Affirmed and Memorandum Opinion filed September 24, 2013.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-12-00770-CR

                         KEFENTSE JUBA, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 208th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1275670

                 MEMORANDUM                       OPINION

      A jury convicted appellant of aggravated assault and sentenced him to prison
for two years, but recommended community supervision. The trial court followed
the jury’s recommendation and suspended appellant’s sentence for two years.
Appellant filed a notice of appeal. We affirm.

      In his first issue, appellant claims the trial court erred in denying his motion
to quash the indictment. Specifically, appellant argues the indictment failed to
allege with reasonable certainty the act relied upon to constitute recklessness.

       We review a trial judge’s decision to deny a motion to quash an
indictment de novo. See Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App.
2010). A motion to quash should be granted only when the language concerning
the defendant's conduct is so vague or indefinite as to deny the defendant notice of
the acts he allegedly committed. Miller v. State, 333 S.W.3d 352, 356 (Tex.App.-
Fort Worth 2010, pet. ref'd) (citing DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.
Crim. App.          1988)).          Article 21.15 of the Texas Code of Criminal
Procedure requires additional language in the charging instrument when it is
alleged that the accused acted recklessly.1 State v. Rodriguez, 339 S.W.3d 680,
682 (Tex. Crim. App. 2011); see also Tex. Code Crim. Proc. Ann. art. 21.15 (West
2009). However, it is unnecessary for the State to allege facts that are merely
evidentiary in nature. Stadt v. State, 120 S.W.3d 428, 442 (Tex. App.—Houston
[14th Dist.] 2003) aff'd, 182 S.W.3d 360 (Tex. Crim. App. 2005). It is only
required that an indictment allege conduct a jury could rationally find to be
reckless under the circumstances of this case. Id.

       The indictment alleges appellant “did then and there unlawfully, and
recklessly cause serious bodily injury to MEAGHAN HANKS, hereinafter called
the Complainant, by SHOOTING THE COMPLAINANT WITH A DEADLY
WEAPON, NAMELY, A FIREARM.” In the instant case, the indictment alleges
appellant caused serious bodily injury, the offense, by shooting the complainant

       1
           Article 21.15 provides:
       Whenever recklessness or criminal negligence enters into or is a part or element of any
offense, or it is charged that the accused acted recklessly or with criminal negligence in the
commission of an offense, the complaint, information, or indictment in order to be sufficient in
any such case must allege, with reasonable certainty, the act or acts relied upon to constitute
recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the
accused, in committing the offense, acted recklessly or with criminal negligence.

                                                 2
with a firearm, the act relied upon to constitute recklessness.       We therefore
conclude the indictment adequately informed appellant of the act constituting
recklessness. See Cruz v. State, 838 S.W.2d 682, 684 (Tex. App. —Houston [14th
Dist.] 1992, pet. ref’d) (indictment alleging accused caused bodily injury by
striking her with his body and causing her to fall to the floor was sufficient).
Accordingly, the trial court did not err in denying the motion to quash. Appellant’s
issue is overruled.

      Appellant’s second issue asserts the evidence is legally insufficient to
support a finding appellant acted recklessly. The complainant, Meagan Hanks,
testified that appellant loaded the gun with a single bullet, spun the chamber,
closed it, and put the gun to his head. Appellant then pointed the gun at his three
friends and at Hanks. Hanks turned around and began watching the television.
She then heard the gun fire. Hanks was shot in the back through the chair.

      William Moore testified that appellant had shown him the gun two months
before Hanks was shot. Before appellant handed the gun to Moore, he unloaded
the bullets. Dewon Pullen testified that on the afternoon Hanks was shot, appellant
brought out the gun to show his friends. On that occasion as well, before handing
them the gun appellant made sure it was unloaded and even showed them the
empty chambers.

      Appellant points to the fact that he placed the loaded gun to his own head
and allowed his friends to handle the gun unsupervised as evidence that he was not
aware of the risk. However, the evidence shows appellant unloaded the gun before
handing it to anyone else, but the gun was loaded when appellant handled it. The
fact that appellant was willing to have the gun loaded when it was in his hands,
thought not when his friends were in possession of it, indicates awareness of the
risk the loaded gun posed.

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      "Evidence that a defendant knows a gun is loaded, that he is familiar with
guns and their potential for injury, and that he points a gun at another, indicates a
person who is aware of a risk created by that conduct and disregards the risk."
Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985); Trujillo v. State,
227 S.W.3d 164, 168 (Tex.App.—Houston [1st Dist.] 2006, pet. ref’d). Such a
person is at least reckless. Thomas, 699 S.W.2d at 850; Trujillo, 227 S.W.3d at
168. We find the evidence here shows appellant was, at the very least, aware of
the risk associated with his conduct. Appellant’s second issue is overruled.

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Brown, Christopher, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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