AFFIRM; and Opinion Filed June 3, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-00959-CR

                        JAMAL DESHUN APPLEWHITE, Appellant
                                                V.
                              THE STATE OF TEXAS, Appellee


                        On Appeal from Criminal District Court No. 7
                                   Dallas County, Texas
                            Trial Court Cause No. F11-00048-Y

                             MEMORANDUM OPINION
                       Before Justices Lang-Miers, Murphy, and Fillmore
                                   Opinion by Justice Murphy

       Jamal Deshun Applewhite appeals his conviction for aggravated assault with a deadly

weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011). Appellant raises

three issues challenging the legal sufficiency of the evidence and contending the trial court erred

by allowing a jury to assume guilt in a second punishment trial following a mistrial. We affirm.

                                        BACKGROUND

       Appellant pleaded not guilty to the charge of aggravated assault with a deadly weapon, a

BB gun. The jury found appellant guilty, but could not reach a verdict on punishment. The trial

court declared a mistrial and conducted a new trial on punishment only. A second jury assumed

guilt, found an enhancement paragraph true, and assessed punishment at fifteen years in prison.
                                         DISCUSSION

                        Issue One: Legal Sufficiency of the Evidence

       Appellant first challenges the sufficiency of the evidence to support the conviction for

aggravated assault with a deadly weapon. Specifically, he contends the evidence shows only the

offense of criminal mischief. He argues there was no testimony a BB gun was manifestly

designed to inflict death or serious bodily injury, so the State relied on the manner of the gun’s

use or intended use as capable of causing death or serious bodily injury.          He states the

complainant’s fear was irrelevant; the question was whether the threat was made with the intent

to place the complainant in fear of imminent bodily injury. Appellant asserts the evidence shows

only appellant’s intent to damage the complainant’s truck.

       We review appellant’s legal sufficiency challenge by considering all of the evidence in

the light most favorable to the verdict; based on that evidence and reasonable inferences, we

must determine whether a rational fact finder could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Merritt v.

State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Under this standard, the fact finder has full

responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We presume

the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that

determination. Id. at 326. Based on this standard, we do not reassess witness credibility. Id. at

319.

       To obtain a conviction against appellant as charged, the State was required to prove

beyond a reasonable doubt that appellant intentionally or knowingly threatened the complainant

with imminent bodily injury while using or exhibiting a deadly weapon, a BB gun. See TEX.

PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2). A deadly weapon is “anything that in the manner

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of its use or intended use is capable of causing death or serious bodily injury.”         Id. §

1.07(a)(17)(B) (West Supp. 2012).

        The State presented five witnesses.        Its first witness was Kristopher Barnes, the

complainant. Barnes testified that around 7:00 p.m. on April 26, 2010, he was driving home

from school, traveling southbound in the far left lane of Highway 635 in Mesquite, Texas. He

described traffic as not “bumper-to-bumper” but congested. He was traveling around fifty-five

miles per hour, and it was still light outside.

        As Barnes was nearing the Oates exit, he noticed a yellow Crown Victoria swerve into

his lane and cut him off. He slammed on his brakes to avoid hitting the vehicle. He also honked

his horn, at which point the driver pulled “over in the lane beside [Barnes] and slowed down and

pulled a gun and shot into the side of [his] truck.” Barnes said both cars were traveling around

fifty-five miles per hour at the time.

        Barnes described the car as a bright yellow Crown Victoria with “push bumpers” and

dealer’s plates. All he saw when he looked over was a man driving the car with a gun in his

hand; Barnes testified the man was pointing the gun in his direction. Barnes said he was

“panicked” and thought the man was going to shoot him. He knew the shots hit the side of his

truck because the noise was loud. He heard a thud and a noise like metal being hit. He slowed

down immediately and pulled behind the Crown Victoria.

        While behind the Crown Victoria, Barnes called 911 and gave the 911 dispatcher

information about the car.      Barnes then exited and, pursuant to instructions from the 911

dispatcher, met Mesquite Police Officer George Wayne Hensley nearby. Barnes described the

events to Hensley, who also took photographs of Barnes’s truck. The photographs were admitted

as evidence. Using the photographs, Barnes showed the jury the indentations on his vehicle that

resulted from the shots.

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       On cross-examination, Barnes agreed the window in his vehicle was not “busted” and

nothing came into his truck. The three impact marks were near the back of Barnes’s vehicle by

the right rear wheel. He did not recall the placement of the shooter’s hands on the gun.

       Hensley testified next. He described the dispatch he received on April 26 regarding the

shooting on Highway 635. The dispatch was a “10-18,” which is a shooting in progress,

involving a yellow “Crown Vic or a police-style car” that had pulled up beside a man and shot

the vehicle. After Hensley obtained a description from Barnes, he relayed the information to

officers, who found a vehicle matching the description. Barnes showed Hensley the dents in his

vehicle. Hensley testified that at that point, Barnes believed he had been shot at with a pistol.

Because of the small dents, Hensley thought it was a very small pistol or a BB gun that caused

the damage. Hensley had Barnes follow him to the Mesquite Police Department where he took

pictures of the vehicle. Hensley described the dents as marble-sized and deep “enough to dent

the metal to remove the paint and make [Hensley] believe that, you know, possibly that [Barnes]

was thinking that his vehicle was getting hit by an actual, you know, pistol bullet.”

       On cross-examination, Hensley agreed to the description of the dents as “pea-size” and

that they were not caused by a firearm. He testified it appeared someone wanted to inflict

damage or pain on someone else and described it as “criminal mischief.” He said a BB gun can

be used as a deadly weapon.

       Officer Matthew McCloud with the Mesquite Police Department testified that he was on

patrol when he received a call of possible shots fired on Highway 635, with the vehicle exiting

Town East Boulevard. Less than three minutes after receiving the dispatch, he noticed the

vehicle entering a drive-thru. He and another officer conducted a “felony stop”; the officers

“came out at gunpoint and pulled each person out of the car one by one.” They patted down the

two occupants. The driver was male, and the passenger was female.

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       After clearing the vehicle, the officers conducted a protective sweep of the car, during

which they discovered two guns. McCloud testified the guns looked like “real guns,” but once

the officers “physically manipulated” them, they realized they were BB guns.             McCloud

described one of the guns as “CO2 powered,” which means it has a CO2 cartridge inside the

handle of the pistol and is more powerful than a pressurized BB gun. He did not know if the

other gun was the same.

       Mesquite Police Officer Jerry Allen Walzel testified he also received a dispatch on April

26. He arrived at the scene and waited for instructions from McCloud. Walzel identified the

driver of the vehicle as appellant. After McCloud pulled appellant from the car and handcuffed

him, Walzel walked around the car and observed two weapons in plain view. One weapon was

in the backseat, and one was in the backseat pocket of the passenger side. Both guns were

admitted as exhibits.

       Walzel described one gun as a “Marksman BB gun” and demonstrated for the jury how to

load the gun. Walzel also referenced a safety on the gun and a globe site that tracks light and is

used on “most military weaponry, law enforcement weaponry, [and] any hunter’s weaponry.”

Walzel said the second gun is loaded “like a real handgun.” He said the gun was a military grade

“Witness 1911 BB gun.” He noted the gun had “all the same structure and everything as a real

gun,” including a “silver piece on the injector slide that makes it look like even more realistic.”

He said it “[l]ooks like a real gun,” and if he were confronted with that weapon, he would have

to use deadly force.

       Walzel also addressed the circumstances of two cars traveling at a normal rate of speed

on a highway and one being fired at by a BB gun. He described the situation as posing a “deadly

experience.” Walzel testified, based on his experience, that BB guns can be deadly weapons and

cause serious bodily injury. Based on the facts presented in this case and what he had learned

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through his investigation, Walzel opined a BB gun could be a deadly weapon in the manner used

by appellant. On cross-examination, he agreed he did not know exactly what happened and

could not say appellant was the shooter.

        The State’s final witness was appellant’s former girlfriend, Yitora Wilson, who was with

appellant in her father’s yellow Crown Victoria on the day of the shooting. She said appellant

was driving and she was reclined in her seat. She “got up” when she heard a horn blowing, and

they exited the highway. She testified that the next thing she knew, they got pulled over. She

did not know why they were being stopped until the officers separated them and referenced the

guns.

        Wilson identified the two guns admitted as exhibits as the gun appellant had and the other

as one Wilson was “using.” She said they had taken the guns to the park where appellant was

trying to show her how to shoot. She described appellant’s gun as shooting “just like a regular

gun,” stating “you just pull the trigger,” and “it shoots pretty far and it has force.” She said the

other gun was hers and that it did not shoot far or have much force.

        Wilson testified she and appellant were driving with the windows down on April 26 and

stated she would not have heard appellant fire his gun. She denied firing a gun into Barnes’s

truck and did not see appellant with a gun in his hand. No one else was in the car with them.

Wilson testified that when she heard the horn, she saw that appellant was “looking like he was

mad” and “flipped the dude off.”

        The State rested after this testimony. Appellant did not testify and did not call any

witnesses.

        The evidence shows appellant pointed the gun at Barnes while traveling at approximately

fifty-five miles per hour on a crowded highway. Appellant was mad and exhibited angry

behavior. Barnes testified appellant fired a gun in his direction and the shots hit the car in

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several locations. Both of the guns found in appellant’s vehicle looked “real” to the police

officers who examined the weapons. The jury also heard testimony that the BB gun identified as

appellant’s gun was capable of force. Walzel specifically testified he would have had to use

deadly force if he had been fired at with one of the guns.            Walzel also addressed the

circumstance presented as posing a “deadly experience.” He testified BB guns can be deadly

weapons and can cause serious bodily injury.

       Appellant argues that because Barnes did not “unequivocally say the gun was ever

trained on him,” all the evidence shows is the offense of criminal mischief. But it is not

necessary that the complainant be placed in fear of imminent bodily injury; it is the appellant’s

threat, made with the intent to place the complainant in fear of bodily injury that constitutes the

offense. Trevino v. State, 752 S.W.2d 735, 736–37 (Tex. App.—Eastland), pet. dism’d, 759

S.W.2d 142 (Tex. Crim. App. 1988). Such intent can be established through acts, words, and

conduct. Id. at 737. Barnes testified that when he honked his horn and slammed on his brakes to

avoid hitting appellant’s vehicle, appellant slowed down, got into the lane beside Barnes, and

pointed a gun in Barnes’s direction. Based on appellant’s conduct, Barnes thought appellant was

going to shoot him with what he thought was a pistol.

       Considering all of the evidence in the light most favorable to the verdict, including

reasonable inferences, we conclude a rational fact finder could have found appellant intentionally

or knowingly threatened Barnes with imminent bodily injury while using or exhibiting a deadly

weapon.    Jackson, 443 U.S. at 318-19; see also TEX. PENAL CODE ANN. §§ 22.01(a)(2),

22.02(a)(2). We overrule appellant’s first issue.

          Issues Two and Three: Assumption of Guilt for Second Punishment Trial

       We address appellant’s second and third issues together. He argues in his second issue

the charge to the second jury contained egregious error because it assumed appellant had been
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found guilty. In his third issue, he contends the trial court’s mistrial included the guilty verdict

and it was fundamental error for the second jury to assess punishment in the absence of a finding

of guilt.

        After the first jury was unable to agree on punishment, the trial court declared a mistrial.

Appellant argues the mistrial was without any limitations. The State responds the trial court’s

authority to act was limited to those situations authorized by the constitution, statute, or common

law. It argues the trial court had no discretion to order a mistrial on appellant’s guilt once the

jury reached the verdict, citing article 37.07, section 3(c) of the code of criminal procedure. That

section provides:

        If the jury finds the defendant guilty and the matter of punishment is referred to
        the jury, the verdict shall not be complete until a jury verdict has been rendered on
        both the guilt or innocence of the defendant and the amount of punishment. In the
        event the jury shall fail to agree on the issue of punishment, a mistrial shall be
        declared only in the punishment phase of the trial, the jury shall be discharged,
        and no jeopardy shall attach. The court shall impanel another jury as soon as
        practicable to determine the issue of punishment.

TEX. CODE CRIM. PROC. ANN.       ART.   37.07, § 3(c) (West Supp. 2012). The trial court had no

discretion in following this provision—it is mandatory. See Ex parte Douthit, 232 S.W.3d 69, 72

(Tex. Crim. App. 2007) (noting most provisions in code of criminal procedure are mandatory

based on “shall” and “must” language). Accordingly, the trial court’s only authority was to grant

a mistrial as to punishment. We overrule appellant’s second and third issues.

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




                                                      /Mary Murphy/
                                                      MARY MURPHY
Do Not Publish                                        JUSTICE
TEX. R. APP. P. 47

110959F.U05


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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JAMAL DESHUN APPLEWHITE,                             On Appeal from the Criminal District Court
Appellant                                            No. 7, Dallas County, Texas
                                                     Trial Court Cause No. F11-00048-Y.
No. 05-11-00959-CR         V.                        Opinion delivered by Justice Murphy.
                                                     Justices Lang-Miers and Fillmore
THE STATE OF TEXAS, Appellee                         participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of June, 2013.




                                                     /Mary Murphy/
                                                     MARY MURPHY
                                                     JUSTICE




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