                                  NO. 07-05-0345-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                   MARCH 15, 2006

                         ______________________________


                     TOMAS RAMON HERNANDEZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                    NO. 3613; HONORABLE RON ENNS, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Following a plea of not guilty, appellant Tomas Ramon Hernandez was convicted

by a jury of deadly conduct and punishment was assessed by the trial court at three years

confinement, suspended for five years, and a $5,000 fine which was not suspended.
Presenting a sole issue, appellant challenges the sufficiency of the evidence to support the

culpable mental state of recklessness. We affirm.


       Appellant skipped school and drove to a friend’s ranch located approximately one

block north of the Dumas city limits to discharge a shotgun and rifle with two other friends.

They shot cans located on top of an eight-foot high fence post and shot upwards at birds.

They also shot a cat and two cattle on property belonging to complainant Dale Richardson.

He testified he found spent shotgun shells at one of his gates and then discovered his cat

and cattle. He reported the incident, and an investigation led law enforcement to the owner

of the firearms, who was one of appellant’s friends.


       By his sole issue, appellant maintains the evidence is insufficient to demonstrate the

culpable mental state of recklessness to support a conviction for deadly conduct.1 We

disagree. Evidence is legally insufficient if, when viewed in a light most favorable to the

prosecution, a rational trier of fact could not have found each element of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001).

As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict




       1
        Although appellant does not specify if he is challenging the legal or factual
sufficiency of the evidence, the only case he cites reviewed both. See Ford v. State, 38
S.W.3d 836, 846 (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d). In the interest of justice,
we will conduct a legal and factual sufficiency review.

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unless it is irrational or unsupported by more than a “mere modicum” of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       In conducting a factual sufficiency review, we must determine after considering all

the evidence in a neutral light, whether the jury was rationally justified in finding guilt

beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004).

It is the exclusive province of the jury to determine the credibility of the witnesses and the

weight to be given their testimony, and unless the record clearly demonstrates a different

result is appropriate, we must defer to the jury’s determination. Johnson v. State, 23

S.W.3d 1, 8 (Tex.Cr.App. 2000).


       Appellant was charged with deadly conduct in a two-count indictment for knowingly

discharging a firearm at or in the direction of a building and acting recklessly as to whether

the building was occupied and for knowingly discharging a firearm at or in the direction of

an individual.   Tex. Pen. Code Ann. § 22.05(b)(1) and (2) (Vernon 2003).              Under

subparagraph (b)(2), two culpable mental states must be shown: the actor must knowingly

discharge a firearm at or in the direction of a building and be reckless as to whether the

building is occupied. See Yandell v. State, 46, S.W.3d 357, 361 (Tex.App.–Austin 2001,

pet. ref’d). Recklessness is not required for discharging a firearm at or in the direction of

an individual. See § 22.05(b)(1). Thus, because appellant challenges only the sufficiency

of the evidence to support recklessness, we need only review whether appellant discharged

a firearm at or in the direction of a building without regard to whether it was occupied.


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       A person acts recklessly, or is reckless, with respect to circumstances surrounding

his conduct or the result of his conduct when he is aware of but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or the result will occur. The

risk must be of such a nature and degree that its disregard constitutes a gross deviation

from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the actor’s standpoint. See Tex. Pen. Code Ann. § 6.03(c)

(Vernon 2003). Whether a defendant committed an offense with the requisite mental state

is an issue for the factfinder’s determination and is almost always proven by circumstantial

evidence. State v. Hart, 905 S.W.2d 690, 693 (Tex.App.–Houston [14th Dist.] 1995, pet.

ref’d). A culpable mental state may be inferred from the accused’s acts or words. Moore

v. State, 969 S.W.2d 4, 10 (Tex.Cr.App. 1998).


       The Chief Deputy of the Sheriff’s Office testified there were homes located within the

range of the shotgun and shells used by appellant. Two houses located to the west and

Richardson’s cattle stalls and another neighbor’s building across the road and to the east

were within throwing distance from where appellant discharged the firearms. Richardson

confirmed a yellow street sign indicating, “Slow - Children At Play” is displayed in the

vicinity. Other evidence established that a nearby home was occupied by children and

another home was occupied by a sick, disabled woman.


       One of appellant’s friends, who had previously pled guilty to deadly conduct, testified

he and appellant were facing north while shooting cans on the fence post, and he did not


                                              4
see any buildings when the firearms were discharged. All three individuals discharged the

shotgun in an upwards direction at birds flying overhead. On cross-examination, he denied

shooting at any houses and didn’t think appellant had fired in the direction of any houses.

He also denied seeing or shooting at a street sign indicating, “Slow - Children At Play.”


       From the circumstantial evidence presented, the jury could have inferred that

appellant was aware of, but consciously disregarded, the substantial and unjustifiable risk

of harm to an occupant of a nearby house or building and that his conduct constituted a

deviation form the standard of care exercised by an ordinary person under the

circumstances. We conclude the evidence is legally and factually sufficient to support

appellant discharged firearms at or in the direction of a building and acted recklessly

regarding whether the building was occupied. His sole issue is overruled.


       Accordingly, the trial court’s judgment is affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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