                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00469-CR
                           ____________________

                    JOHN CHARLES ALFREY, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                On Appeal from the County Court at Law No. 2
                           Orange County, Texas
                          Trial Cause No. E102939
________________________________________________________            _____________

                          MEMORANDUM OPINION

      John Charles Alfrey was found guilty of deadly conduct and he was then

sentenced, based on the jury’s findings, to serve a sentence of one year in jail. In

his appeal, Alfrey challenges the sufficiency of the evidence and the trial court’s

decision to admit evidence over his objection during the punishment phase of his

trial that showed he was subject, at the time of his trial, to an order requiring a

peace bond. We affirm the trial court’s judgment.



                                         1
                             Sufficiency of the Evidence

      In his first issue, Alfrey argues the evidence is insufficient to support his

conviction. In determining whether the evidence admitted during a trial is legally

sufficient to support a defendant’s conviction, we consider the entire record in the

light most favorable to the verdict, and determine whether the evidence, when

reviewed in that light, is sufficient to have allowed a rational trier of fact to find the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.

Crim. App. 2010). In conducting a legal sufficiency review, the appeals court is not

to substitute its judgment on disputed facts or inferences the factfinder may have

reasonably inferred from the evidence; instead, we allow the jury to exercise its

responsibility to fairly resolve any conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from the facts. See Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). On appeal, the jury’s verdict will be

upheld “unless a reasonable juror must have had a reasonable doubt as to at least

one of the elements of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494

(Tex. Crim. App. 2012).

      In Alfrey’s case, the jury found that on or about May 21, 2011, Alfrey

recklessly placed the complaining witness in imminent danger of serious bodily

                                            2
injury by forcing her car into opposing traffic. See Tex. Penal Code Ann. §

22.05(a) (West 2011). The complaining witness testified that before the incident,

she purchased a car that Alfrey, her neighbor at that time, wanted. The evidence

before the jury also indicates that approximately two months before the offense

occurred, the complaining witness moved to Brenham with her brother, D.P., after

she had a “confrontation with John Alfrey[;]” and, she explained that she hoped

that moving would make the problem with Alfrey “go away.” 1

      According to the complaining witness, on May 21, 2011, she was driving

from Deweyville to Orange on Highway 87. She was travelling with her infant

daughter and her brother, D.P., when she first saw Alfrey, who was in his car. As

Alfrey followed her, he drove onto the shoulder to her right; then, as he got next to

her, he swerved toward her. The complaining witness described how she swerved

into the oncoming traffic lane and then returned to her lane, and that after she

crossed the railroad tracks, Alfrey pulled beside her again. Once again, Alfrey

      1
       During the guilt phase of the trial, the record does not show whether the
confrontation the complaining witness was referring to several months before the
incident occurred was related to the fact that she purchased a car that Alfrey
wanted, or whether the confrontation grew from some other conflict that she had
with him. However, to prove that a defendant has violated section 22.05 of the
Texas Penal Code, the State is not necessarily required to prove the exact reason
the defendant engaged in the conduct at issue. See Tex. Penal Code Ann. §
22.05(a) (West 2011) (requiring that the State prove the defendant “recklessly”
engaged in the conduct at issue).
                                         3
swerved toward her, forcing her into the oncoming traffic lane. The complaining

witness testified that after she returned to her lane, she dialed 911. Alfrey

attempted one more time to force her car off the road; according to the

complaining witness, that time there were vehicles in the oncoming lane, a car and

a tractor-trailer. This time, she pulled onto the shoulder of the oncoming lane and

stopped to avoid the oncoming traffic. The complaining witness testified that the

oncoming traffic was approximately 100 feet from her when she crossed onto the

shoulder of the oncoming lane. According to the complaining witness, the cars that

she and Alfrey were driving were travelling between 70 and 75 miles per hour

during the course of the events, the cars in the oncoming lane came very close but

never actually touched the car she was driving, and the drivers of the approaching

vehicles in the oncoming lane did not stop or report the incident.

      Also,   during    the   complaining     witness’s   direct     examination,   she

acknowledged that she has a poor memory, but she claimed that she had a clear

memory of this incident because she was frightened by it. On cross-examination,

Alfrey’s attorney brought out several discrepancies between the statement that the

complaining witness gave police five days after the incident and her testimony at

trial concerning the exact location on the highway where the events of May 21 had

occurred.

                                          4
      D.P., the complaining witness’s passenger, also testified during Alfrey’s

trial. In large part, D.P.’s version of the events is consistent with the testimony of

the complaining witness. However, D.P. disagreed with the complaining witness’s

account of exactly where on Highway 87 Alfrey forced them into oncoming traffic.

However, D.P.’s testimony that Alfrey forced them into oncoming traffic by

swerving his car toward theirs from the right shoulder of the highway is consistent

with the testimony presented through the complaining witness. With respect to the

location where they swerved into oncoming traffic, D.P. testified that they moved

into oncoming traffic right after passing some railroad tracks.

      On appeal, Alfrey argues that because there were no physical signs of the

alleged incident, such as marks on the vehicles or the roadway, and because

discrepancies exist in the accounts 2 of the incident provided to the jury, “no

rational trier of fact could have found beyond a reasonable doubt that [Alfrey]

engaged in reckless or deadly conduct as alleged.” While Alfrey points to several

conflicts in the witnesses’ accounts of the incident that form the basis of his

      2
       The complaining witness’s accounts of the incident consist of the 911 call
the complaining witness made when the incident occurred, questions the
complaining witness was asked during trial about the written statement she gave
the police five days after the incident occurred, and the trial testimony provided by
the complaining witness. D.P.’s accounts of the incident consist of the questions he
was asked about a statement he gave police ten days after the incident, and the
testimony he gave about the incident at trial.
                                          5
conviction, it was up to the jury to determine the credibility of the witnesses that

testified and to either believe or disbelieve their testimony. See Fuentes v. State,

991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). When a jury returns a guilty verdict in the face of

conflicting testimony, the appellate court presumes in the appeal that the jury

resolved the conflicts in the testimony in favor of the prosecution. See Turro v.

State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Although the record contains

conflicting evidence about the exact location where the car driven by the

complaining witness was forced into oncoming traffic, both D.P. and the

complaining witness testified that Alfrey forced the complaining witness’s car into

oncoming traffic. Although there may be differences in the testimony provided by

various witnesses in a trial, “[e]ach 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 v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007).

      Two witnesses testified that Alfrey forced the complaining witness’s car into

oncoming traffic, and the jury apparently believed the testimony that Alfrey forced

the complaining witness’s car into oncoming traffic as she travelled down

Highway 87 in May 2011. Although there are discrepancies in various aspects of

                                          6
the accounts regarding the exact location on Highway 87 where the incident they

described occurred, and even though there were no physical marks on the vehicles

or highway, the evidence is sufficient to allow a rational trier of fact to find,

beyond reasonable doubt, that by forcing her car into opposing traffic, Alfrey

recklessly engaged in conduct that placed the complaining witness in imminent

danger of serious bodily injury. See Jackson, 443 U.S. at 319; see also Tex. Penal

Code Ann. § 22.05(a). We overrule issue one.

                         Evidence of Extraneous Bad Acts

      In issue two, Alfrey complains the trial court erred by admitting evidence in

the punishment phase of his trial that a justice of the peace, less than a month after

the incident at issue occurred, signed a peace bond that prohibited Alfrey from

threatening, harassing, or harming the complaining witness. The record of the trial

shows that during the trial’s punishment phase, the complaining witness testified

that after this incident she moved because she was afraid of Alfrey, and she also

obtained a peace bond against him. Over Alfrey’s objection that proof for a peace

bond was not required beyond a reasonable doubt and that the document was

irrelevant and prejudicial, the trial court admitted a copy of the order into evidence.

See Tex. R. Evid. 401, 403; see also Tex. Code Crim. Proc. Ann. art. 37.07, §

3(a)(1) (West Supp. 2013). The order at issue shows that it was signed on June 10,

                                          7
2011, less than one month after the date Alfrey committed the conduct for which

he was tried. The order at issue states that Alfrey “is accused by complaint under

oath . . . with threatening and being about to commit an offense against the

[complaining witness,]” and states that the justice court:

      heard proof as to the accusation herein, finds that there is just reason
      to apprehend that the offense of Assault, was intended to be
      committed by the Defendant, to Assault and intentionally and
      knowingly cause bodily injury to [the complaining witness], and the
      threat of the offense was seriously made[.]

      The order at issue was admitted during the punishment phase of Alfrey’s

trial. In the punishment phase, the trial court has discretion to allow punishment-

phase evidence to show the “circumstances of the offense,” and to admit:

      any other evidence of an extraneous crime or bad act that is shown
      beyond a reasonable doubt by evidence to have been committed by
      the defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Alfrey argues that the order at

issue was inadmissible in the punishment phase because the fact that the

complaining witness applied for and obtained a peace bond following the date of

his alleged offense does not prove that the offenses referred to in the order at issue

were threatened or that he intended to commit them. According to Alfrey, by

suggesting in final argument that the jurors should examine the order at issue, the

                                          8
State buttressed the impression that the peace bond was based on a different

occurrence than the conduct he was convicted of at trial. Alfrey argues that the

circumstances surrounding the justice court’s decision to order a peace bond were

not disclosed to the jury, and that consequently, the jury had “no choice except to

consider it as proof of ‘prior bad acts’ for which [Alfrey] should be punished more

harshly.”

       The trial court could have reasonably viewed the order at issue to be relevant

in the punishment phase of the trial because the offense referred to in the order was

based on Alfrey’s conduct of May 21, 2011. See id. While the order at issue was

also possibly admitted in the punishment phase to show that Alfrey committed

other extraneous offenses, if it was admitted as evidence of other offenses, the trial

court was required to instruct the jury not to consider the order unless it found,

beyond a reasonable doubt, that Alfrey had committed the extraneous offenses

referred to in the order. Id.

       In Alfrey’s case, the trial court instructed the jury to that effect by giving the

jury the following instruction:

             You are instructed that if there is any testimony before you in
       the punishment phase of this case regarding the defendant’s having
       committed offenses or bad acts other than the offense alleged against
       him/her in this case, you cannot consider said testimony for any
       purpose unless you find and believe beyond a reasonable doubt that
       the defendant committed such other offenses or bad acts.
                                           9
      Assuming the recitals in the peace bond order imply the commission of an

extraneous offense, as opposed to the commission of the charged offense, the trial

court did not err in submitting the matter to the jury as the exclusive judge of the

facts. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). We

presume the jury followed the trial court’s punishment charge instructions. See

Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002). Alfrey has not

referred us to any evidence in the record to support his argument that the jury did

not deliberate and decide his case based on the instructions that are contained in

the charge. We overrule issue two, and we affirm the trial court’s judgment.

      AFFIRMED.


                                             ________________________________
                                                       HOLLIS HORTON
                                                           Justice


Submitted on April 30, 2014
Opinion Delivered September 3, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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