                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00026-CR

CRISPIN MANUEL SHELDON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                         From the 52nd District Court
                             Coryell County, Texas
                         Trial Court No. FAM-10-20572


                          MEMORANDUM OPINION


      In five issues, appellant, Crispin Manuel Sheldon, challenges his conviction for

aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL

CODE ANN. § 22.02(a)(2), (b) (West 2011). We affirm.

                                   I.    BACKGROUND

      In this case, appellant was charged by indictment with aggravated assault with a

deadly weapon, stemming from an altercation that occurred at a McDonald’s in

Copperas Cove, Texas, on or about September 25, 2010. Specifically, the indictment
alleged that appellant intentionally or knowingly threatened Manfred Joseph Zimmer

with imminent bodily injury by cocking a gun, pointing the gun at Zimmer, and

threatening to kill Zimmer. The facts surrounding the incident were hotly contested at

trial.

A.       The State’s Evidence

         Zimmer, an employee at the Copperas Cove post office, testified that he usually

likes to stop by McDonald’s in Copperas Cove on Saturday mornings before he goes to

work at 6:00 a.m. Zimmer recalled that, on the day in question, he went to McDonald’s,

purchased a sausage biscuit and hash brown, and picked up a newspaper. Zimmer

wanted to get the Bulldawg Express, which apparently is a free newspaper that

documents the Copperas Cove High School football team.            Recognizing that the

Bulldawg Express was not available, Zimmer picked up a Sentinel newspaper that was on

the counter and walked outside to his truck. Zimmer testified that he believed the

Sentinel newspaper to be free because there was no sign stating that the newspapers

could not “be taken out of the store.”

         After getting into his truck and backing out, Zimmer noticed that appellant had

left the McDonald’s and was advancing towards him. Zimmer noted that appellant was

waving and yelling. At the time, Zimmer had his window rolled up. He later rolled his

window down to speak with appellant. Zimmer alleged that after he rolled his window

down, appellant started cursing and asking where he “was going with the newspaper.”

Zimmer responded that it was none of appellant’s business. Apparently unhappy with

Zimmer’s response, appellant allegedly hit Zimmer “three or four times through my

Sheldon v. State                                                                  Page 2
window in my left face here.” Zimmer stated that he could not defend himself because

he was restrained by his seat belt.      Appellant then pointed a .45-caliber pistol at

Zimmer, slid the lock back, chambered a round, and told Zimmer that he was “going to

kill you son of a bitch.” At that point, Zimmer located his cell phone and called 911.

After observing Zimmer call 911, appellant re-holstered his gun and walked back inside

the McDonald’s.

        As a result of the altercation, Zimmer sustained cuts, bruises, and a significant

eye injury. Zimmer testified that he feared appellant was going to kill him. In addition,

Zimmer acknowledged that appellant asked him whether he was too cheap to purchase

the newspaper, to which Zimmer replied, “Yes.” Zimmer denied threatening to run

over appellant if he did not get out of the way.

        Shortly thereafter, the police arrived at the scene. Corporal Gabriel Cardona of

the Copperas Cove Police Department was among the officers who responded to the

scene. Corporal Cardona noted that he arrived at the McDonald’s at 5:46 a.m. and

noticed Zimmer’s red pickup truck “stopped in the parking lot just short of the entrance

on the west side.”       After stopping his vehicle, Corporal Cardona entered the

McDonald’s with his service weapon drawn.          Once he and other officers located

appellant, Corporal Cardona ordered appellant to stand up and show them his hands.

Appellant ignored Corporal Cardona’s instructions. Corporal Cardona repeated the

instructions multiple times, and appellant refused to cooperate. Corporal Cardona

continued to advance toward appellant until he was able to grab appellant’s arm and

get him to stand up so that he could be secured in handcuffs.

Sheldon v. State                                                                   Page 3
        After placing appellant in handcuffs, appellant informed officers that he had a

permit to carry a gun. Officers found appellant’s black Astra model A-100 .45-caliber

pistol concealed inside a waistband holster. Corporal Cardona seized the gun and

ejected the magazine. He found eight rounds in the magazine, but he did not find any

rounds contained in the chamber of the gun.                    Officers also found a blackjack on

appellant’s person.1

        Subsequently, appellant told Corporal Cardona that he had confronted Zimmer

in the parking lot because Zimmer had stolen a newspaper. Appellant then alleged that

Zimmer tried to run him over with his truck. Appellant did not assert that Zimmer

tried to “run over [appellant’s] toes, his feet[,] or any part of his body.” Moreover,

appellant did not claim that he was struck by the mirror of Zimmer’s truck.

        Felis Reyna, a patrol officer with the Copperas Cove Police Department, also

spoke with appellant about the incident.                Officer Reyna stated that appellant was

cooperative and gave voluntary statements.                    With regard to Zimmer’s injuries,

appellant told Officer Reyna that they were self-inflicted. According to Officer Reyna,

appellant “said he never struck [Zimmer] and nor did he ever pull a weapon out on

him.” When Corporal Cardona asked how Zimmer knew that appellant was carrying a

gun, appellant said “that it may have been revealed when he lifted his arms up.”

Appellant also told police that Zimmer tried to run him over first. Officer Reyna then

informed appellant that they were seeking surveillance video from security cameras at


        1   According to Corporal Cardona, a blackjack is an extendable baton that is unlawful for a person
to carry.


Sheldon v. State                                                                                    Page 4
McDonald’s. Officer Reyna noticed that appellant’s demeanor changed when presented

with this information.       According to Officer Reyna, appellant became tense and

“postured up on me.” Officer Reyna later noted that appellant was “more direct, kind

of in your face type attitude” when finding out about the surveillance video.2 Officer

Reyna told appellant that he did not believe that appellant was “being completely

honest about the entire incident.” Appellant responded that he will “worry about that

when the time comes.” Shortly thereafter, appellant declined to speak further with

police.

          Officers later discovered that when appellant returned to the McDonald’s after

the altercation with Zimmer, appellant went directly to the restroom.                  Appellant

admitted at trial that he had chambered a round in the pistol and that he went to the

restroom to unload the pistol “[b]ecause of the danger with weapons.”

          Officers also spoke with Zimmer about the altercation.              Several witnesses

recounted that Zimmer appeared to be in shock about the incident. Corporal Cardona

noted that Zimmer “had an abrasion on the left side of his lip, on the upper lip and

another abrasion on the back of his right hand.” According to Corporal Cardona,

Zimmer’s abrasions appeared to be fresh.              Officers also spoke with McDonald’s

employees, who indicated that they wanted the newspaper back. The newspaper was

eventually returned. No one from McDonald’s ever contacted the Copperas Cove

Police Department to press charges against Zimmer.



          Jason Schaefer, a patrol officer with the Copperas Cove Police Department, indicated that
          2

appellant had an agitated demeanor when speaking with police about the incident.

Sheldon v. State                                                                            Page 5
        Dr. Janine Aman, a therapeutic optometrist, testified about the injury Zimmer

sustained to his eye. According to Dr. Aman, some of the vitreous strands attached to

the retina of Zimmer’s left eye became detached due to being struck in the head several

times. As a result, the strands floated around Zimmer’s eye and blocked his vision. Dr.

Aman noted that this impairment will never go away, but it is possible that the strands

will float down to the bottom of Zimmer’s eye and no longer impair his vision.

        Jennifer Donnelly, a manager in training at the McDonald’s, testified that she

was working the day of the incident.        In her testimony, Donnelly recounted that

appellant was a regular and that when he noticed Zimmer take the newspaper, he told

Donnelly “that’s not right. You’re not supposed to be stealing from here. That’s

property of McDonald’s.” Donnelly denied asking appellant to go outside to retrieve

the newspaper. She also denied seeing much of the altercation, but she did think that

Zimmer’s truck may have “lunged forward a little bit” while appellant was near the

window of Zimmer’s truck. Donnelly also stated that she overheard appellant when he

returned and proceeded to the restroom. She recalled appellant stating, “mother fucker

stealing from the store ain’t right and people shouldn’t be stealing things.” Donnelly

thought appellant “looked a little agitated.”

        Keith Casab Sr., an area supervisor for all of the McDonald’s in the

Killeen/Copperas Cove area, testified that he has observed people take a copy of the

Killeen Daily Herald or the Temple Daily Telegram and walk out with it. In fact, Casab

noted that it happens on a daily basis and that he had never called the police or filed

charges for taking a newspaper. He also stated that he has never asked anyone to

Sheldon v. State                                                                 Page 6
watch over newspapers at the restaurant. McDonald’s employees also testified that the

newspapers are thrown away at the end of the day.

B.      Appellant’s Evidence

        Appellant testified on his own behalf. At the time of trial, appellant was sixty-

five years old. Appellant noted that he served in the army for twenty-four years, which

included a tour in Vietnam. In addition, appellant worked several years as a corrections

officer at several Texas prisons. In any event, appellant acknowledged that he receives

disability from the military because he has been diagnosed with post-traumatic-stress

disorder.

        In response to subsequent questioning, appellant stated that he frequently goes

to McDonald’s in Copperas Cove. Appellant recalled that on the day in question, he

“saw the gentleman come in there and buy something out of . . . the McDonald’s. And

then he walked around and got a newspaper, stuck it under his arm and then he went

and got a drink, you know, and then he went outside.”3 Upon seeing this, appellant,

        Went outside and I went to confront the individual. And at the time when
        I went outside, he was close to his vehicle, and I asked him, are you that
        cheap that you have to steal a 50 cent newspaper. That’s what I asked the
        gentleman outside. And he said, yes.

                   ....

               Well, you know, I was on the road there and, you know, he pulled
        out of the drive—out of the parking lot and was coming my way and I
        was still on the road. And before that, he told me, if you don’t get the F
        out of the way, I’m going to run you over.


        3 During cross-examination, appellant contended that the newspaper was inside plastic; however,
McDonald’s employees refuted this contention by stating that they had already taken the newspaper out
of the plastic and placed it on the counter when Zimmer took it.

Sheldon v. State                                                                                Page 7
                   ....

               Well, I was still in the road there. He ran over with the tire of his
        vehicle the tip of my shoes. And that really got me agitated when he ran
        over my shoes, the tip of my shoes. And I told him, you need to turn that
        vehicle off. He refused. I stick [sic] my hand in there trying to turn the
        vehicle off. He pushed me or hit me. I can’t remember. But then I turned
        right around and I hit him twice with my open hand.

Appellant alleged that Zimmer responded by hitting him in the chest, knocking his

glasses to the ground. Appellant then testified that:

        I reached over and got the glasses, put them in my pocket, inside my shirt
        pocket. I took out my .45. I chambered a round. I asked him, are you
        going to run me over now because he had stated before he was going to
        run me over. So when he started yelling oh, my [G]od, he has a gun, I’m
        going to call 9-1-1, I holstered my pistol. I put it in my holster again, and I
        went inside. I knew the person was no threat to me. I went inside and
        waited for the police to come because he said he was going to call 9-1-1.

Appellant stated that he could not remember telling officers that Zimmer’s injuries were

self-inflicted, but he did admit at trial that he had hit Zimmer during the altercation.

        Later, appellant asserted that he had the right to reclaim the newspaper on the

behalf of McDonald’s. In particular, appellant noted the following:

        [Appellant]:         As a citizen of the United States[,] I have the right to
                             protect anybody’s property, sir.

        Q:                   You know this how?

        [Appellant]:         The Constitution of the United States gives me that
                             right, sir.

        Q:                   Constitution of the United States gives you the right
                             to protect—

        [Appellant]:         Yes, sir.

        Q:                   —property?

Sheldon v. State                                                                          Page 8
        [Appellant]:        And the Bill of Rights too.

                   ....

        [Appellant]:        I served in the armed forces of the United States for 24
                            years to protect the Constitution, sir.

        Q:                  What part of the Constitution gives you the right to
                            protect the McDonald’s property?

        [Appellant]:        I’m not a legal scholar of the Constitution, sir. I
                            respect the Constitution. That’s all I’m going to say.

        Appellant also acknowledged that he and Zimmer were in the road when

Zimmer allegedly ran over the tips of appellant’s shoes. Nevertheless, appellant denied

initiating any physical contact with Zimmer, though he admitted initiating verbal

contact. Appellant also admitted that he did not tell police at the scene of the incident

that Zimmer had run over the tips of his shoes. Thereafter, when pressed for additional

details about the incident, appellant stated: “When you get to my age, sir, you forget a

lot of things.” When asked why he pulled a gun on Zimmer, appellant responded: “I

pulled a weapon to show that I had deadly force[,] and I was prepared to use it.”

Appellant denied doing anything wrong and blamed the entire incident on Zimmer.

        At the conclusion of the evidence, the jury found appellant guilty of the charged

offense. In addition, the jury also determined that appellant used a deadly weapon, a

firearm, in the commission of this offense.       With regard to punishment, the jury

recommended a five-year sentence for appellant with an $8,000 fine to be probated. The

trial court accepted the jury’s five-year sentence and $8,000 fine, suspended the




Sheldon v. State                                                                       Page 9
sentence, and placed appellant on probation for a period of eight years.4 This appeal

followed.

                              II.     PURPORTED JURY-CHARGE ERROR

        In his fourth and fifth issues, appellant complains about the jury charge. In

particular, appellant argues that he suffered egregious harm as a result of the trial court

submitting a “provoking the difficulty” charge in conjunction with instruction on self-

defense and the protection of a third-person’s property.

A.      Standard of Review

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).




        4 Among the conditions of appellant’s probation are a prohibition from possessing or owning a
firearm, illegal knife, club, or other prohibited weapons and a requirement that appellant enroll in an
anger-management program.

Sheldon v. State                                                                               Page 10
        Appellant admits that he did not object to the jury charge; thus he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

of the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B.      Applicable Law

        Generally, “a person is justified in using force against another when and to the

degree the actor reasonably believes the force is immediately necessary to protect the

actor against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE

ANN. § 9.31(a) (West 2011). The doctrine of provocation, also known as “provoking the

difficulty,” is a limitation on the right of self-defense. See Smith v. State, 965 S.W.2d 509,

512 (Tex. Crim. App. 1998). “If not called for by the facts, a charge on provoking the

difficulty constitutes an unwarranted limitation on the right of self-defense.” Reeves v.

State, No. PD-1711-12, 2013 Tex. Crim. App. LEXIS 1317, at *17 (Tex. Crim. App. Sept.

18, 2013) (citing Tave v. State, 620 S.W.2d 604, 605 (Tex. Crim. App. 1981)). The use of

force is not justified if the actor “provoked the other’s use or attempted use of unlawful

force,” unless (1) the actor abandons the encounter “or clearly communicates to the

other his intent to do so reasonably believing he cannot safely abandon the encounter,”



Sheldon v. State                                                                       Page 11
and (2) the other person “nevertheless continues or attempts to use unlawful force

against the actor.” TEX. PENAL CODE ANN. § 9.31(b).

          The doctrine of provocation requires an element of intent that is not explicit in

the penal code. See Mendoza v. State, 349 S.W.3d 273, 279 (Tex. App.—Dallas 2011, pet.

ref’d).

          A charge on provocation is required when there is sufficient evidence (1)
          that the defendant did some act or used some words which provoked the
          attack on him, (2) that such act or words were reasonably calculated to
          provoke the attack, and (3) that the act was done or the words were used
          for the purpose and with the intent that the defendant would have a
          pretext for inflicting harm upon the other.

Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998). A provocation instruction

should be submitted to the jury only “when there is evidence from which a rational jury

could find every element of provocation beyond a reasonable doubt.” Id. at 514. “A

defendant may have a desire that the victim will attack him, or he may seek the victim

with the intent to provoke a difficulty, but the defendant must go further and do or say

something which actually provokes the attack before he will lose his right to self-

defense.” Id. The elements of provocation are fact questions for the jury. Id. at 514-18;

Thomas v. State, 750 S.W.2d 324, 325 (Tex. App.—Dallas 1988, pet. ref’d). On appeal, our

inquiry is whether, in the light most favorable to giving the instruction, there was

sufficient evidence with which a jury could have found provocation beyond a

reasonable doubt. Smith, 956 S.W.2d at 514; Thomas, 750 S.W.2d at 325.

C.        Discussion




Sheldon v. State                                                                      Page 12
        Here, the jury charge contained instructions for both self-defense and protection

of a third person’s property. The jury charge also provided the following “provoking

the difficulty” instruction:

               You are further instructed as part of the law of this case, and as
        qualification on the law of self-defense, that, if you find and believe from
        the evidence, beyond a reasonable doubt, that the defendant, CRISPIN
        MANUEL SHELDON, immediately before the difficulty then and there
        did some act, or used some language, or did both, if any, with the intent to
        produce the occasion to bring on the difficulty and commit aggravated
        assault with a deadly weapon against Manfred Joseph Zimmer, and that
        such conduct on defendant’s part, if there was such, was reasonably
        calculated to, and did, provoke a difficulty, and that on such account the
        said Manfred Joseph Zimmer attacked defendant, or reasonably appeared
        to defendant to attack him, or to be about to attack him, and that the
        defendant then committed aggravated assault with a deadly weapon
        against Manfred Joseph Zimmer in pursuance of his original design, if you
        find there was such; or if the defendant provoked the difficulty that
        resulted in the aggravated assault with a deadly weapon against, Manfred
        Joseph Zimmer, and by his own wrongful act, if any, produced a necessity
        for committing aggravated assault with a deadly weapon and you so find
        beyond a reasonable doubt, you will find against the defendant’s claim of
        self-defense.

It is this instruction that appellant complains about in his fourth and fifth issues.

Specifically, appellant argues that the evidence does not support the inclusion of this

instruction in regard to his allegations of self-defense and protection of a third person’s

property. We disagree.

        The record reflects that Zimmer took a newspaper from McDonald’s, assuming

that it was free. Appellant observed this and told Zimmer that he could not take the

newspaper as Zimmer left the restaurant. As Zimmer entered his truck, appellant

exited the McDonald’s waving and yelling. Appellant admitted that he went outside to

confront Zimmer about taking the newspaper.           At this point, the stories diverge.

Sheldon v. State                                                                       Page 13
Zimmer testified that appellant began hitting him while he sat inside his truck and

eventually pointed a gun at him and said “I am going to kill you son of a bitch.” As a

result of the altercation, Zimmer sustained abrasions, bruises, and a significant eye

injury. Appellant asserted that Zimmer was the initial aggressor because he allegedly

threatened to run appellant over with his truck. Appellant also asserted that Zimmer

hit him when he tried to reach inside to turn off Zimmer’s truck. Though he did not tell

police, appellant alleged at trial that Zimmer ran over the tips of his shoes with his

truck. Appellant stated that he pointed his gun at Zimmer and threatened to use

deadly force only after Zimmer ran over the tips of his shoes.

        Viewing the evidence in the light most favorable to giving the instruction, a

rational jury could find every element of provocation beyond a reasonable doubt. See

Smith, 965 S.W.2d at 513; see also Thomas, 750 S.W.2d at 325. Merely because appellant

and Zimmer disagree about what transpired that morning does not mean that the

evidence is insufficient to support the inclusion of the “provoking the difficulty”

instruction in the jury charge. Accordingly, because the evidence sufficiently supports

the instruction, we cannot say that the trial court erred in including the “provoking the

difficulty” instruction. See Smith, 965 S.W.2d at 513; see also TEX. CODE CRIM. PROC. ANN.

art. 36.14 (West 2007) (providing that the trial court shall instruct the jury on the “law

applicable to the case”).

        Furthermore, we believe that any possible error associated with the inclusion of

the “provoking the difficulty” instruction in the jury charge was mitigated by the

inclusion of the following instruction:

Sheldon v. State                                                                   Page 14
        On the other hand, if you find that the acts done, or language used by
        defendant, if any, were not under the circumstances reasonably calculated
        or intended to provoke a difficulty, or an attack by Manfred Joseph
        Zimmer upon defendant, or if you have a reasonable doubt thereof, then
        in such event defendant’s right of self-defense would in no way be
        lessened, and in that event you will decide the issue of self-defense in
        accordance with the law on that subject as stated above.

As is required by law, the language of the jury charge left it to the jury to determine the

issues of self-defense, protection of a third person’s property, and provocation, and,

after weighing the evidence, the jury ultimately rejected appellant’s assertions of self-

defense and protection of a third person’s property and found him guilty of the charged

offense. See Smith, 965 S.W.2d at 514-18; see also Thomas, 750 S.W.2d at 325. As such, we

cannot conclude that the “provoking the difficulty” language contained in the jury

charge deprived appellant of a valuable right, vitally affected his defensive theories, or

affected the very basis of his case. See Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at

121. In other words, given the state of the record, we cannot say that appellant was

egregiously harmed by the inclusion of the “provoking the difficulty” instruction in the

jury charge. See Smith, 965 S.W.2d at 514; see also Olivas, 202 S.W.3d at 144; Almanza, 686

S.W.2d at 171. Accordingly, we overrule appellant’s fourth and fifth issues.

                            III.    SUFFICIENCY OF THE EVIDENCE

        In his first three issues, appellant challenges the sufficiency of the evidence.

Specifically, in his first issue, appellant argues that the evidence is insufficient to prove

the indictment allegation that appellant assaulted Zimmer while cocking a gun. In his

second and third issues, appellant contends that the evidence is insufficient to disprove

the justifications of self-defense and protection of a third person’s property.

Sheldon v. State                                                                      Page 15
A.      Standard of Review

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        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, 99 S. Ct. 2781, 61 L. Ed. 2d 560
        (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.

Id.

        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 2793.      Furthermore, 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, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to




Sheldon v. State                                                                        Page 16
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).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

        Here, the State was required to prove beyond a reasonable doubt that appellant

committed assault, as defined in section 22.01 of the Texas Penal Code, and used or

exhibited a deadly weapon during the commission of the assault. See TEX PENAL CODE

ANN. § 22.02(a)(2). Section 22.01(a) provides that a person commits assault if he: (1)

intentionally, knowingly, or recklessly caused bodily injury to another; (2) intentionally

or knowingly threatened another with imminent bodily injury; or (3) intentionally or

knowingly caused physical contact with another when the person knows or should

reasonably believe that the other will regard the contact as offensive or provocative. Id.

§ 22.01(a) (West Supp. 2013).

B.      The Indictment Allegations

        In his first issue, appellant alleges that the evidence is insufficient to prove that

he assaulted Zimmer while cocking a gun. In particular, appellant argues that the State

presented no evidence concerning the type, properties, mechanisms, or cocking

Sheldon v. State                                                                      Page 17
functions of the gun seized from appellant and used during the altercation. According

to appellant, “[n]o expert or lay testimony was presented showing the chambering of a

round in the gun was the same as or the equivalent of a cocking of the gun. Absent

evidence of cocking a gun, the State failed to prove that which it alleged . . . .”

        In the present case, the operative language of the indictment provides as follows:

        Defendant, on or about the 25th day of September, 2010, and before the
        presentment of this indictment, in the County and State aforesaid, did
        then and there intentionally or knowingly threaten Manfred Joseph
        Zimmer, with imminent bodily injury by cocking a gun, pointing it at
        Manfred Joseph Zimmer and threatening to kill Manfred Joseph Zimmer,
        and did then and there use or exhibit a deadly weapon, to-wit: a gun,
        during the commission of said assault.

               And it is further presented in and to said Court that a deadly
        weapon, to-wit: a gun, was used or exhibited during the commission of
        the aforesaid offense or during immediate flight following the commission
        of the aforesaid offense, and that the defendant used or exhibited said
        deadly weapon or was a party to the aforesaid offense and knew that a
        deadly weapon would be used or exhibited.

        Based on our reading of the indictment and the evidence presented, we believe

the language pertaining to the cocking of the gun to be immaterial. The Texas Court of

Criminal Appeals has stated that “a variance regarding a non-statutory allegation

describing the method of the offense of a result-of-conduct offense is immaterial.”

Ramos v. State, No. PD-1917-11, 407 S.W.3d 265, 2013 Tex. Crim. App. LEXIS 952, at *11

(Tex. Crim. App. June 26, 2013). Moreover, the Court has also stated that aggravated

assault “is a result-of-conduct crime with the focus or gravamen being on the victim

and the bodily injury that was inflicted.” Johnson v. State, 364 S.W.3d 292, 298 (Tex.

Crim. App. 2012). In this case, appellant was charged under section 22.02 of the Texas


Sheldon v. State                                                                      Page 18
Penal Code, which also references section 22.01. See TEX. PENAL CODE ANN. §§ 22.01,

22.02. When reviewing those two statutory provisions, we find that the cocking of the

gun is not an element of the underlying offense. See id. at *10 (“[T]he pleading of

unnecessary facts gives rise to an immaterial variance.”) (citing Gollihar v. State, 46

S.W.3d 243, 257 (Tex. Crim. App. 2001)); see also TEX. PENAL CODE ANN. §§ 22.01, 22.02.

Accordingly, the allegation regarding the cocking of the gun merely amounts to a non-

statutory allegation that is immaterial.

        And while the cocking of the gun could arguably constitute an assault in this

context, we also note that the indictment alleged that appellant pointed the gun at

Zimmer. This would also constitute an assault within the context of section 22.01 of the

Texas Penal Code. See TEX. PENAL CODE ANN. §§ 22.01; see also Anderson v. State, 11

S.W.3d 369, 375-76 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“Aiming a deadly

weapon at a supposed victim is sufficient evidence of a threat to sustain an aggravated

assault conviction.”) (citing Rodriguez v. State, 955 S.W.2d 171, 174 (Tex. App.—Amarillo

1997, no pet.)).5 Moreover, the record contains ample testimony, including appellant’s

own admission, indicating that appellant pointed a gun at Zimmer during the

altercation. Therefore, we conclude that the language pertaining to the cocking of the




        5  Section 1.07(a)(17)(A) provides that a “[d]eadly weapon” means “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” TEX.
PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2013). If the State alleges and proves that a weapon falls
within this category, “it is not necessary to verify that the object was really capable of causing death.”
Adame v. State, 69 S.W.3d 581, 583 (Tex. Crim. App. 2002) (Meyers, J., concurring) (citing Thomas v. State,
821 S.W.2d 616, 620 (Tex. Crim. App. 1991)); see Wright v. State, 582 S.W.2d 845, 847 (Tex. Crim. App.
1979); Grant v. State, 33 S.W.3d 875, 881 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (noting that
there is no requirement that a firearm be loaded to support a deadly-weapon finding).

Sheldon v. State                                                                                   Page 19
gun is immaterial. And as such, we reject appellant’s sufficiency argument regarding

the cocking-of-the-gun language. We overrule appellant’s first issue.

C.      Self-Defense and Protection of a Third Person’s Property

        In his second and third issues, appellant argues that the evidence is insufficient

to disprove his justifications of self-defense and protection of a third person’s property.

We disagree.

        The State bears a burden of persuasion, but not a burden of production in

disproving evidence of self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim.

App. 1991). That is, the State need not produce evidence rebutting a self-defense claim;

it must only prove its case beyond a reasonable doubt. Id. In resolving a sufficiency-of-

the-evidence issue, we look not to whether the State presented evidence which rebutted

a defendant’s self-defense testimony, but rather we determine whether viewing all the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense, in this case aggravated assault with a

deadly weapon, beyond a reasonable doubt and also could have found against

appellant on the self-defense issue beyond a reasonable doubt. See id. at 914. A jury

verdict of guilty is an implicit finding rejecting a defendant’s self-defense claim. Id.

        On the other hand, section 9.43 of the Texas Penal Code provides the following

with respect to the protection of a third person’s property:

                A person is justified in using force or deadly force against another
        to protect land or tangible, movable property of a third person if, under
        the circumstances as he reasonably believes them to be, the actor would be
        justified under Section 9.41 or 9.42 in using force or deadly force to protect
        his own land or property and:

Sheldon v. State                                                                         Page 20
            (1) the actor reasonably believes the unlawful interference constitutes
                attempts or consummated theft of or criminal mischief to the
                tangible, movable property; or

            (2) the actor reasonably believes that:

                    (A) the third person has requested his protection of the land or
                        property;

                    (B) he has a legal duty to protect the third person’s land or
                        property; or

                    (C) the third person whose land or property he uses force or
                        deadly force to protect is the actor’s spouse, parent, or child,
                        resides with the actor, or is under the actor’s care.

TEX. PENAL CODE ANN. § 9.43 (West 2011).

        Here, appellant testified that Zimmer stole a newspaper from McDonald’s and

that he went outside to confront Zimmer about the purported theft.6 Zimmer noted that

he saw appellant exit the McDonald’s waving and screaming at him.                             Zimmer

recounted that appellant cursed at him, hit him several times causing a significant eye

injury, and pointed a gun at him while saying that he was going to kill him. Appellant

disputed Zimmer’s recollection of the incident. Appellant stated that Zimmer hit him

first, threatened to run him over, and ultimately ran over the tips of his shoes.

According to appellant, it was because of Zimmer’s actions that he pointed his gun at

Zimmer. None of the surveillance cameras caught the altercation between appellant

and Zimmer, nor did anyone else testify that they saw the entire altercation.



        6 Zimmer admitted taking the newspaper, but he believed it was a free newspaper that
McDonald’s offers to its customers. In addition, none of the testifying McDonald’s employees stated that
they asked appellant to retrieve the newspaper from Zimmer.

Sheldon v. State                                                                                Page 21
Essentially, the jury was left to decide which witness was more credible—appellant or

Zimmer.

        As noted above, it is within the province of the jury to resolve conflicts in the

evidence, and we are to defer to the jury’s resolution of such conflicts. See Jackson, 443

U.S. at 329, 99 S. Ct. at 2792-93; see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim.

App. 2008); Chambers, 805 S.W.3d at 461; Render v. State, 316 S.W.3d 846, 859 (Tex.

App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s

decision regarding what weight to give contradictory testimonial evidence because the

decision is most likely based on an evaluation of credibility and demeanor, which the

jury is in a better position to judge.”). Moreover, the jury is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. See Chambers, 805 S.W.2d at 461. With its guilty verdict, the

jury clearly believed Zimmer’s version of the facts that appellant was the first aggressor

and rejected appellant’s theories of self-defense and protection of a third person’s

property. And based on the foregoing case law, we are to defer to the jury’s resolution

of the facts. See Jackson, 443 U.S. at 329, 99 S. Ct. 2792-93; see also Lancon, 253 S.W.3d at

706; Chambers, 805 S.W.2d at 461; Render, 316 S.W.3d at 859.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt and also could have found against appellant on his claims of self-

defense and protection of a third person’s property beyond a reasonable doubt. See

TEX. PENAL CODE ANN. §§ 22.01, 22.02; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at

Sheldon v. State                                                                      Page 22
2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Thus, we conclude that the

evidence supporting appellant’s conviction is sufficient. See Jackson, 443 U.S. at 318-19,

99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We overrule

appellant’s second and third issues.

                                       IV.   CONCLUSION

         Having overruled all of appellant’s issues, 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 December 5, 2013
Do not publish
[CR25]




Sheldon v. State                                                                   Page 23
