testified that she was afraid of what Jones would do to her children if she told the

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truth. The jury could have believed Savoy’s testimony that Jones had threatened

her and that she was in fear for her life and the lives of her children.

      Jones did not testify at the trial, but his conversation with the 911 operator

and his initial statements to the police were admitted into evidence and provided to

the jury. Jones informed the 911 operator that he was inside the apartment when

Savoy ran inside and told him that she had been shot. Jones informed operators that

he did not know who had shot Savoy. When police officers arrived, Jones’s told

them that Savoy ran into the apartment through the backdoor and into the bedroom

after she had been shot. However, the trauma surgeon testified that Savoy was

immediately paralyzed at the time of the gunshot and fell where she was shot,

calling into question the credibility of Jones’s version of the events. Whereas, the

trauma surgeon’s testimony bolstered Savoy’s testimony suggesting her version of

the events was more likely than what Jones had offered to officers. Moreover,

officers found no blood on the exterior of the back door despite Savoy’s reported

bloody injuries. Officers found the back door of the apartment open, but the jury

could have believed that this was the result of Jones’ staging of the area. Giving

proper deference to the role of the jury in evaluating the credibility of the evidence

and the weight to give the evidence, we hold the evidence was sufficient for a



                                           8
rational trier of fact to have found the essential elements of the offense beyond a

reasonable doubt. We overrule issue one.

                  Denial of Instruction and Motion for Mistrial

      In his second issue, Jones complains the trial court erred when it denied his

request for an instruction to the jury to disregard testimony to which the trial court

sustained a hearsay objection. If a trial court rules that testimony heard by a jury

should be excluded from the jury’s consideration, the trial court should then (either

upon request or sua sponte) direct the jury to disregard the at-issue testimony. See

Lollis v. State, 232 S.W.3d 803, 810 (Tex. App.—Texarkana 2007, pet. ref’d);

Mitchell v. State, 191 S.W.3d 219, 223 (Tex. App.—San Antonio 2005, pet. ref’d).

      In this case, Savoy provided testimony about the circumstances following

the shooting, including her rehabilitation in Houston. When questioned about

Jones’s actions after returning from Houston, Savoy began to respond but her

response was interrupted by an objection:

      Q.   When you came back, what did the defendant do? When you
      came back from Houston, what did the defendant do?

      A.   I end up coming back. Like something happened out there, like
      somebody had said that he was talking about --

      [DEFENSE COUNSEL]:               Your Honor, I object.

      A.     -- marijuana.

                                          9
Defense counsel then explained that he objected “to the hearsay statements[.]”The

trial court sustained the objection. Thereafter, defense counsel asked that the jury

be instructed to disregard the hearsay statements. The trial court responded that the

witness did not actually make a hearsay statement due to the objection, so there

was nothing for the jury to disregard. From our review of the record, it appears as

though Savoy continued to testify while counsel was objecting and the trial court

did not hear Savoy’s response.

      In any case, if the trial court erred by not issuing a properly requested

instruction to disregard, such error will not result in reversal of the appellant’s

conviction unless the reviewing court is convinced that the error affected the

appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Rivera-Reyes v. State,

252 S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] no pet.) (“The admission

of inadmissible hearsay constitutes non-constitutional error subject to the harm

analysis rule under Texas Rule of Appellate Procedure 44.2(b), which requires the

reviewing court to disregard non-constitutional error that does not affect a criminal

defendant’s substantial rights.”)   An appellant’s substantial rights are affected

when the error had a substantial and injurious effect or influence in determining the

jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997);

Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet.

                                         10
ref’d). We will consider the error harmless, if after examining the record as a

whole, we are reasonably assured the error did not influence the jury verdict or had

but slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).

      Savoy’s hearsay statement at issue did not directly implicate nor imply that

Jones had committed an extraneous offense or a crime of any kind, just that

someone said Jones was talking about marijuana. The jury had previously heard

testimony from Savoy, without objection, that she and Jones had purchased and

smoked synthetic marijuana. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.

App. 1999) (concluding that any error in admitting hearsay evidence was harmless

in light of other properly admitted evidence proving the same fact); Anderson v.

State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (en banc) (concluding that if

the fact to which the hearsay relates is sufficiently proved by other competent and

unobjected to evidence, then admission of the hearsay evidence is properly deemed

harmless and does not constitute reversible error). The State did not emphasize nor

mention the marijuana statement thereafter. Therefore, assuming error without

finding such, we are confident that any error did not affect Jones’ substantial

rights. See Tex. R. App. 44.2(b); Brooks, 990 S.W.2d at 287; Anderson, 717

S.W.2d at 627. We overrule issue two.

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       In his third issue, Jones complains of the trial court’s refusal to grant a

mistrial after the trial court refused to instruct the jury to disregard Savoy’s hearsay

statement. Because we have concluded that any error did not affect Jones’

substantial rights, we necessarily determine no error by the trial court in denying

Jones’ subsequent motion for mistrial. We overrule issue three.

       Having overruled all of Jones’ issues on appeal, we affirm the judgment of

the trial court.

       AFFIRMED.



                                               ______________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on May 13, 2016
Opinion Delivered January 25, 2017
Do not publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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