Opinion filed September 19, 2019




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00257-CR
                                  __________

                  RANDELL RAY BOWERS, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR24773


                     MEMORANDUM OPINION
       After a bench trial, the trial court convicted Randell Ray Bowers of
aggravated assault. See TEX. PENAL CODE ANN. § 22.02 (West 2019). Appellant
pleaded “true” to two prior felonies alleged for enhancement purposes. The trial
court made an affirmative deadly weapon finding and sentenced Appellant to
confinement for life in the Institutional Division of the Texas Department of
Criminal Justice.1 In a single issue, Appellant contends that the evidence was
insufficient to support the finding that he used or exhibited a firearm during the
assault. We affirm.
                                        Background Facts
       On July 3, 2016, Appellant and Tabitha Porter, Appellant’s girlfriend, went to
sleep at Porter’s apartment. Subsequently, Appellant woke Porter. Appellant was
holding Porter’s cell phone and confronted her about her status as “single” on social
media. Porter told Appellant that she did not know how to change her status. Porter
testified that she tried to change her status but that, when she was unable to do so,
Appellant struck her on the back of the head three times with a closed fist. Appellant
then went to the bathroom, and when he returned, instructed Porter to sit up. Porter
testified that Appellant was holding her cell phone and that she could see a gun in
his hand from the light on the cell phone. The lights were not on in the apartment.
Appellant approached Porter and pointed the weapon at her “private area” and stated:
“I can put a pillow over it and shoot you and walk out, and nobody would know.”
Appellant then threw Porter against a wall twice. Porter testified that she ran to her
neighbor’s apartment and called 9-1-1.
       Catherine Brooks, Porter’s neighbor, testified that, after Porter ran into
Brook’s apartment, Brooks talked to Appellant outside. While Brooks waited for
the police to arrive, Appellant went back into Porter’s apartment. Brooks testified
that she heard a thud in the attic shared by both apartments. When the police arrived,
they were not able to locate the gun. Brownwood Police Officer Paul Chrisman
testified that he looked for the gun in the attic but that he was not able to physically


       1
        The record reflects that Appellant had seven prior felony convictions, as well as several prior
misdemeanor convictions. Many of the prior convictions involved assaults or weapons. Additionally,
Appellant was also convicted in the same bench trial of three counts of forgery. The trial court also
sentenced Appellant to confinement for life for the three forgery convictions.

                                                  2
get into the attic because the opening was too small. He could not see the entire attic
with his flashlight. However, he testified that it was possible that there was a gun in
the attic.
                                       Analysis
       Appellant contends that the evidence was insufficient to support the finding
that he used or exhibited a firearm during the assault. He directs his contention to
the fact that the police were unable to locate a firearm after conducting a thorough
search of Porter’s apartment and the surrounding area.
       We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review
all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.


                                          3
      A person commits the offense of assault if that person intentionally,
knowingly,     or   recklessly    causes     bodily    injury   to    another    person.
PENAL § 22.01(a)(1). As relevant to this case, the offense becomes aggravated
assault if that person uses or exhibits a deadly weapon during the commission of the
assault. Id. § 22.02(a)(2). A deadly weapon is exhibited when it is consciously
shown, displayed, or presented for view. Patterson v. State, 769 S.W.2d 938, 941
(Tex. Crim. App. 1989).
      Although the police never found the gun, the trial court concluded on the
record that Porter’s testimony was credible. See Gomez v. State, 685 S.W.2d 333,
336 (Tex. Crim. App. 1985) (holding evidence legally sufficient to prove use of
firearm, without recovery of weapon, based solely on complainant’s description).
Porter testified that, during the assault, she could see a gun in Appellant’s hand from
the light on her cell phone. She further testified that she saw Appellant point the gun
at her “private area” and heard him state: “I can put a pillow over it and shoot you
and walk out, and nobody would know.” Additionally, Brooks testified that, after
Appellant went back inside the apartment, she heard a thud in the shared attic while
waiting for the police to arrive. Officer Chrisman testified that he was unable to
physically enter the attic but that it was possible that there was a gun in the attic.
      Based upon Porter’s testimony, a rational trier of fact could have found
beyond a reasonable doubt that Appellant used or exhibited a firearm during the
assault. See PENAL § 1.07(a)(17)(A) (West Supp. 2018); Ex parte Huskins, 176
S.W.3d 818, 820 (Tex. Crim. App. 2005) (stating that a firearm is a deadly weapon
per se). The fact that the officers could not find the firearm is an inference that
conflicts with Porter’s testimony. Under the applicable standard of review, we defer
to the factfinder’s resolution of conflicting inferences. See Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence was sufficient


                                            4
to support Appellant’s conviction for aggravated assault with a deadly weapon. We
overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


September 19, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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