Opinion issued January 23, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00350-CR
                          ———————————
                 ANTHONY JEROME GILBERT, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 21st District Court
                        Washington County, Texas
                       Trial Court Case No. 15671



                           DISSENTING OPINION

      A jury convicted appellant, Anthony Jerome Gilbert, of deadly conduct—

discharge of a firearm, and the trial court sentenced him to seventy-five years’

confinement based on a finding that he was an habitual offender. See TEX. PENAL
CODE ANN. § 22.05(b)(1) (Vernon 2011). Because I believe the evidence was

insufficient to support appellant’s conviction under Penal Code section

22.05(b)(1), I respectfully dissent.    I would reverse the judgment and render

judgment of acquittal.

                                  Background

      Appellant was indicted under Penal Code section 22.05 as follows:

      The Grand Jurors for the County of Washington, State of Texas, duly
      selected, impaneled, sworn, charged and organized as such at the
      September Term, A.D. 2009, of the Twenty-first Judicial District
      Court of said County, upon their oaths present in and to said Court
      that ANTHONY JEROME GILBERT, defendant herein, on or about
      the 26th day of September, 2009, and before the presentment of this
      indictment, in said County and State, did then and there knowingly
      discharge a firearm at or in the direction of an individual, namely,
      James Charles Daniels, Sr.

      The indictment was enhanced by a prior conviction for the felony offense of

aggravated assault, committed March 31, 1993, and the felony offense of

aggravated assault of a peace officer, for which appellant was convicted on June

16, 1994.

                                       Analysis

      The indictment alleged that appellant “knowingly discharge[d] a firearm at

or in the direction of an individual, namely, James Charles Daniels, Sr.,” in

violation of Penal Code section 22.05(b)(1). Appellant argues that the evidence




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presented at trial was insufficient to convict him of deadly conduct under

subsection 22.05(b)(1). I agree.

      Penal Code section 22.05, “Deadly Conduct,” provides, in relevant part:

      (a) A person commits an offense if he recklessly engages in conduct
          that places another in imminent danger of serious bodily injury.

      (b) A person commits an offense if he knowingly discharges a firearm
          at or in the direction of:

          (1) one or more individuals; or

         (2) a habitation, building, or vehicle and is reckless as to whether
             the habitation, building, or vehicle is occupied.
      ....

      (e) An offense under Subsection (a) is a Class A misdemeanor. An
          offense under Subsection (b) is a felony of the third degree.

TEX. PENAL CODE ANN. § 22.05(b)(1).

      A person commits the offense of deadly conduct if he knowingly discharges

a firearm at or in the direction of one or more individuals. See id. Deadly conduct

requires intent that falls short of harming another person; that is, although no

physical harm results, the act is highly dangerous. Walker v. State, 994 S.W.2d

199, 203 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). It is not a result-

oriented offense because it does not prescribe a specific result; it requires only that

the actor have engaged in the proscribed conduct. Ford v. State, 38 S.W.3d 836,

845 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see TEX. PENAL CODE

ANN. § 22.05. Because it is not a result-oriented offense, the State can prove the
                                            3
offense merely by proving that the defendant engaged in the conduct without the

additional requirement that a specific result was caused with the requisite criminal

intent. Ford, 38 S.W.3d at 845.

      The appellate courts apply the legal-sufficiency standard of Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979), to determine whether the evidence

is sufficient to support each element of a criminal offense that the State must prove

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010). Under this standard, an appellate court views the evidence “in the

light most favorable to the verdict.” Id. at 899 (quoting Watson v. State, 204

S.W.3d 404, 415 (Tex. Crim. App. 2006)). Viewing the evidence in the light most

favorable to the verdict means that the reviewing court is required to defer to the

jury’s credibility and weight determinations. Id. The evidence is insufficient

under this standard if (1) the record contains no evidence, or merely a “modicum”

of evidence, probative of an element of the offense; or (2) the evidence

conclusively establishes a reasonable doubt. Kiffe v. State, 361 S.W.3d 104, 107

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The jury’s verdict should be

upheld “unless a rational factfinder must have had reasonable doubt as to any

essential element.” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009);

see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S. Ct. 1620, 1625 (1972)




                                         4
(“That rational men disagree is not in itself equivalent to a failure of proof by the

State, nor does it indicate infidelity to the reasonable-doubt standard.”).

      When assessing whether evidence is sufficient to support a conviction, an

appellate court must determine “whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in

the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108 (citing Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Direct and circumstantial

evidence are treated equally, and circumstantial evidence is considered to be as

probative as direct evidence. Id. The appellate court’s duty is “to ensure that the

evidence presented actually supports a conclusion that the defendant committed the

crime that was charged.” Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App.

2010) (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).

“[T]he evidence is insufficient as a matter of law if the acts alleged do not

constitute the criminal offense charged.” Kiffe, 361 S.W.3d at 108.

      “When the record supports conflicting inferences, we presume that the jury

resolved the conflicts in favor of the verdict and therefore defer to that

determination.” Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)

(citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793). However, if the evidence,

when viewed in the light most favorable to the verdict, merely raises a suspicion of

guilt, it is legally insufficient to support a conviction beyond a reasonable doubt.

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Winfrey, 323 S.W.3d at 882. If circumstantial evidence provides no more than a

suspicion of guilt, the jury may not reach a speculative conclusion. Deschenes v.

State, 253 S.W.3d 374, 381 (Tex. App.—Amarillo 2008, pet. ref’d) (citing Allen v.

State, 249 S.W.3d 680, 704 (Tex. App.—Austin 2008, no pet.)).

      Here, the evidence clearly establishes that appellant knowingly discharged a

firearm. Four eyewitnesses testified to seeing him intentionally fire a shotgun

several times. However, there is no more than a scintilla of evidence that appellant

knowingly discharged the shotgun “at or in the direction of an individual, namely,

James Charles Daniels, Sr.,” as charged in the indictment. Rather, all of the

witnesses testified that appellant shot towards the house—including those

witnesses who testified that appellant might have shot at Daniels, among several

other individuals. Discharging a firearm towards a habitation is a separate offense

that was not charged in the indictment.       Compare TEX. PENAL CODE ANN.

§ 22.05(b)(1) (discharging firearm towards individual or group of individuals) with

id. § 22.05(b)(2) (discharging firearm towards habitation with recklessness as to

whether it might be occupied); see also Clinton v. State, 354 S.W.3d 795, 799

(Tex. Crim. App. 2011) (holding that we look to “the hypothetically correct jury

charge” to identify essential elements of crime and that when statute defines

alternative methods of manner and means of committing offense and indictment

alleges only one of those methods, “the law” for purposes of hypothetically correct

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jury charge is single method alleged in indictment). Therefore, if the evidence of

the direction in which appellant fired the shotgun is meager, but the only rational

inference from the totality of the evidence is that he fired at the house—an offense

chargeable under Penal Code section 22.05(b)(2)—the evidence was insufficient as

a matter of law to establish appellant’s guilt under the subsection under which he

was charged—section 22.05(b)(1).

      The evidence was meager as to the direction in which appellant shot the one

shot that was not aimed in the air, but it is clear that the much stronger inference

from the testimony of all the witnesses is that appellant shot at the house—not at

Daniels.      Investigating Officer Snowden testified that Amy Daniels, the

complainant’s wife, said that appellant originally pointed the gun at her husband,

but he pointed the gun away from the direction of Mr. Daniels before firing the

second shot. All witnesses stated that appellant fired the first shot in the air.

Officer Snowden further testified, “[I]t appeared that there was a gun shot, a

shotgun spread of the little BBs or little pellets, on the window to the far right of

the house.”

      Daniels, the complainant, himself testified:

      The trunk was popped and [appellant] ran back to the trunk and got a
      shotgun, he loaded it, and he shot in the air two times and then the
      next shot was towards my house by the window. . . . I was standing
      right here on the side of the corner, by the porch, and then I had
      peeked around and he had fired the shot and he hit the window. And
      we just all fell down then on the front porch.
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      In short, the complainant testified that he did not even peek around the

corner of the porch where he and his family were all gathered until after appellant

had fired a single shot at the house. Daniels further testified that the shotgun blast

hit “on the second window.” And he testified that appellant aimed “at the house”

and shot, and he did not know whether “it was at the house or me.”

      Willie Mathis likewise testified that appellant “didn’t fire the gun at the

house, he shot it on the side of the house”; that he shot “at the porch”; that “[h]e

shot on the side of the house”; that he shot “at the house”; and that Daniels was “in

the house” when appellant shot “that one time.”

      Earline Mathis testified that appellant “just went up under this trunk and got

the gun and started shooting. My husband was on the porch, and I dived in the

house on the floor, and the kids was in the bedroom while he shot it.” She further

testified that “there was holes up there by the windows and stuff where he could

have shot my husband”; that appellant “shot right where the kids were in their

rooms,” “towards the bedroom in the house,” and “[a]t the porch, right there by the

window, by the bedroom”; that “my husband was sitting right here and he shot

right here at this window here where the kids were in the bedroom”; that “he shot

at the window that’s closest to the porch”; and that “I just know that he shot at the

window right there by the porch.”




                                          8
      Finally, Amy Daniels testified that appellant “got out of the car, he popped

the trunk, he pulled a gun, he fired once I think in the air and then two more times

at the house. One time was where my husband was walking towards the house.”

She further testified,

      When [appellant] first pull up [the complainant] went out there to try
      to talk to [appellant], but [appellant] didn’t have no understanding
      because he pulled his gun and he fired. [The complainant] was
      walking back toward the house and [appellant] fired again, and then
      he fired one last time. He picked up the shells, got in the car and
      drove off.”

“It was hard to tell” what appellant was shooting at “because it was kind of dark.”

But, she testified that appellant shot towards “[t]he house.”

      There was literally no clear, direct, positive testimony from any eyewitness

or from any investigating officer that appellant was shooting “at” the complainant.

While some of the testimony can be construed as stating that he was shooting “in

the direction of” the complainant, all of that same testimony confirms that

appellant shot twice in the air and fired only one shot “in the direction of” and

indeed “at” the house that was occupied by Daniels and others. This testimony that

appellant discharged a firearm towards a habitation with recklessness as to whether

that habitation was occupied—an offense chargeable under Penal Code section

22.05(b)(2)—does not support his conviction for discharging a firearm toward an

individual—an offense charged under Penal Code section 22.05(b)(1) and alleged

in the indictment. The evidence, then, when viewed in the light most favorable to
                                          9
the verdict, merely raises a suspicion that appellant was shooting at the

complainant. Thus, the only rational inference from the testimony regarding the

direction in which appellant shot the one shot that was not aimed into the air was

that he discharged the shotgun at the house.

      This evidence is insufficient to do more than merely raise a suspicion that

appellant was guilty of the crime charged; it is, therefore, insufficient to support

appellant’s conviction beyond a reasonable doubt. See Winfrey, 323 S.W.3d at

882; Deschenes, 253 S.W.3d at 381. Thus, I would hold that the trier of fact could

not rationally have found beyond a reasonable doubt the essential element that

appellant shot at or in the direction of the complainant as alleged in the indictment.

See Winfrey, 323 S.W.3d at 882; Deschenes, 254 S.W.3d at 381.




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                                    Conclusion

      I would hold that the evidence was insufficient to support appellant’s

conviction for knowingly discharging a firearm at or in the direction of an

individual, namely, James Charles Daniels, Sr. Therefore, I would reverse and

render judgment of acquittal.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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