                                                                                                     PD-0043-15
                                                                                    COURT OF CRIMINAL APPEALS

JANUARY 16, 2015                      PD-0043-15                                                     AUSTIN, TEXAS
                                                                                   Transmitted 1/7/2015 8:15:22 PM
                                                                                    Accepted 1/16/2015 2:17:34 PM
                                                                                                      ABEL ACOSTA
                                 Cause No. ________________                                                   CLERK

                      TO THE COURT OF CRIMINAL APPEALS

                                 OF THE STATE OF TEXAS

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                                  TOMMY JAMES PARVIN
                                            Petitioner

                                                 VS.

                                   THE STATE OF TEXAS
                                              Respondent.

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    Petition in Cause No. 4528 from the 271st Judicial District Court of Jack County,
     Texas and Cause No. 02-13-00565-CR from the Court of Appeals for the Second
                           Supreme Judicial District of Texas.

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                     PETITION FOR DISCRETIONARY REVIEW

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                                                        Paul Belew
                                                        S.B.N.: 00794926
                                                        P.O. Box 1026
                                                        Decatur, Texas 76234
                                                        (940) 627-6400
                                                        (940) 627-6408 (facsimile)
                                                        ATTORNEY FOR PETITIONER,
                                                        TOMMY PARVIN


                    PETITIONER REQUESTS ORAL ARGUMENT
                         TABLE OF CONTENTS

TABLE OF CONTENTS                            I

INDEX OF AUTHORITIES                         ii

STATEMENT REGARDING ORAL ARGUMENT            2

STATEMENT OF THE CASE                        2

STATEMENT OF THE PROCEDURAL HISTORY          2

GROUNDS FOR REVIEW                           3

ARGUMENT AND AUTHORITIES                     3

PRAYER FOR RELIEF                            8

CERTIFICATE OF SERVICE                       9




                                -I-
                           INDEX OF AUTHORITIES

Cases:

Parvin v. State,
      No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion)   5, 6, 7

Statutes:

TEX. PENAL CODE ANN., § 22.01(a) (West 2013)                            7

TEX. PENAL CODE ANN., § 22.02(a) (West 2013)                            7

TEX. PENAL CODE ANN., § 22.05(b) (West 2013)                            7

TEX. PENAL CODE ANN. § 30.02(a)(3)                                      5




                                       -II-
                                NO. ________________

                                              IN THE

                                    COURT OF CRIMINAL

                                             APPEALS

                                            OF TEXAS

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                                   TOMMY JAMES PARVIN
                                        Petitioner

                                                 VS.

                                    THE STATE OF TEXAS

                   ------------------------------------------------------------------

        Petition in Cause No. 4528 from the 271st Judicial District Court of Jack
      County, Texas and Cause No. 02-13-00565-CR from the Court of Appeals for
                      the Second Supreme Judicial District of Texas.

==============================================================
              PETITION FOR DISCRETIONARY REVIEW
==============================================================

TO THE HONORABLE COURT OF CRIMINAL APPEALS

          COMES NOW Tommy Parvin(Hereinafter, "Petitioner") by and through his attorney

of record and files this, his Petition for Discretionary Review and herein respectfully requests

this Court to grant discretionary review of the above named cause for the reasons set forth

herein:




                                                  -1-
                 STATEMENT REGARDING ORAL ARGUMENT

      Petitioner requests oral argument to the extent it would be helpful to the Court.

                            STATEMENT OF THE CASE

      On December 12, 2012 Defendant Tommy Parvin was indicted in Cause Number

4528 alleging that on or about September 14, 2012 he committed Burglary of a Habitation

with Intent to Commit Other Felony, Aggravated Assault with a Deadly Weapon and Deadly

Conduct - Discharge of a Firearm. RR 2:29:3-30:8.

      The case proceeded to trial on October 22, 2013, 2012. R.R. 1:1. On October 23,

2012 the jury returned a verdict in which it found Tommy Parvin guilty on all counts. R.R.

3:29:12-23.   A judgment was entered sentencing Defendant to confinement in the

Institutional Division of the Texas Department of Criminal Justice for thirty years on the

burglary count and twenty years on both the aggravated assault and deadly conduct charges.

      The case was then appealed to the Second Court of Appeals. The Court of Appeals

ruled against Petitioner's No Evidence / Insufficient Evidence challenge in an unpublished

opinion. See Appendix.

      This Petition for Discretionary Review ensued.

                 STATEMENT OF THE PROCEDURAL HISTORY

      Mr. Parvin was indicted on December 7, 2012 by a Jack County Grand Jury of the

271st Judicial District Court on charges of Burglary of a Habitation with Intent to Commit

Other Felony, Aggravated Assault with a Deadly Weapon and Deadly Conduct - Discharge


                                            -2-
of a Firearm. RR 2:29:3-30:8. On October 22, 2013 the case was tried before a jury in the

271st Judicial District Court for Jack County, Texas, Judge John Fostel presiding. See, e.g.,

R.R. 1:1.

       On October 23, 2012 the jury returned a verdict in which it found Tommy Parvin

guilty on all counts. R.R. 3:29:12-23. A judgment was entered sentencing Defendant to

confinement in the Institutional Division of the Texas Department of Criminal Justice for

thirty years on the burglary count and twenty years on both the aggravated assault and deadly

conduct charges. Defendant thereafter filed an Affidavit of Indigency and his Notice of

Appeal.

       The Court of Appeals for the Second Supreme Judicial District of Texas issued a

Memorandum Opinion on December 4, 2014. No Motion for Rehearing was filed. The

instant Petition for Discretionary Review followed within thirty days.

                               GROUNDS FOR REVIEW

1.     There Was No Evidence to Support a Conviction for Burglary of a Habitation.

2.     There Was No Evidence to Support the Convictions for Aggravated Assault with a

       Deadly Weapon nor for Deadly Conduct, Discharge of a Firearm.

                          ARGUMENT AND AUTHORITIES

I.     The Background:

              On or about September 14, 2012 Robert Cunningham and his girlfriend, Jessica

Kincaid, were celebrating Robert’s birthday at their residence. R.R. 2:108:12-16. Justin


                                             -3-
Murphy (one of the two victims) arrived about 7:00 p.m. R.R. 2:137:19-21, but, see, 108:17-

19. Mr. Murphy borrowed Jessica Kincaid’s car to take Jackee Bailey home; while out he

stopped at Allsup’s. R.R. 2:110:18-23; 111:12-25; 112:6-14. At Allsup’s Mr. Murphy

bought a pack of cigarettes and put gas in Jessica’s car using $10.00 from Robert

Cunningham’s wallet that had been left in the car. R.R. 2:111:12-25; 112:6-14.

       After Mr. Murphy left the party, Robert Cunningham discovered that the ten dollars

($10.00) was missing from his wallet. 2:195:21-196:11. Upon discovering the money

missing, Mr. Cunningham stated that he was going to Mr. Murphy’s house to see what had

happened to the money. R.R. 2:196:9-11.

       Mr. Cunningham left in Mr. Parvin’s vehicle with Chris Vega and Scott Henderson.

R.R. 2:196:17-19; 197:21-22. Jessica Kincaid followed in her car with Tabitha Kincaid and

Jackee Bailey. R.R. 2:197:16-17.

       Upon arriving at Mr. Murphy's home, Ìr. Cunningham and Mr. Murphy "wrestled"

for about ten (10) minutes after which Mr. Cunningham left. R.R. 2:199:15-200:19; 200-22-

201:4. Ìr. Vega then followed or pursued Mr. Murphy into the backyard, where Mr.

Murphy grabbed a metal T Post and was threatening Ìr. Vega demanding that he leave.

R.R. 2:201:12-24. Mr. Murphy then dropped the post and walked in his back door and Mr.

Vega walked to the front of the house. R.R. 2:121:6-11; 122:4-13; 201:17-202:5; 203:6-14.

       Jessica Kincaid testified that Mr. Murphy walked out of his house carrying what

appeared to be an AR-15 threatening to shoot Mr. Vega, and that Mr. Vega then became


                                            -4-
extremely upset complaining that this was the second time Mr. Murphy had pulled a gun on

him. 2:203:10-204:18-23; 219:15-25; 205:3-6. He then kicked down the door, a single shot

was fired, Mr. Vega ran from the porch, got a gun from Mr. Parvin and fired four shots at the

house. R.R. 2:205:7-9; 206:7-8; 218:2-10; 207:11-121; 208:8-20.

II.    There Was No Evidence to Support a Conviction for Burglary of a Habitation.

       Burglary occurs when without the owner’s effective consent, the person enters a

habitation with the intent to commit aggravated assault with a deadly weapon. Parvin v.

State, No. 02-13-00565-CR (December 4, 2014) (Memorandum Opinion) at 6 [Hereinafter,

"Parvin v. State") citing TEX. PENAL CODE ANN. § 30.02(a)(3). It seems undisputed Mr.

Parvin never entered the house. See, e.g., R.R. 2:221:7-23; 2:224:16-18; 225:2-7; 226:1-23.

The Court of Appeals, however, correctly observed that Mr. Parvin could nevertheless be

found guilty under the law of parties. Parvin v. State, 6. In order to be guilty under the law

of parties, however, two things must be established: (1) an intent to promote or assist the

commission of the offense; and (2) the person must act by soliciting, encouraging, directing,

aiding, or attempting to aid the other person to commit the offense. Id. The Court of

Appeals concluded that:

       A rational factfinder also could have determined that Parvin was acting to promote
       or assist in the burglary from the evidence that he drove the group of men to Murphy’s
       house, encouraged Cunningham’s fight with Murphy, pointed a gun at Murphy, shot
       at Murphy’s house, and handed the gun to Vega.

Parvin v. State, 8. The evidence adduced at trial, however, indicated Mr. Parvin drove the

group to Mr. Murphy's house on an unrelated matter. See, e.g., R.R. 2:151:10-14. Similarly,

                                             -5-
the wrestling confrontation was unrelated to the burglary or the events leading to Mr. Vega's

entry into the house. Id.; see, also, R.R. 2:215:4-11. It was only after Mr. Murphy displayed

a realistic looking BB gun that Mr. Vega became intent upon breaking down the door and

getting to Mr. Murphy. R.R. 2:203:13-16; 204:1-23; 2:205:4-6; 2:206:3-8; 2:220:2-12. In

fact this was a personal matter between Mr. Vega and Mr. Murphy arising from the fact that

Mr. Murphy had previously pulled a gun on Mr. Vega. R.R. 2:205:4-6. Indeed, prior to that

time, the uncontradicted testimony is that Mr. Vega had no intention of entering Mr.

Murphy's residence. R.R. 2:203:7-14. It was a distinct and separate confrontation wholly

unrelated to any one or any purpose of anyone other than Mr. Murphy and Mr. Vega. There

was no evidence of intent.

       The Court also noted that Mr. Parvin pointed and fired a gun at Mr. Murphy and his

house. Parvin v. State, 8. Even assuming Mr. Parvin did point or fire a gun, those acts were

alleged to have occurred as the group was leaving and after any burglary was completed. It

could not serve to solicit, encourage, direct, aid, or act as an attempt to aid Mr. Vega to

commit the now completed burglary.

III.   There Was No Evidence to Support the Convictions for Aggravated Assault with
       a Deadly Weapon nor for Deadly Conduct, Discharge of a Firearm.

       It is undisputed that no one saw Mr. Parvin fire any shots. Parvin v. State, 10. To the

contrary, Mr. Parvin appears to have remained by his vehicle during the entire episode and

no one observed any aggressive behavior on his part other than Mr. Murphy's allegation that

Mr. Parvin pointed a gun at him.

                                             -6-
       Both Aggravated Assault and Deadly Conduct require an intent -- in the former an

intent (intentionally or knowingly) to threaten another with imminent bodily injury and in the

latter, an intent (knowingly) to discharges a firearm at or in the direction of an individual,

habitation, building or vehicle. See, TEX. PENAL CODE ANN., §§ 22.02(a), 22.01(a), 22.05(b)

(West 2013). The two factors relied upon by the Court of Appeals in sustaining the weapons

convictions were the testimony of Jessica that Mr. Parvin handed a gun to Vega and Mr.

Murphy's testimony that Mr. Parvin pointed a gun at him. Parvin v. State, 9-10.

       Ms. Kincaid testified that she did not have a clue where the gun came from, did not

know whose gun it was, and perhaps most significantly, did not know if Mr. Parvin gave the

gun to Mr. Vega, or if Mr. Vega just grabbed it. R.R. 2:225:8-10; 2:225:11-12; 2:225:23-

226:10. She did not report any aggressive actions by Mr. Parvin. Mr. Murphy was upset,

scared, terrified and his adrenalin was pumping. R.R. 2:59:18-20; 2:131:4-8. His testimony

that Mr. Parvin was holding a gun that was pointed in his direction is the only aggressive act

by Mr. Parvin observed by him.

       Neither act, however, absent a criminal intent constitutes criminal conduct. The

absence of any motive on the part of Mr. Parvin coupled with the absence of any aggressive

behavior means that intent could only be inferred from the acts themselves. This circular

approach, however, virtually eliminates any practical requirement of intent as an element of

the crimes.




                                             -7-
                                PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Tommy Parvin respectfully requests

that the Court of Criminal Appeals grant Appellant's Petition for Discretionary Review and

for such other and further relief to which he may show himself to be entitled.

                                          Respectfully submitted,

                                           /s/ Paul Belew
                                          Paul Belew
                                          S.B.N.: 00794926

                                          BELEW & SINGLETON
                                          P.O. Box 1026
                                          Decatur, Texas 76234
                                          (940) 627-6400
                                          (940) 627-6408 (facsimile)

                                          FOR APPELLANT
                                          ÔOMMY PARVIN




                                            -8-
                            CERTIFICATE OF SERVICE

      This is to certify that on this, the 5th day of January, 2015 a true and correct copy of

the above and foregoing document has been forwarded by means of electronic filing as

follows:

      Greg Lowery
      Wise County District Attorney's Office
      Wise County Courthouse
      Second floor
      Decatur, Texas 76234



                                                    /s/ Paul Belew
                                                   Paul Belew




                                             -9-
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00565-CR


TOMMY JAMES PARVIN                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 271ST DISTRICT COURT OF JACK COUNTY
                      TRIAL COURT NO. 4528

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

                               I. INTRODUCTION

     A jury found Appellant Tommy James Parvin guilty of one count of burglary

of a habitation with intent to commit aggravated assault with a deadly weapon,

one count of aggravated assault with a deadly weapon, and one count of deadly

conduct by discharging a firearm. See Tex. Penal Code Ann. §§ 22.01(a)(2),


     1
      See Tex. R. App. P. 47.4.
22.02(a)(2), 22.05(b), 30.02(a)(3) (West 2011 & Supp. 2014).              After Parvin

entered a plea of true to the enhancement paragraph in the indictment, the trial

court sentenced him to thirty years’ confinement for the burglary conviction and

to twenty years’ confinement for both the aggravated assault and deadly conduct

convictions. The trial court ordered that the sentences run concurrently. In three

issues, Parvin contends that there is insufficient evidence to sustain his

convictions on all three counts. We will affirm.

                             II. FACTUAL BACKGROUND

      During a birthday celebration that Jessica Kincaid threw for her boyfriend

Robert Cunningham at their house, Justin Murphy borrowed Jessica’s car to take

a guest home.      Murphy then stopped at a gas station and used $10 from

Cunningham’s wallet, which was in the car, for gas. Murphy returned to the

party. He later left the party with his girlfriend Ciarra Bivins after Bivins got into a

physical altercation with Jessica’s sister Tabitha.

      After Murphy left the party, Cunningham discovered that $10 was missing

from his wallet and decided to go confront Murphy at his house. Parvin drove

Cunningham to Murphy’s house; Chris Vega and Scott Henderson, who had also

been at Cunningham’s birthday party, rode in Parvin’s car. Jessica, Tabitha, and

another female who was at the party rode in a separate car to Murphy’s house.

      Cunningham knocked on Murphy’s front door, and when Murphy

answered, Cunningham said he wanted to talk to him. Murphy stepped out onto

the porch, and Cunningham asked why Murphy had stolen money from his


                                           2
wallet. Cunningham swung at Murphy, and the two proceeded to “wrestle” for

about ten minutes. Parvin, Vega, and Henderson goaded Cunningham to “fight

like a man” and “take care of business” because he had “[gone] over [t]here to do

something.”    At some point, Cunningham’s friend drove up and talked

Cunningham into leaving with him.

      Vega and Parvin remained at Murphy’s house.         Murphy went into his

backyard, and Vega and Parvin followed him. Murphy picked up a metal T post

in his backyard and demanded that the men leave his property. Murphy then

dropped the post and walked in his house through the back door. Murphy heard

a commotion at his front door, so he grabbed a BB gun that looked like an AR-

15. Although the testimony at trial differed on what exactly happened next, Vega

ultimately kicked in Murphy’s front door, and several gunshots were fired at and

into Murphy’s house.

      Murphy testified that after he went inside the back door, Vega began

kicking in the front door. Murphy grabbed the BB gun inside but dropped it to

hold the front door shut. He looked through the glass window of the door and

saw Vega “standing there with a pistol . . . , pointing it at [Murphy].” Murphy

moved his head and Vega fired two gunshots into the door. Everything got quiet

after that, so Murphy stepped out on the porch and saw everyone walking away

from his house. Murphy testified, “[A]nd then that’s when I [saw Parvin] had the

pistol pointed at me.” Parvin was standing in Murphy’s yard about fifteen feet

from him; Murphy turned to walk back inside and then heard two gunshots. One


                                       3
shot struck the door frame to Murphy’s left and the other hit above the door.

Murphy testified that he and Parvin did not like each other and had been in a fist

fight two weeks prior to the incident at his house. Parvin had dated Murphy’s

girlfriend, Bivins, prior to Murphy dating her.

      Jessica testified that after Murphy entered his house through his back

door, he came out on the front porch with “a big black [gun]” about two or three

feet long and told everyone to leave his house. Murphy went back inside, but

Vega became very upset, yelling, “[T]hat’s the third time [Murphy] pulled a gun on

me.” Vega kicked in the front door, and Murphy managed to hold it up to keep it

closed. Vega began to walk off the porch, and then Jessica heard a gunshot go

off from the area of Parvin’s car. Jessica did not see who fired the gun, but after

she heard the gunshot, she saw Parvin hand Vega the gun and saw Vega fire

four shots at Murphy’s house.

      At this point, the group of people left Murphy’s property.           Murphy’s

neighbor called 911 and told the operator that he had heard six to eight

gunshots.    Police arrived shortly thereafter.    Officers found bullet holes in

Murphy’s front door and the front of his house and found bullet fragments inside

the house.

                              III. STANDARD OF REVIEW

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential


                                           4
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct.

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011). The

trier of fact is the sole judge of the weight and credibility of the evidence. See

Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393 S.W.3d at 768.

Thus, when performing an evidentiary sufficiency review, we may not re-evaluate

the weight and credibility of the evidence and substitute our judgment for that of

the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

Instead, we determine whether the necessary inferences are reasonable based

upon the cumulative force of the evidence when viewed in the light most

favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.

2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Temple, 390 S.W.3d at 360.

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Winfrey, 393 S.W.3d at 771; Hooper v. State, 214 S.W.3d 9,


                                        5
13 (Tex. Crim. App. 2007). We must review circumstantial evidence of intent

with the same scrutiny as other elements of an offense. Laster v. State, 275

S.W.3d 512, 519–21 (Tex. Crim. App. 2009) (overruling Margraves v. State, 34

S.W.3d 912, 919 (Tex. Crim. App. 2000)); see Kutzner v. State, 994 S.W.2d 180,

184 (Tex. Crim. App. 1999) (“Circumstantial evidence, by itself, may be enough

to support the jury’s verdict.”). Although motive and opportunity are not elements

of a criminal offense, they can be circumstances that are indicative of guilt and

therefore may be properly considered in an evidentiary sufficiency review.

Temple, 390 S.W.3d at 360.

                        IV. SUFFICIENCY OF THE EVIDENCE

                           A. Burglary of Habitation

      In his first issue, Parvin argues that insufficient evidence exists to support

his conviction for burglary of a habitation with intent to commit aggravated

assault with a deadly weapon.      A person commits an offense if, without the

owner’s effective consent, the person enters a habitation with the intent to

commit aggravated assault with a deadly weapon.          Tex. Penal Code Ann. §

30.02(a)(3).

      Even if a person does not personally commit the offense, a court may find

him guilty as a party if, “acting with intent to promote or assist the commission of

the offense, he solicits, encourages, directs, aids, or attempts to aid the other

person to commit the offense.” Id. § 7.02(a)(2) (West 2011). Under the law of

parties, the defendant need not even enter the building. Powell v. State, 194


                                         6
S.W.3d 503, 506 (Tex. Crim. App. 2006). In determining whether the accused is

guilty as a party, we may consider events occurring before, during, and after

commission of the offense and may rely on actions of the defendant that show an

understanding and common design to commit the offense. King v. State, 29

S.W.3d 556, 564 (Tex. Crim. App. 2000). Although mere presence at the scene

of the offense is not enough, presence is a circumstance tending to prove guilt,

which, when combined with other facts, may suffice to show the accused was a

participant.   See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.

1987).

      In this case, Parvin argues that he cannot bear responsibility for Vega’s

actions—even under the law of parties—because he went to Murphy’s house

only to talk about the missing money and that the confrontation escalated only

between Murphy and Vega after Murphy pulled a gun, angering Vega. However,

the record evidence reveals that Parvin drove the men to Murphy’s house for a

confrontation, encouraged Cunningham in his physical altercation with Murphy,

and after Cunningham left, stayed and followed Murphy to his backyard. The

evidence shows that Parvin was standing by his car when Vega kicked in

Murphy’s door, but evidence also exists that Parvin pointed a gun at Murphy,

fired shots at Murphy’s house, and handed the gun to Vega, who fired more

shots at Murphy’s house.

      A rational factfinder could determine from the evidence presented at trial

that without consent, Vega entered Murphy’s house in order to commit


                                       7
aggravated assault by kicking open his door.       See Tex. Penal Code Ann. §

30.02(a)(3); see also Martinez v. State, 304 S.W.3d 642, 660 (Tex. App.—

Amarillo 2010, pet. ref’d) (explaining that any breach of the “close” of the

residence constitutes entry into the residence). A rational factfinder also could

have determined that Parvin was acting to promote or assist in the burglary from

the evidence that he drove the group of men to Murphy’s house, encouraged

Cunningham’s fight with Murphy, pointed a gun at Murphy, shot at Murphy’s

house, and handed the gun to Vega. See Tex. Penal Code Ann. § 7.02(a)(2);

King, 29 S.W.3d at 564; see also Wilkerson v. State, 874 S.W.2d 127, 129–30

(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (holding that party who did not

enter into a burgled gas station demonstrated intent under the law of parties by

driving the getaway vehicle); Spencer v. State, 789 S.W.2d 397, 398–99 (Tex.

App.—Dallas 1990, pet. ref’d) (holding that defendant’s arranging of the stolen

billets and driving of the truck demonstrated participation in the crime). Although

Jessica’s and Murphy’s testimony about the series of events conflicts in some

regards, the jury possessed the authority to weigh conflicting facts. See Tex.

Code Crim. Proc. Ann. art. 38.04; Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). Resolving any inconsistencies in the light most favorable to

the verdict, as we must, we hold that sufficient evidence exists to support

Parvin’s conviction as a party to the offense of burglary with intent to commit

aggravated assault. See Tex. Penal Code Ann. § 7.02(b); Powell, 194 S.W.3d at

506. We overrule Parvin’s first issue.


                                         8
                 B. Aggravated Assault With a Deadly Weapon

      In his second issue, Parvin argues that there is insufficient evidence to

uphold his conviction for aggravated assault with a deadly weapon. A person

commits an offense by knowingly threatening another with imminent bodily injury

and using or exhibiting a deadly weapon during the commission of the assault.

Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2). The act of pointing a loaded

gun at an individual is, by itself, threatening conduct that supports a conviction for

aggravated assault.      Fagan v. State, 362 S.W.3d 796, 799 (Tex. App.—

Texarkana 2012, pet. ref’d). It is not necessary that the defendant make any

verbal threats. Cantu v. State, 953 S.W.2d 772, 775 (Tex. App.—Corpus Christi

1997, pet. ref’d).

      Here, Murphy testified that Parvin pointed the gun at him and that Murphy

feared for his life. Parvin contends on appeal that Murphy’s testimony lacked

credibility, but in our sufficiency review, we may not re-evaluate the weight and

credibility of the evidence. See Isassi, 330 S.W.3d at 638. We hold that, when

viewed in the light most favorable to the verdict, sufficient evidence exists for a

reasonable jury to find Parvin guilty of aggravated assault with a deadly weapon

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Winfrey, 393 S.W.3d at 768. We overrule Parvin’s second issue.

                 C. Deadly Conduct by Discharging a Firearm

      In his third issue, Parvin argues that there is insufficient evidence to uphold

his conviction for deadly conduct by discharging a firearm. A person commits an


                                          9
offense if he knowingly discharges a firearm at or in the direction of a habitation

and is reckless as to whether the habitation is occupied. Tex. Penal Code Ann. §

22.05(b)(2).

      Here, Jessica testified that she heard a gunshot and then saw Parvin give

the gun to Vega. Murphy testified that he saw Parvin pointing a gun at him,

turned around, and then heard gunshots. Murphy testified that one bullet hit the

top of his house and the other hit his house next to his door, about three or four

feet from the ground. Although neither Murphy nor Jessica saw Parvin discharge

the gun, a rational juror could have reasonably inferred that Parvin fired the gun

at Murphy’s house based on Murphy’s and Jessica’s testimony that they saw him

holding a gun just before or just after hearing the gunshots. See Sorrells, 343

S.W.3d at 155. Viewing the evidence in the light most favorable to the verdict,

we hold that sufficient evidence exists to support the jury’s finding that Parvin

committed the offense of deadly conduct by discharging a firearm. See Tex.

Penal Code Ann. § 22.05(b)(2). We overrule Parvin’s third issue.

                                 V. CONCLUSION

      Having overruled Parvin’s three issues, we affirm the trial court’s judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)



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DELIVERED: December 4, 2014




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