                          NUMBER 13-17-00005-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JHERYL RAY MANCILLAS,                                                       Appellant,

                                               v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 105th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION

       Before Justices Contreras, Longoria, and Hinojosa
           Memorandum Opinion by Justice Hinojosa

      Appellant Jheryl Ray Mancillas appeals his convictions for three counts of

aggravated assault against a public servant, a first-degree felony, see TEX. PENAL CODE

ANN. § 22.02(a)(2), (b)(2)(B) (West, Westlaw through 2017 1st C.S.), and one count of

unlawful possession of a firearm, a third-degree felony. See id. § 46.04(a)(1), (e) (West,
Westlaw through 2017 1st C.S.).               The jury returned a guilty verdict and assessed

punishment at twenty-five years’ imprisonment for the aggravated assault counts, and

five years’ imprisonment for unlawful possession of a firearm, with each sentence to be

served concurrently. In two issues, 1 Mancillas complains that (1) his convictions are

supported by legally insufficient evidence; and (2) the trial court erred in denying his

motion to sever the offense of unlawful possession of a firearm. We affirm.

                                             I. BACKGROUND

        Mancillas was charged by indictment with three counts of committing aggravated

assault with a deadly weapon against three police officers and one count of unlawful

possession of a firearm. See id. §§ 22.02 (b)(2)(B); 46.04 (a)(1). On the count of

unlawful possession of a firearm, the indictment stated that Mancillas was previously

convicted of the felony offense of possessing a prohibited substance or item in a

correctional facility. See id. § 38.11 (West, Westlaw through 2017 1st C.S.). The trial

court denied Mancillas’s motion to sever the unlawful possession of a firearm count.

        Melisa Soliz, Mancillas’s mother, testified that he suffered from schizophrenia and

bipolar disorder. According to Soliz, Mancillas’s mental health was deteriorating due to

the loss of Mancillas’s grandmother, discontinuation of his schizophrenia and bipolar

medications, and the use of synthetic marijuana.                  Soliz testified that Mancillas was

speaking to his grandmother as if she were still alive, talking to himself, and threatening



        1 Mancillas identifies as a separate issue that he was “wrongfully charged with an aggravated
assault simply because he was alleged to exhibit a deadly weapon in the presence of a peace officer.”
However, this issue is not developed separately in the argument section of his brief, and it is not supported
by authority. Therefore, the issue is waived as it is inadequately briefed. See TEX. R. APP. P. 38.1(i).
Nevertheless, we will address the thrust of his argument to the extent it relates to his legal sufficiency
challenge.
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to shoot any police officer that came to his house. As a result, Soliz obtained a mental

health detention warrant from Nueces County Justice of the Peace Robert Balderas.

Judge Balderas instructed Soliz call the police to execute the detention warrant.

      After a 911 call, officers Robert Dorsch, Douglas May, and Adam Villarreal from

the Corpus Christi Police Department (CCPD) met Soliz at a restaurant down the street

from Mancillas’s residence.    Soliz spoke with Officer Dorsch and informed him of

Mancillas’s psychological problems. She also warned him that Mancillas might have a

gun. Soliz gave Officer Dorsch a key to the residence and explained where Mancillas’s

room was located.

      Officer Dorsch testified that he and the other officers went to Mancillas’s house to

serve the mental health detention warrant. When they entered the residence, Officer

Dorsch saw Mancillas retreat down a hallway into a bedroom.               Officer Dorsch

approached the room and began negotiating with him to “open up his door and come out.”

Officer Dorsch was the main speaker throughout the negotiation process. During this

time, Mancillas stated that he possessed a gun. Officer Dorsch convinced Mancillas to

place the gun in the closet. After over an hour passed, Officer Dorsch gained entry to

the room. He instructed Mancillas to remove his hand from his pocket. When Mancillas

removed his hand, Officer Dorsch saw that he was holding a gun, which he pointed at

Officer Dorsch and the other two officers.      Officer Dorsch characterized Mancillas’s

actions as “fanning” the gun, “like he didn’t know who to shoot it at.” He then heard a

loud popping sound which caused him and the two other officers to fire their weapons at

Mancillas, striking him in his hand, elbow, and stomach. Officer Dorsch and the other


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officers then administered first aid to the injured Mancillas.

       Officer May testified that he was in a bathroom across the hall from Officer Dorsch

and Mancillas. Officer May heard Officer Dorsch state, “Don’t do it. Don’t do it. Don’t

do it.” He then entered the room where he saw Mancillas with a gun “up in the air,

pointing at” Officers Dorsch and Villarreal. Officer May heard gunfire, and he responded

by shooting Mancillas with his rifle. Officer May later recovered Mancillas’s gun and

removed it from the area.

       Officer Villarreal testified that he was located in a bedroom across the hallway from

Officer Dorsch and Mancillas. After Officer Dorsch entered Mancillas’s room, Officer

Villareal heard him say, “Let me see your hands.” Officer Villarreal then entered the

room and observed Mancillas holding a small caliber pistol.         Mancillas then took a

“bladed stance,” while bringing the gun up.       Officer Villarreal responded by firing his

weapon at Mancillas, who fell on the bed. Officer Villarreal saw that Mancillas was

bleeding and placed a tourniquet on his arm. He also applied pressure with a bandage

to another wound.

       Cara Shrader, a CCPD crime scene investigator, examined the firearm recovered

from the residence. She testified that there was a live round with a “strike mark” in the

chamber of the gun. She explained, “when you shoot it, the fire pin will strike the back

of the cartridge, which becomes a casing, and it leaves a primer mark on it, indicating that

it has been shot[.]” She believed this indicated “a misfire or the gun . . . goes wonky and

just doesn’t shoot[.]”

       David Curtiss, a CCPD firearms examiner, identified Mancillas’s gun as a Taurus


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.22 caliber semi-automatic pistol.         Curtiss stated that a live round was found in the

chamber of the weapon and that the round had “a slight firing pin impression made right

across the headstamp.” When asked why the round was not fired, Curtiss answered as

follows:

        The firearm could have malfunctioned. The ammunition could have been
        defective. There could have been something that was blocking the firing
        pin from striking the breached face of the cartridge. Those are the only
        three reasons that I can think of[.]

        During both opening and closing statements, Mancillas, through his attorney,

conceded that he unlawfully possessed a firearm. Further, the State presented evidence

that Mancillas could not possess a firearm due to a prior conviction for the offense of

possessing a prohibited substance or item in a correctional facility.                 The jury found

Mancillas guilty on all counts. This appeal followed.

                                       II. LEGAL SUFFICIENCY

        By his first issue, Mancillas challenges the legal sufficiency of the evidence

supporting his convictions for aggravated assault. 2

A.      Standard of Review and Applicable Law

        When examining the legal sufficiency of the evidence, we consider the combined

and cumulative force of all admitted evidence in the light most favorable to the conviction

to determine whether, based on the evidence and reasonable inferences therefrom, any

rational trier of fact could have found each element of the offense beyond a reasonable

        2 Mancillas presents no argument concerning the sufficiency of the evidence supporting his
conviction for unlawful possession of a firearm. Therefore we will not address this contention. See id.
Further, Mancillas purports to challenge both the legal and factual sufficiency of the evidence. However,
the Texas Court of Criminal Appeals has abolished factual sufficiency review. See Howard v. State, 333
S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim.
App. 2010) (plurality op.)). Therefore, we will address only Mancillas’s legal sufficiency challenge.
                                                   5
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805,

808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the

jury as factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from facts. Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d).

       We measure the legal sufficiency of the evidence against the elements of the

offense as defined by a hypothetically correct jury charge for the case. Byrd v. State,

336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). “Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”     Id. (internal quotation marks

omitted).

       A person commits an assault if the person “intentionally or knowingly threatens

another with imminent bodily injury[.]”   TEX. PENAL CODE ANN. § 22.01(a)(2) (West,

Westlaw through 2017 1st C.S.). The Texas Penal Code defines “bodily injury” to mean

“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West,

Westlaw through 2017 1st C.S.). It is well settled that a threat may be communicated by

action, conduct, or words. See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim.

App. 1984); Jones v. State, 500 S.W.3d 106, 113 (Tex. App.—Houston [1st Dist.] 2016,

no pet.). “[T]here must be some evidence of a threat being made to sustain a conviction

of assault by threat.” Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006). The


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crucial inquiry is “whether the assailant acted in such a manner as would under the

circumstances portend an immediate threat of danger to a person of reasonable

sensibility.” Id. at 347.

       An assault is elevated to an aggravated assault if the person “uses or exhibits a

deadly weapon during the commission of the assault.”              TEX. PENAL CODE ANN.

§ 22.02(a)(2). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A) (West,

Westlaw through 2017 1st C.S.); Williams v. State, 502 S.W.3d 262, 270 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). An aggravated assault is a first-degree felony if it

is committed “against a person the actor knows is a public servant while the public servant

is lawfully discharging an official duty[.]” TEX. PENAL CODE ANN. § 22.02(b)(2)(B).

B.     Analysis

       Mancillas argues that “[b]y only pointing a gun, at most [he] should have been

charged and/or convicted of Assault against a Peace Officer[.]” Mancillas maintains that

“[i]n order for [him] to be convicted of Aggravated Assault, the [S]tate would have to prove

that [he] pointed his gun and fired shots.” Accordingly, he argues the evidence is legally

insufficient because “the prosecution presented no evidence that [Mancillas] fired any

shots.” We disagree.

       Texas courts, including this one, have consistently held that the act of pointing a

loaded gun at an individual is, by itself, threatening conduct which supports a conviction

for aggravated assault. See Jones, 500 S.W.3d at 113; Fagan v. State, 362 S.W.3d 796,

799 (Tex. App.—Texarkana 2012, pet. ref’d); Sosa v. State, 177 S.W.3d 227, 231 (Tex.

App.—Houston [1st Dist.] 2005, no pet.); Cantu v. State, 953 S.W.2d 772, 775 (Tex.


                                             7
App.—Corpus Christi 1997, pet. ref’d); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.

App.—Amarillo 1997, no pet.); Preston v. State, 675 S.W.2d 598, 601 (Tex. App.—Dallas

1984, pet. ref’d).   The evidence viewed in the light most favorable to the verdict

establishes that Mancillas pointed a loaded firearm at the responding officers. One

officer described Mancillas’s actions as “fanning” the gun, “like he didn’t know who to

shoot it at.” Officer Dorsch described hearing a popping sound, which is consistent with

other evidence that Mancillas’s gun misfired. A rational jury could have concluded from

this evidence that Mancillas “acted in such a manner as would under the circumstances

portend an immediate threat of danger to a person of reasonable sensibility.” Olivas,

203 S.W.3d at 347; see TEX. PENAL CODE ANN. § 22.01(a)(2). Mancillas’s use of a per

se deadly weapon—a firearm—during the assault elevates the offense to an aggravated

assault.   See TEX. PENAL CODE ANN. § 22.02(a)(2).       And it is undisputed that the

aggravated assault was committed against public servants lawfully disgorging official

duties. See id. § 22.02(b)(2)(B).

      We conclude that the evidence is legally sufficient to support Mancillas’s

convictions for aggravated assault of a public servant. See Jackson, 443 U.S. at 319;

Ramsey, 473 S.W.3d at 808. We overrule Mancillas’s first issue.

                                    III. SEVERANCE

      By his second issue, Mancillas argues that the trial court erred in denying his

motion to sever the unlawful possession of a firearm offense.

A.    Standard of Review and Applicable Law

      Section 3.04 of the penal code allows a defendant to obtain a severance of most


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criminal charges that have been consolidated for trial under section 3.02. See TEX.

PENAL CODE ANN. §§ 3.02, 3.04 (West, Westlaw through 2017 1st C.S.). Unless the

charges fall into one of the statutory exceptions, none of which are relevant here, the

defendant’s right to a severance is “absolute” and the trial judge has no discretion to deny

the motion. Werner v. State, 412 S.W.3d 542, 546–47 (Tex. Crim. App. 2013). This

rule reflects two concerns: that the jury will convict a defendant because of his prior or

subsequent misdeeds, or that the jury will infer that because the accused committed other

crimes, he probably committed the charged offense. Id. at 547.

       If the trial court erroneously denied a motion to sever, we review the record for

harm under the Rule 44.2(b) standard for non-constitutional error.         Id.   Under this

standard, appellate courts must disregard the error unless it affected the appellant’s

substantial rights. TEX. R. APP. P. 44.2(b); Werner, 412 S.W.3d at 547. Neither party

has the burden to demonstrate harm; “instead, we assess harm after reviewing the

entirety of the record, including the evidence, jury charge, closing arguments, voir dire,

and any other relevant information.” Id. (citing Schultz v. State, 63 S.W.3d 442, 444–45

(Tex. Crim. App. 2001)). We will not overturn a criminal conviction for non-constitutional

error if, after examining the record as a whole, we have fair assurance the error did not

influence the jury, or influenced the jury only slightly. Barshaw v. State, 342 S.W.3d 91,

93 (Tex. Crim. App. 2011).

       In determining harm resulting from the failure to sever offenses, the overlap of

evidence is the most important factor. Werner, 412 S.W.3d at 549. When there is no

overlap of evidence between the two charges, the error is most likely to be harmful. Id.


                                             9
at 548. When there is a substantial overlap of evidence between the two charges, the

failure to sever is most likely to be harmless. Id. at 548–49. In other words, the State

should not be permitted to try “an ‘apples’ offense along with an unrelated ‘oranges’

offense in the hope that the jury [will] find the defendant guilty of being a generally bad

sort.”   Id. at 548.     Another relevant factor to take into consideration is whether the

defendant’s trial strategy would have been different if the severance was granted. See

id. at 548 n.35; Scott v. State, 235 S.W.3d 255, 261 (Tex. Crim. App. 2007).

B.       Analysis

         We agree with Mancillas that the trial court erred when it denied his request to

sever the offense of unlawful possession of a firearm by a felon. Mancillas made a timely

request which apprised the court that he wished to invoke his right to a severance, and it

was error for the trial court to deny it. See Werner, 412 S.W.3d at 546.

         Having found error, we begin our harm analysis by assessing the extent that the

evidence supporting the charges overlapped. See id. at 547 (describing the overlap of

evidence as “the most important factor” in this analysis). The charges arose from the

same criminal transaction, and each count required proof that Mancillas was in

possession of a firearm. Therefore, this is not a case where there was no overlap

between the charges. However, to prove unlawful possession of a firearm, the State

was required to present evidence of Mancillas’s prior felony conviction. 3 To meet its




        3 A person who has been convicted of a felony commits an offense if he possesses a firearm “after

conviction and before the fifth anniversary of the person’s release from confinement following conviction of
the felony or the person’s release from supervision under community supervision, parole, or mandatory
supervision, whichever date is later[.]” TEX. PENAL CODE ANN. § 46.04(a)(1) (West, Westlaw through 2017
1st C.S.).
                                                    10
burden, the State presented evidence that Mancillas was previously convicted of a felony

offense under penal code section 38.11, entitled “Prohibited Substances and Items in

Correctional Facility.”   See TEX. PENAL CODE ANN. § 38.11.           Had this count been

severed, the jury hearing the aggravated assault counts would not have heard evidence

of Mancillas’s prior conviction. We note, however, that very little of the trial was devoted

to Mancillas’s prior conviction. The trial court admitted the judgment into evidence. But

other than a fleeting reference during closing argument, the State presented no further

evidence or testimony concerning the details and existence of the prior conviction. There

is nothing in the record to suggest that the jury convicted appellant of aggravated assault

simply because he was a “bad sort.” Cf. Llamas v. State, 12 S.W.3d 469, 471–72 (Tex.

Crim. App. 2000) (concluding that appellant suffered reversible harm from trial court’s

failure to sever drug charge from unrelated motor-vehicle charge because, among other

factors, the jury expressed concerns that evidence relating to the drug charge would color

their inquiry into the defendant’s guilt for the motor-vehicle charge).

       Further, Mancillas does not argue that his defensive strategy might have been

different had the charges been severed.           See Werner, 412 S.W.3d at 548 n.35

(considering lack of evidence regarding defensive strategy in considering whether

appellant had shown harm in denial of severance). Finally, we observe that the evidence

of Mancillas’s guilt on the aggravated assault counts was overwhelming. See id. at 549–

51 (“Overwhelming evidence of guilt is a relevant factor in any Rule 44.2(b) harm

analysis[.]”).   As set out in our review of the sufficiency of the evidence, the State

presented evidence, including corroborating testimony from three officers, establishing


                                             11
that Mancillas pointed a loaded gun at the officers and attempted to fire the weapon.

There was no evidence presented contradicting the officers’ account.

       This case does not present a scenario where an “apples” offense was tried along

with an unrelated “oranges” offense. See id. at 548. Having examined the record, we

have fair assurance that the error did not influence the jury, or influenced the jury only

slightly. See Barshaw, 342 S.W.3d at 93. Accordingly, we conclude that the error was

harmless. We overrule Mancillas’s second issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                              LETICIA HINOJOSA
                                                              Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of July, 2018.




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