Opinion filed August 20, 2020




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-18-00227-CR
                                    __________

             TRACY KATHLEEN CHAMBERS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the County Court at Law
                              Taylor County, Texas
                        Trial Court Cause No. 1-1169-17


                      MEMORANDUM OPINION
       The jury convicted Appellant, Tracy Kathleen Chambers, of disorderly
conduct for displaying a firearm in a public place in a manner calculated to alarm.
The trial court assessed punishment at 180 days in jail, suspended the imposition of
the sentence, and placed Appellant on community supervision for twelve months.
We affirm.
      Appellant raises two issues on appeal. First, Appellant argues that the
evidence was insufficient to support the conviction. Specifically, Appellant argues
that the State failed to prove that Appellant acted knowingly or intentionally in a
manner calculated to cause alarm and that the State failed to prove that the offense
occurred in a public place. Second, Appellant argues that the trial court erred when
it denied her motion for new trial.
      We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of an offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
      The standard in Jackson requires the reviewing court to “defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the
witnesses’ credibility and the weight to be given” to the testimony. Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (emphasis omitted); accord Lancon v.
State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (“Appellate courts should afford
almost complete deference to a jury’s decision when that decision is based upon an
evaluation of credibility.”).
      Appellant lived on the first floor of an apartment building. She experienced
problems with her upstairs neighbors “almost immediately” after Appellant moved
in. Her chief complaints involved the odor of marihuana. Appellant’s next-door
neighbor, Darla Swaim, shared similar complaints, and the two decided to move out
at the same time and share expenses for the move. Swaim and Appellant could not
complete the move when they had intended to because the area between their
apartments and the parking lot was “filled up with weed smoke,” which made Swaim
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ill. Kiyauna Robinson was on the upstairs balcony; the offensive smoke came from
her cigar.
      Appellant attempted to resolve the issue and asked Robinson to smoke
elsewhere. When Robinson did not comply, Appellant called the police. Before the
police arrived, Robinson left the upstairs apartment with her younger brother and
nephew and began to put them in her vehicle that was parked in the parking lot of
the apartment complex. Appellant was in the parking lot at the time, sending text
messages and using her cell phone. Robinson believed that Appellant was acting
suspiciously and that Appellant was photographing her and the license plate on her
vehicle. Robinson asked Appellant to step away from her vehicle and asked, “[W]hy
[are you] taking a picture of me and my license plate?” Rather than respond,
Appellant left the parking lot and returned to her apartment.
      At this point, witness accounts of the incident diverge. However, it is clear
that Robinson followed Appellant to Appellant’s door to further question Appellant
as to whether she had been photographed. In Robinson’s version of the events, she
knocked on Appellant’s door, and after about fifteen seconds, Appellant came to the
door. When Appellant came to the door, she was yelling for Swaim to get her
firearm and for Robinson to “[g]et out of [her] face.” In Appellant’s version,
Robinson followed in hot pursuit from the parking lot, prevented Appellant from
closing the door to her apartment, and pounded aggressively on the doorjamb while
yelling and tormenting Appellant. Appellant testified that she told Robinson that
she “felt threatened.” Appellant then left her apartment, walked past Robinson, and
went to her vehicle to get a Ruger .380 semiautomatic handgun.
      After she got her handgun, Appellant made a second 9-1-1 call to report the
disturbance.   During the call, the dispatcher questioned Appellant about the
escalation of events from the original drug complaint. Appellant told the dispatcher
that she “got a picture of [Robinson]” and that she felt threatened. In the background
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of the call, Robinson can be heard yelling that Appellant had pulled a gun on her.
The dispatcher told Appellant that officers were on the way and that she should
return to her apartment and wait for the officers.
      Officer Jody Peavy of the Abilene Police Department responded to
Appellant’s original 9-1-1 call about the marihuana smoke. While Officer Peavy
was on his way to the scene, the call changed from a “drug use in progress” to a
“disturbance in progress involving a gun.” Officer Peavy arrived on the scene and
questioned Appellant, Robinson, Swaim, and Robinson’s sister.
      After he arrived at the scene, Officer Peavy checked Robinson for the odor of
marihuana and found none. He testified that he smelled the odor of a cigar but could
detect no marihuana odor on her clothing or hands.
       After Officer Peavy talked with all available witnesses, he arrested Appellant
for disorderly conduct with a firearm. He testified that, based on the totality of the
circumstances, the incident could have been easily avoided if Appellant had not left
her apartment to get a firearm. In his opinion, Appellant left the security of her
apartment, proceeded to put herself in close proximity to the alleged threat, and
prominently displayed her firearm. Witness accounts vary as to Appellant’s hand
and arm positions during the encounter, but Officer Peavy testified that, because
Appellant did not point the firearm at any particular person, he concluded that she
was displaying it in a manner to cause alarm.
      A person commits the offense of disorderly conduct if she “intentionally or
knowingly . . . displays a firearm or other deadly weapon in a public place in a
manner calculated to alarm.” TEX. PENAL CODE ANN. § 42.01(a)(8) (West 2016).
After the briefs in this case were filed, the Court of Criminal Appeals decided State v.
Ross, which also involved Section 42.01(a)(8). The court analyzed the meaning of
the phrase “a manner calculated to alarm” and found that the phrase means “a


                                           4
manner that is objectively likely to frighten an ordinary, reasonable person.” State v.
Ross, 573 S.W.3d 817, 824 (Tex. Crim. App. 2019).
      In Ross, the court noted that Texas is an open-carry state and that there could
be situations in which a “person might intentionally display a firearm in a public
place and, without any guiltiness of mind, exhibit it in a manner that is objectively
likely to frighten an ordinary person.” Id. But because Section 42.01(a)(8) includes
a culpable mental state, the Ross court concluded that the State must prove that
(1) the actor’s display was objectively alarming and (2) that the actor knew his
display was objectively likely to alarm. Id. at 826. The jury has the opportunity to
“impose its common sense on both of these elements,” and we defer to the jury’s
determination under the Jackson standard. Id.; see Jackson, 443 U.S. at 319.
      In her first issue on appeal, Appellant challenges the sufficiency of the
evidence supporting her conviction. Appellant’s challenge is two pronged; she
argues (1) that the State did not prove the required mental state and (2) that the State
failed to show the offense occurred in a public place.
      Appellant first argues that she did not intentionally display her firearm in a
manner calculated to alarm. She argues that she was in genuine fear for her safety
and that none of the State’s witnesses testified that they were alarmed. Even though
witness accounts vary, both sides provided evidence that Appellant moved from the
parking lot to her apartment and then to her vehicle to get her firearm. Both sides
also presented testimony that young children were inside one of the nearby vehicles.
At the time that Appellant displayed her firearm, she was fifteen to twenty feet away
from Robinson. Appellant testified that she displayed the firearm to “thwart”
Robinson’s aggression. Robinson and her sister described Appellant as “waving”
the firearm in an uncontrolled manner; others said that Appellant pointed the firearm
at the ground. With respect to the conflicting evidence, we presume that the jury
resolved the conflicts in favor of the verdict, and we defer to the jury’s determination
                                           5
on the issue. Jackson, 433 U.S. at 326; Brooks, 232 S.W.3d at 899. Viewing the
record in the light most favorable to the verdict, we find that a rational juror could
conclude that (1) Appellant’s display of the firearm was objectively alarming and
(2) that she knew that her display of the firearm was objectively likely to cause
alarm.
         In her first issue on appeal, Appellant also argues that the State failed to prove
that she displayed the firearm in a public place. We find this argument to be without
merit. The Penal Code defines “public place” as “any place to which the public or
a substantial group of the public has access [including] . . . the common areas of . . .
apartment houses.” PENAL § 1.07(a)(40). Appellant also testified that, during the
start of the confrontation, she refused to move from in front of Robinson’s vehicle
because she was on “a public sidewalk.” Therefore, by Appellant’s own admission,
she displayed the firearm in a public place. We overrule Appellant’s first issue on
appeal.
         In her second issue, Appellant argues that the trial court erred when it denied
Appellant’s motion for new trial because (1) acts of intimidation violated her due
process rights and (2) a new trial is mandated under Rule 21.3(e) of the Texas Rules
of Appellate Procedure, which requires a new trial “when a material defense witness
has been kept from court by force, threats, or fraud.”
         We review the denial of a motion for new trial for an abuse of discretion.
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses
its discretion “only when no reasonable view of the record” supports the ruling. Id.
Generally, a trial court does not abuse its discretion when it denies a motion for new
trial unless the defendant has demonstrated that her trial was seriously flawed and
that the flaws adversely affected her substantial rights to a fair trial. State v.
Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007). In a motion for new trial


                                              6
hearing, the trial court determines the credibility of the witnesses. Cloyer v. State,
428 S.W.3d 117, 122 (Tex. Crim. App. 2014).
         Appellant argues that she experienced intimidation during and after witness
testimony, which violated her due process rights. Specifically, Appellant alleges
that she felt uncomfortable and intimidated during her testimony because people in
the courtroom were “mouthing words” and making faces at her during her testimony.
At the hearing on the motion for new trial, Appellant testified that the same people
followed her outside the courthouse and continued to glare and mouth “threatening
[and] intimidating verbiage” at her. However, Appellant alleged few new facts and
failed to elaborate on how her testimony would have changed without the alleged
intimidation. At the hearing, Appellant testified that, due to the intimidation, she
was unable to remember to say that she was medically unable to move her arm in
the manner described by the State’s witnesses. However, Appellant provided only
her testimony and no other evidence of her medical condition.
         Appellant also called Swaim to testify at the hearing on the motion for new
trial.    But Swaim only testified that her original courtroom testimony was
“distracted” and that she did not “feel relaxed” due to the distractions. Without
further evidence, the trial court was free to make a credibility determination of the
witnesses’ testimony at the hearing. Cloyer, 428 S.W.3d at 122. We find that the
denial of the motion for new trial is supported by the record, and we hold that the
trial court did not abuse its discretion.
         Appellant argues for the first time on appeal that a new trial is mandated under
Rule 21.3(e), which requires a new trial “when a material defense witness has been
kept from court by force, threats, or fraud.” TEX. R. APP. P. 21.3(e). Appellant does
not show that any material witness was kept from court; instead, she argues that the
intimidation and courtroom distractions were “tantamount” to the same. In her
motion for new trial, Appellant complained that the verdict was contrary to the law
                                             7
and evidence and that her due process rights had been violated. Appellant failed to
assert a Rule 21.3(e) complaint or to argue that material witnesses were kept from
the court. Accordingly, Appellant did not preserve this issue, and it is outside the
scope of our review. See Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002);
see also TEX. R. APP. P. 33.1(a) (requiring that, “[a]s a prerequisite to presenting a
complaint for appellate review,” a timely request, objection, or motion must be made
and ruled upon by the trial court). We overrule Appellant’s second issue.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


August 20, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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