                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00114-CR

                                          Kristi COLLINS,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 218th Judicial District Court, Wilson County, Texas
                                  Trial Court No. 16-09-180-CRW
                             Honorable Russell Wilson, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: May 15, 2019

AFFIRMED

           Kristi Collins appeals her conviction for aggravated assault on a public servant. Collins

argues the evidence is legally insufficient to support the jury’s rejection of her defense of mistake

of fact.

                                            BACKGROUND

           Deputy Frank Ashton responded to a domestic disturbance at Collins’s residence at

7:30 a.m. on February 28, 2016. The dispute at the residence arose out of an altercation between

Collins and her fiancé’s son, Chris. Deputy Ashton approached the residence in a marked police
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vehicle, and he was wearing his Sheriff’s uniform. As he approached in his vehicle, Deputy

Ashton made eye contact with a female, presumably Collins, who was standing on the front porch.

Deputy Ashton testified he was certain the female made eye contact with him “because she turned

to her right and looked straight at [him] and then turned towards the trailer and then went back in

the trailer.” Deputy Ashton approached the residence on foot while announcing he was from the

Sheriff’s Office so that anyone inside the residence could hear. Shortly after, Collins’s fiancé,

Richard Berry, walked out of the residence and onto the front porch with a gun strapped on his

shoulder. Deputy Ashton unholstered his weapon and asked Berry to put his gun down. While

Berry was complying with Deputy Ashton’s request, Collins appeared at an open window and

yelled: “You put your weapon down. You’re trespassing.” Deputy Ashton testified Collins was

the female he saw on the front porch as he approached in his vehicle. Deputy Ashton heard Collins

say “[y]ou know what” as she disappeared from the window and reappeared with a shotgun pointed

towards him. Believing his life was in imminent danger, Deputy Ashton fired two shots, both

hitting Collins and ending the altercation. Deputy Ashton was wearing a body camera that

captured the entire incident. The footage from the camera was properly introduced into evidence

and was shown to the jury.

       At trial, Collins testified the sun blinded her view when Deputy Ashton pulled his service

pistol and she was not able to see he was a peace officer. Although her testimony was somewhat

inconsistent, Collins claimed she stuck the shotgun out of the window because she thought Chris

or one of his friends had arrived and was threatening Berry with a weapon. The court instructed

the jury on the mistake-of-fact defense in the jury charge. After hearing the evidence, the jury

found Collins guilty of aggravated assault on a public servant.




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                                            DISCUSSION

       In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in the

light most favorable to the prosecution to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt and could have found against

the accused beyond a reasonable doubt on a defensive issue raised by the evidence. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

       “It is a defense to prosecution that the actor through mistake formed a reasonable belief

about a matter of fact if his mistaken belief negated the kind of culpability required for commission

of the offense.” TEX. PENAL CODE ANN. § 8.02(a). Because the mistake-of-fact defense must be

based on a reasonable belief about a matter of fact, the defense is inapplicable where the mistaken

belief is not reasonable. Gant v. State, 814 S.W.2d 444, 452 (Tex. App.—Austin 1991, no writ);

see also Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007). When reviewing the

jury’s rejection of Collins’s mistake-of-fact defense, we must be mindful that the jury, as the trier

of fact, is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Aldeman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to

believe or disbelieve all or any part of any witness’ testimony. Id.; see also Braughton v. State,

No. PD-0907-17, 2018 WL 6626621, at *14 (Tex. Crim. App. Dec. 19, 2018) (“[B]y its implicit

rejection of appellant’s defenses in finding him guilty, the jury necessarily signaled its disbelief in

[appellant’s] testimony as lacking in credibility, and the legal sufficiency standard does not permit

us to substitute our view of the credibility of the witness testimony for the jury’s.”).

       The State was required to prove beyond a reasonable doubt that Collins intentionally or

knowingly threatened Deputy Ashton with a deadly weapon and that Collins knew Deputy Ashton

was a public servant who was lawfully discharging an official duty. See TEX. PENAL CODE ANN.

§§ 22.01, 22.02. The State also bore the burden of persuasion in disproving Collins’s mistake-of-


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fact defense. See Saxton, 804 S.W.2d 913. Here, the jury heard Deputy Ashton’s testimony that

Collins looked directly at him when he pulled up in his marked patrol vehicle. Deputy Ashton

also testified that the sun was rising to his right and was not positioned behind him, thus

contradicting Collins’s testimony that the sun blinded her view. His testimony regarding the

position of the sun was corroborated by the second deputy to arrive at the scene and by video from

the body camera that was shown to the jury. In addition, there were inconsistencies in Collins’s

testimony about who she thought was approaching the house. It was the jury’s role, as the fact-

finder, to reconcile conflicts in the evidence. See Braughton, 2018 WL 6626621, at *11. The jury

was free to believe Deputy Ashton’s testimony and disbelieve Collins. See Aldeman, 828 S.W.2d

at 421. The jury was also able to consider the video evidence and draw reasonable inferences

regarding whether Collins could have reasonably believed Deputy Ashton was not a public servant.

See Braughton, 2018 WL 6626621, at *11. When we view all the evidence before us in the light

most favorable to the verdict, we conclude the jury could have rationally found Collins committed

the aggravated assault and knew that Deputy Ashton was a public servant. In addition, a rational

jury could have found Collins’s mistaken belief—that Deputy Ashton was not a public servant—

was unreasonable and, therefore, rejected her mistake-of-fact defense. See Thompson, 236 S.W.3d

at 800. Thus, the evidence is legally sufficient to support Collins’s conviction for aggravated

assault of a public servant.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                                 Rebeca C. Martinez, Justice

DO NOT PUBLISH




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