AFFIRM; and Opinion Filed July 9, 2019.




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00940-CR

                             DAMIAN MEDINA BUENO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
                             Trial Court Cause No. F17-58187-I

                              MEMORANDUM OPINION
                          Before Justices Schenck, Osborne, and Reichek
                                   Opinion by Justice Schenck
        Damian Medina Bueno appeals his conviction for aggravated assault with a deadly weapon.

In two issues, appellant asserts the trial court erred in allowing a lay witness to testify as to “legal

factual finding,” and in denying his request for a jury charge on the lesser-included offense of

deadly conduct. We affirm the trial court’s judgment. Because all issues are settled in law, we

issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                            BACKGROUND

        The State charged appellant by indictment with aggravated assault with a deadly weapon,

alleging appellant intentionally and knowingly threatened Yaneli Carrizales with imminent bodily

injury while displaying a firearm. The State also alleged that appellant and Carrizales were in a

dating relationship. Appellant entered a plea of not guilty and proceeded to jury trial.
       Carrizales testified that she and her thirteen-year old daughter and six-year old son had

been living with appellant for three months when the assault occurred. She explained that after

appellant moved into her home he became increasing negative, stopped talking to her, would leave

at times without a stated reason, and drank excessively. When she expressed to appellant that she

wanted him to move out of her home, he refused. During the time Carrizales lived with appellant,

he worked at a bar and typically came home around 2:30 a.m. On the night in question, Carrizales

fell asleep and woke when she heard appellant’s car pull into the driveway around 6 a.m. She

went outside and found appellant asleep at the wheel with the car door ajar. After she woke

appellant, an argument ensued between them and Carrizales told appellant that she was fed up with

his excessive drinking. She told appellant she wanted him to move out. Appellant followed

Carrizales into the house where the argument escalated. Appellant retrieved a gun from the

bedroom closet and loaded it. In fear of her life and the lives of her children, Carrizales ran to her

children’s bedroom to protect them. Appellant followed and stood in the doorway holding the

gun. Carrizales and her daughter begged appellant to put down the gun and Carrizales told him he

was unduly scaring the children. Carrizales recalled that appellant pointed the gun at her. She

believed appellant was going to hurt her and her children. She testified that appellant shot at the

floor and that, at some point, appellant asked her if she thought he was playing and pointed the

gun at her again. She indicated that during this ordeal appellant cursed at her and finally unloaded

the bullets from the gun and let them fall to the floor. After appellant emptied the gun, Carrizales’

daughter called the police. Carrizales and her children fled through the back door and met the

police outside. They waited three to four hours before a SWAT team entered the house and

retrieved appellant. On cross-examination, Carrizales confirmed that no physical harm came to

her or her children.




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       Carrizales’ daughter, J.G., testified that she awoke to Carrizales and appellant arguing. She

recalled that when her mother entered her room, she looked scared. J.G. observed appellant with

a gun in his hand. She testified that “[h]e was drunk and he was holding it towards my mom. He

didn’t have balance, his own body. It was like the gun was everywhere like towards us too.” When

asked to clarify exactly where appellant was pointing the gun, J.G. stated, “[a]t my mom but at us

too [because] he didn’t have balance his own body. When he was drunk he was [waving] the gun.”

She indicated that appellant turned around and shot at a wall. She stated that her brother was

crying during the ordeal and that after appellant emptied the bullets onto the floor, he went to the

kitchen, while she, her mother, and brother fled.

       Officer Villar testified that most of the 9-1-1 calls he responds to are domestic disturbance

calls. He indicated that typical domestic disturbance calls involve physical violence and it is rare

to have a call involving a gun. On September 16, 2017, Officer Villar responded to a “6XE” call,

meaning the situation had escalated to a point where someone’s life is potentially at risk. Because

shots were fired, he and another officer drew their weapons before approaching the house. He

described the scene as pretty calm and stated that both officers believed they were at the wrong

home until they encountered Carrizales and her children fleeing out the back door. He testified

Carrizales and her children were terrified and upset and he tried to get them away from the house

into a tree line where they would not be visible. Officer Villar stated several officers arrived at

the scene, and ultimately SWAT was called to assist because appellant would not come out of the

house. After deploying gas, “O.C” grenades, and a robot into the home, SWAT entered the home

and retrieved appellant.

       Detective Bazan testified that he had been with the Dallas Police Department for twenty-

one years and collected evidence at the scene. During the investigation, he collected the firearm

and two bullet fragments, and he documented a defect in the wall where the bullet struck. No

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spent casings were located. Detective Bazan testified that the presence of two fragments could

mean that the gun was fired twice or the bullet broke. He only discovered one bullet hole in the

home. One bullet was found in the chamber of the gun and there were no bullets in the magazine.

       Appellant testified he and Carrizales were coworkers who became close friends and

eventually moved in with each other. They had a good relationship until Carrizales stopped

working. Appellant acknowledged that he had a drinking problem and attributed it to the decline

in his relationship with Carrizales. He claimed Carrizales continually questioned him about dating

other women. On the night in question, he arrived home around 6:00 a.m. because he had been

drinking after work. He claimed that when he arrived home, he went into the house and found

Carrizales waiting for him. He indicated she began screaming at him, accused him of having been

with another woman, and then took away his phone. He claimed that after Carrizales found a text

message on his phone from another woman, she assaulted him. Appellant stated Carrizales’ assault

upset him so he went to the closet in the bedroom and grabbed the gun. Appellant acknowledged

that he went to the children’s room with the gun, but claimed he never pointed the weapon at

Carrizales or the children. He testified that Carrizales and the children appeared to be nervous.

After he fired the gun, he went to the kitchen to eat and saw Carrizales and the children leave.

Appellant confirmed that he had control of his faculties, he was not flailing around, and that he

shot the gun because he was angry. Appellant admitted that he is a convicted felon and is not

legally allowed to possess a gun.

       The jury found appellant guilty of the charged offense and assessed punishment at seven

years’ confinement. Appellant filed a motion for new trial. The motion was overruled by operation

of law. This appeal followed.




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                                               DISCUSSION

        In his first issue, appellant urges the trial court erred in allowing Officer Villar to testify as

to a “legal factual finding.” More particularly, appellant complains about the following exchange

between the State and Officer Villar:

        [Prosecutor]: Have you seen cases of aggravated assault deadly weapon gun cases?

        [Officer Villar]: Yes.

        Q: Is it possible to have an aggravated assault deadly weapon where the gun’s not even
shot off?

        A: yes.

       APPELLANT’S COUNSEL: Objection, it’s a legal factual finding he can’t make. He’s
not authorized to make.

        PROSECUTOR: I’m asking his experience as on officer, Your honor.

        THE COURT: I’ll allow that.

        A: Yeah, threats, you can threaten someone with a gun.

        Q: That’s still on offense, correct?

        A: Correct.

        Q: Even if no one’s injured that’s aggravated assault with deadly weapon, correct?

        APPELLANT’S COUNSEL: Again he’s making a finding of factual and a legal finding. I
object to that response.

        THE COURT: Overruled.

        Q: You can answer.

        A: Yes, you point a gun at someone, in their eyes they’re thinking they’re gonna die, you
know.

        Q: Okay. In this case through your investigation did you determine that a gun was shot off?

        A: Yes.




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         Q: Safe to say this rose to a level of aggravated assault deadly weapon?

         A: Absolutely yes.

         Appellant claims that in overruling his objections to Officer Villar’s testimony the trial

court allowed a lay witness to testify as to a legal conclusion. A defendant must timely object

each time the State offers inadmissible evidence unless the defendant obtains a running objection.

Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The overruling of an objection to

evidence will not result in reversal when other like evidence was received without objection, either

before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App.

1998).

         Assuming in the first instance, without deciding, that the trial court erred in overruling

appellant’s objection to Officer Villar’s testimony, appellant did not object to the ultimate question

of whether this rose to the level of aggravated assault. Moreover, appellant did not object to the

following testimony of Detective Bazan, which was substantially the same as the complained of

testimony.

         [Prosecutor]: Have you worked ag assaults before?

         [Detective Bazan]: Yes

         Q: In working those have you seen other cases where a gun was used?

         A: Yes.

         Q: Have you worked ag assaults where a gun’s used but not shot off?

         A: Yes, I have.

       Q: Say that you are, you have a gun pointing at me doing nothing to deserve it, is that
aggravated assault deadly weapon?

         A: Could be, yes.

         Q: Do you need to fire the weapon for it to be an offense?

         A: No.
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        Q: Do I need to be injured for it to be on offense?

        A: No.

        Q: Do you need to actually say I’m going to kill you for it to be an offense?

        A: No.

        Q: You need to say I’m going to hurt you for it to be an offense?

        A: No.

Accordingly, reversal on account of Officer Villar’s testimony is not warranted. See id. We

overrule appellant’s first issue.

        In his second issue, appellant contends that, in this case, misdemeanor deadly conduct is a

lesser-included offense of aggravated assault and the trial court erred in denying his request for a

deadly conduct instruction.

        A trial court’s decision to submit or deny a lesser-included offense instruction is reviewed

for an abuse of discretion. Treadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). We

apply a two-step test to determine whether an instruction on a lesser-included offense should have

been given to the jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). First, we

determine if the proof necessary to establish the charged offense also includes the lesser

offense. Id. If so, in the second step we review the record for some evidence that would permit a

jury to rationally find that, if the appellant is guilty, he is guilty only of the lesser offense. Id. at

382.

        Deadly conduct is a lesser-included offense of aggravated assault if (1) deadly conduct is

established by proof of the same facts, or less than the same facts, than is required to establish

appellant committed aggravated assault; (2) deadly conduct differs from aggravated conduct only

in respect that a less serious injury or risk of injury exists; (3) deadly conduct differs from

aggravated assault only in the respect that a less culpable mental state is required; or (4) deadly
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conduct consists of an attempt to commit aggravated assault or an otherwise included offense. See

Ortiz v. State, 144 S.W.3d 225, 231–32 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (en

banc) (citing TEX. CODE CRIM. PROC. ANN. art. 37.09)). Each definition of a lesser-included

offense in article 37.09 of the code of criminal procedure is stated with reference to “the offense

charged” and specifically states the manner in which the lesser-included offense differs from the

offense charged. Bell v. State, 693 S.W.2d 434, 437 (Tex. Crim. App. 1985).

       We first determine the elements of the offense as charged. Campbell v. State, 149 S.W.3d

149, 153 (Tex. Crim. App. 2004) (en banc). Appellant’s indictment charged that he “unlawfully

then and there intentionally and knowingly threaten[ed] YANELI CARRIZALES . . . with

imminent bodily injury, and said defendant did use and exhibit a deadly weapon, to-wit: a

FIREARM, during the commission of the assault . . . .” Therefore, appellant was charged with

aggravated assault by use of a deadly weapon under section 22.02(a)(2) of the penal code. TEX.

PENAL CODE ANN. § 22.02(a)(2).          Accordingly, the State was required to prove beyond a

reasonable doubt that appellant intentionally or knowingly threatened Carrizales with imminent

bodily injury by knowingly and intentionally using a deadly weapon.

       We next look at the elements of deadly conduct, which appellant contends is a lesser-

included offense. The penal code provides that a person commits the offense of deadly conduct if

he “recklessly engages in conduct that places another in imminent danger of serious bodily injury.”

Id. § 22.05(a). Recklessness and danger are presumed when the actor “knowingly point[s] a

firearm at or in the direction of another . . . .” Id. § 22.05(c). Reckless conduct is a lesser-included

offense of the offense charged in the instant case because it is established by proof of the same

facts required to establish the commission of aggravated assault by the use of a deadly weapon.

See Bell, 693 S.W.2d at 439.




                                                 –8–
       Merely because a lesser offense is included within the proof of a greater offense, however,

does not always compel the submission a jury charge on the lesser offense. Aguilar v. State, 682

S.W.2d 556, 558 (Tex. Crim. App. 1985). The remaining question is whether there is some

evidence that appellant, if guilty, is guilty only of the lesser included offense of reckless conduct.

Campbell, 149 S.W.3d at 152. Satisfying the second step “requires affirmative evidence that both

raises the lesser-included offense and rebuts or negates an element of the greater offense.”

Cavazos, 382 S.W.3d at 385.

       Appellant contends that J.G., who was twelve years old at the time of trial, provided a

scintilla of evidence that appellant might be guilty of deadly conduct only because she contradicted

her mother on where appellant aimed when he fired the gun, testified appellant was drunk and

flailing around and did not have control over the weapon, and admitted that appellant did not state

that he was going to kill anyone or do harm. That testimony does not establish appellant acted

recklessly rather than intentionally and knowingly. Moreover, based upon the entire record, and

as discussed infra, we conclude a jury could not have rationally concluded that appellant, if guilty,

was guilty of deadly conduct only.

       In particular, Carrizales testified that appellant intentionally pointed the gun at her, J.G.

testified appellant intentionally pointed the gun at everyone, and appellant himself stated that he

retrieved the gun because he was angry at Carrizales, admitting he intended to retrieve the gun, he

intended to load the gun, and intended to stop Carrizales’ alleged assault of him. In addition,

appellant admitted that he was in control of his actions at the time. Accordingly, we conclude

there is no evidence from which a jury could rationally conclude appellant acted recklessly rather

than intentionally. We overrule appellant’s second issue.




                                                 –9–
                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                 /David J. Schenck/
                                                 DAVID J. SCHENCK
                                                 JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47

180940F.U05




                                               –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 DAMIAN MEDINA BUENO, Appellant                       On Appeal from the Criminal District Court
                                                      No. 2, Dallas County, Texas
 No. 05-18-00940-CR         V.                        Trial Court Cause No. F17-58187-I.
                                                      Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                         Justices Osborne and Reichek participating.

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


Judgment entered this 9th day of July, 2019.




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