Opinion filed August 8, 2013




                                                In The


            Eleventh Court of Appeals
                                               __________

                                     No. 11-11-00100-CR
                                              _________

                           JOEL LARA CRUZ, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee


                         On Appeal from the 167th District Court
                                  Travis County, Texas
                         Trial Court Cause No. D-1-DC-10-904097


                          MEMORANDUM OPINION
        This court’s former opinion and judgment dated April 25, 2013, are
withdrawn, and this court’s opinion and judgment dated August 8, 2013, are
substituted therefor. Appellant’s motion for rehearing is this same day denied. 1



        1
          Upon receipt of Appellant’s motion for rehearing, the court reexamined the exhibits contained in
the reporter’s record. Upon examination, the court requested the court reporter to file a supplemental
reporter’s record containing some recordings and large plats that were not included in the reporter’s
record originally filed in this cause. The court has reviewed these supplemental items in consideration of
Appellant’s motion for rehearing, including State’s Exhibit Nos. 31, 32, and 36 that are plats depicting the
apartment complex, the location of the emergency vehicles, and the locations of the paramedics, police
officers, and Appellant during the incident.
       Joel Lara Cruz was indicted for four counts of aggravated assault with a
deadly weapon against a public servant. The jury convicted him of the offenses in
Counts One and Four and acquitted him of the offenses in Counts Two and Three.
The jury assessed his punishment at confinement for a term of fifteen years on
each count in the Institutional Division of the Texas Department of Criminal
Justice. Appellant challenges his convictions in six points of error. We affirm.
                                 Background Facts
       Brian Mason and Eric Richard Lancaster, paramedics employed by the City
of Austin, responded to a call at the Forest Hill Apartments in Austin on the
evening of December 4, 2009. They were responding to an injury call from police
officers that had previously arrived at the apartment complex. As Mason pulled
equipment from the ambulance, he “felt air and like a whiz go by [his] head.” He
subsequently heard an air rifle being fired, and he heard a “pellet” hit the concrete
close to his feet. He testified that the first shot came within inches of him and that
it was loud enough that he could hear it over the running diesel engine of his
ambulance. Mason and Lancaster ran to the apartment where the police officers
had responded to alert the officers that someone was shooting at the paramedics
with an air rifle.
       Officer Valentin Ramirez De Los Santos of the Austin Police Department
had previously responded to a domestic violence call at the apartment complex.
He called for the paramedics to treat a female that had been cut by a window.
Upon receiving the shooting report from the paramedics, Officer De Los Santos
and Officer Justin Berry attempted to locate the shooter. As they approached the
area in the apartment complex where the shots had been fired, Officer De Los
Santos and Officer Berry heard another shot. Officer De Los Santos feared that
Officer Berry had been hit in the face by the shot. Officer Berry testified that the
shot came within inches of his face and that he heard it make an impact behind
                                          2
him. Officer Berry and Officer De Los Santos observed a man standing on a
balcony holding a rifle, and they identified him as the shooter. Officer De Los
Santos and Officer Berry also identified Appellant at trial as the shooter.
      Officer De Los Santos was prepared to shoot Appellant but did not do so
when Appellant took a step back on the balcony. With the assistance of backup
officers, Officer De Los Santos subsequently entered the apartment where
Appellant was located. Upon entering the apartment, he observed Appellant on the
balcony. Officer De Los Santos subsequently found an air rifle hidden behind
some tools on the balcony. Officer Berry also found a container of BBs on the
balcony.
      Mason, Lancaster, Officer De Los Santos, and Officer Berry all testified that
they felt threatened by the shots that Appellant fired at them. As paramedics,
Mason and Lancaster testified that they were trained to treat air rifle injuries as
serious injuries because air rifles can be deadly. Officer De Los Santos offered his
opinion that an air rifle is capable of causing death or serious bodily injury. The
State also presented the testimony of Gregg Karim, a firearm and tool mark
examiner for the Austin Police Department, regarding his examination of the air
rifle recovered from Appellant. He described the air rifle as a “.177-caliber”
“manual multi-pump variable powered pneumatic rifle.” His testing of the air rifle
revealed that it was capable of firing a pellet between 203 and 481 feet per second
and that it was capable of firing a BB between 270 and 523 feet per second. He
opined that the air rifle was capable of causing serious bodily injury based upon
research indicating that a BB can penetrate the eye if fired at 246 feet per second
and that it could penetrate the skin if fired at 365 feet per second.
      The indictment alleged in Count One that Appellant intentionally or
knowingly threatened Officer Berry with imminent bodily injury and that he used
or exhibited a deadly weapon during the commission of the assault. Count One
                                           3
further alleged that Officer Berry was a public servant discharging an official duty
and that Appellant knew that Officer Berry was a public servant at the time.
Counts Two, Three, and Four alleged the same offense with respect to Mason
(Count Two), Lancaster (Count Three), and Officer De Los Santos (Count Four).
The jury convicted Appellant of the offense of aggravated assault with a deadly
weapon against a public servant with respect to Officer Berry (Count One) and
Officer De Los Santos (Count Four), but acquitted him of the offense with respect
to the paramedics, Mason (Count Two) and Lancaster (Count Three).
                                       Analysis
      In his first four points, Appellant challenges the sufficiency of the evidence
supporting his convictions.     We review a sufficiency of the evidence point,
regardless of whether it is denominated as a legal or factual claim, 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); Polk v. State, 337 S.W.3d
286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). 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). In conducting a sufficiency review, we
defer to the jury’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 v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and defer to that
determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
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      In his first and second points, Appellant challenges the sufficiency of the
evidence supporting the jury’s determination that the air rifle constituted a deadly
weapon as alleged in Counts One and Four. A person commits an assault if he
intentionally or knowingly threatens another with imminent bodily injury. TEX.
PENAL CODE ANN. § 22.01(a)(2) (West 2011). The offense is elevated to an
aggravated assault if the person uses or exhibits a deadly weapon during the
commission of the assault. Id. § 22.02(a)(2). The Penal Code defines a deadly
weapon as (A) a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury or (B) anything that in the
manner of its use or intended use is capable of causing death or serious bodily
injury. Id. § 1.07(a)(17) (West Supp. 2012).
      Appellant contends that the evidence supporting the deadly weapon finding
is insufficient because there was no evidence of the distance between the air rifle
and the officers when Appellant fired the shots, no evidence of whether he used
pellets or BBs, and no evidence of the number of times Appellant pumped the gun
when firing at the officers or the velocity of the projectiles expelled from the air
rifle. We disagree with Appellant’s analysis. The relevant inquiry is the gun’s
capability rather than its actual performance. “[I]n proving use of a deadly weapon
other than a deadly weapon per se, the State need show only that the weapon used
was capable of causing serious bodily injury or death in its use or intended use.”
Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002). The court held in
Adame that evidence of whether or not a BB gun used in a convenience store
robbery was loaded was not significant to a deadly weapon analysis. Id. This
principle applies in the instant case because the distance, ammunition, and number
of pumps used by Appellant are not relevant to the question of what the air rifle
was capable of doing.


                                         5
        Karim testified that the air rifle was capable of causing serious bodily injury
in its manner of use or intended use.2 He supported his opinion with his findings
regarding the air rifle’s capabilities.                  Based on Karim’s expert testimony, a
factfinder could conclude beyond a reasonable doubt that, if used to shoot a person
in the eye or other sensitive part of the body, the air rifle was capable of causing
serious bodily injury, including the possibility of “permanent disfigurement” or
“protracted loss or impairment of the function of any bodily member or organ.”
See PENAL § 1.07(a)(46). Appellant’s first and second points are overruled.
        Appellant’s third and fourth points challenge the sufficiency of the evidence
supporting the jury’s determination that he knew that Officer Berry and Officer De
Los Santos were public servants. Aggravated assault is punishable as a first-degree
felony if the offense is committed against a person the actor knows is a public
servant while the public servant is lawfully discharging an official duty. Id. §
22.02(b)(2)(B). The statute creates a presumption that an accused knew that “the
person assaulted was a public servant . . . if the person was wearing a distinctive
uniform or badge indicating the person’s employment as a public servant.” Id.
§ 22.02(c). The trial court instructed the jury on this presumption in the court’s
charge along with the general instruction to be given for permissive presumptions
under Section 2.05(a). 3 Id. § 2.05(a).

        2
           As noted above, Officer De Los Santos, Officer Berry, Mason, and Lancaster also testified that
the air rifle was capable of causing serious bodily injury.
        3
            The instruction provided as follows:

                The defendant is presumed to have known the person assaulted was a public
        servant if he was wearing a distinctive uniform or badge indicating his employment as a
        public servant.

                   The jury is instructed relative to this presumption, as follows:

                                   (A) that the facts giving rise to the presumption
                           must be proven beyond a reasonable doubt;

                                                        6
      Appellant bases his evidentiary challenge on evidence that the apartment
complex area was not well lit and that Officer De Los Santos and Officer Berry
utilized tactical maneuvers to limit their body exposure to the shooter. However,
Mason testified that he and Lancaster arrived at the scene in a large blue and
yellow ambulance and that they continued to keep the bright flashing lights on the
ambulance activated after they arrived and parked at the complex. Another police
officer at the scene, Officer Shawn Austin McWhorter, testified that the shooter
shot at three target areas and that each shot required him to move to a different
location to take each shot. He also testified that Appellant had a clear view of the
location where the ambulance was parked from the breezeway of his apartment
building. Officer McWhorter further testified that the lights from the ambulance
“radiated in” the courtyard area of the apartment complex. Additionally, Officer
De Los Santos and Officer Berry testified that they were wearing their uniforms at
the time of the incident and that their uniforms had white patches on the shoulders
and arms identifying them as police officers.
      Viewing the evidence in the light most favorable to the jury’s verdict, the
jury could have inferred that Appellant knew Officer De Los Santos and

FOOTNOTE NO. 3 CONTINUED:

                           (B) that if such facts are proven beyond a
                   reasonable doubt the jury may find that the element of
                   the offense sought to be presumed exists, but it is not
                   bound to so find;

                           (C) that even though the jury may find the
                   existence of such element, the state must prove beyond a
                   reasonable doubt each of the other elements of the
                   offense charged; and

                           (D) if the jury has a reasonable doubt as to the
                   existence of a fact or facts giving rise to the
                   presumption, the presumption fails and the jury shall not
                   consider the presumption for any purpose.



                                              7
Officer Berry were public servants based upon their uniforms identifying them as
police officers and the fact that he was able to see them sufficiently to be able to
fire at them. Additionally, the presence of flashing emergency lights from the
ambulance radiating throughout the apartment complex is another factor
supporting the inference that Appellant knew the officers were public servants. It
was within the jury’s province to resolve or reconcile any conflicts regarding the
lighting of the apartment complex and Appellant’s ability to perceive that Officer
De Los Santos and Officer Berry were police officers at the time that he shot at
them.     Furthermore, the officers’ testimony that they were in full uniform
constituted sufficient evidence of the predicate evidentiary fact to support the
statutory presumption that Appellant knew that they were public servants. The
jury instruction advised the jury that it “may find” the presumed fact if it found the
existence of the predicate fact. The permissive nature of the instruction afforded
the jury the opportunity to reject the statutory presumption if it determined that
Appellant had not observed that Officer De Los Santos and Officer Berry were
police officers. Appellant’s third and fourth points are overruled.
        Appellant asserts in his fifth point that the trial court erred in admitting into
evidence the warning inscribed on the air rifle. He contends that the warning
constituted hearsay.     The warning provided as follows: “Warning: Misuse or
careless use may cause serious injury or death.” The State asserts that Appellant
waived the error by failing to object to it when the air rifle was admitted into
evidence. We agree.
        A trial court’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.
App. 2005). The trial court’s ruling will not be reversed on appeal absent a clear
abuse of discretion. Id. A trial court’s erroneous admission of evidence will not
require reversal when other such evidence was received without objection, either
                                            8
before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998). Waiver occurs if similar evidence is admitted either
before or after the objection. Marshall v. State, 210 S.W.3d 618, 631 (Tex. Crim.
App. 2006).
      The trial court initially considered the warning inscribed on the air rifle
during Officer De Los Santos’s testimony. Appellant objected to Officer De Los
Santos reading the warning aloud to the jury. After a discussion outside the
presence of the jury, the trial court sustained the objection. During this discussion,
counsel for Appellant advised the trial court that he did not object to the admission
of the air rifle, only the reading of the warning aloud to the jury. The trial court
revisited the issue during Karim’s testimony when the State asked Karim to read
the warning aloud. The trial court overruled Appellant’s objection on the basis that
the air rifle was already in evidence.
      We conclude that the trial court did not abuse its discretion in permitting
Karim, an expert, to read the warning inscription aloud to the jury after the air rifle
had already been admitted into evidence. As noted above, Appellant did not object
to the admission of the air rifle or seek to have the warning redacted from it upon
admission. Thus, Appellant did not preserve this point for appellate review. See
Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010). Moreover, the
warning was cumulative of the previous evidence from Karim, the police officers,
and the paramedics that the air rifle was capable of causing serious bodily injury.
Accordingly, an error associated with the reading of the warning aloud to the jury
was harmless. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)
(When the erroneous admission of evidence is cumulative of other properly
admitted evidence proving the same fact, the erroneous admission is harmless.).
Appellant’s fifth point is overruled.


                                          9
      In his sixth point, Appellant contends that the trial court committed
egregious error under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh’g), by failing to sua sponte instruct the jury on the lesser
included offense of simple assault. He bases this contention on his perceived
deficiencies in the evidence regarding the use or exhibition of a deadly weapon and
his awareness that the officers were public servants. However, Appellant did not
request an instruction on the lesser included offense of simple assault. A trial court
has a sua sponte duty to prepare a jury charge that accurately sets out the law
applicable to the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). However, the
trial court has no duty to sua sponte instruct the jury on lesser included offenses
because they are defensive issues that frequently depend upon trial strategy and
tactics. Delgado, 235 S.W.3d at 249; accord Tolbert v. State, 306 S.W.3d 776, 781
(Tex. Crim. App. 2010). An instruction on a lesser included offense is simply not
applicable to the case absent a request by the defense for its inclusion in the jury
charge. Tolbert, 306 S.W.3d at 781. Appellant’s sixth point is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


August 8, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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