BENNIE RAY JONES, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED; Opinion issued September 5, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00928-CR
............................
BENNIE RAY JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-49583-KN
.............................................................
OPINION
Before Chief Justice Thomas and Justices FitzGerald and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Bennie Ray Jones was convicted of aggravated assault with a deadly weapon. See Tex. Pen. Code. Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006). The jury assessed punishment, enhanced by two prior felony convictions, at twenty-nine years' imprisonment. In three points of error, appellant contends the evidence is legally and factually insufficient to support the conviction and the trial court erred in admitting extraneous offense evidence. We affirm the trial court's judgment.
 
Facts
 
        On February 17, 2005, Johnny Tyler, Jr. a/k/a J. T., the complainant Clyde Walter a/k/a “Slim,” Bobby Lynn Anderson, Donna Sue Goff, and appellant a/k/a “Smoky” all lived in side-by- side boarding houses in the 4400 block of Elm Street in Dallas.   See Footnote 2  One was a one-story building and the other a two-story. The aggravated assault occurred on the front porch of the one-story boarding house.
        Tyler testified he was forty-three years old, had lived in Dallas thirteen years, and was a musician. Tyler lived upstairs in the two-story building in room number eight. Walter lived in the one-story building. Tyler had known appellant for a couple of months at the time of the offense. Tyler also knew Walter. Appellant and Walter had “issues.” They had had “run-ins” before, but it did not “quite get to fights.” Tyler thought appellant was jealous of Walter and Goff, who lived across from Walter. Appellant was possessive of Goff and confronted a lot of people about her.
        On the date of the offense, Tyler and Walter were standing next to each other on the front porch, talking.   See Footnote 3  Around 7:30 p.m., appellant came walking down the sidewalk, which was pretty close to the porch. When appellant saw Walter, words were exchanged between them. Appellant said, “Look at that Bitch-Ass nigger.” At first, appellant did not come toward them. Instead, he went toward the trash dumpster. Appellant grabbed a pipe and tried to strike Walter with it.   See Footnote 4  Tyler felt threatened when he saw the pipe. Because of an injury, Walter uses a cane. Walter raised his cane to block appellant's strike. As the cane came down, it hit appellant's hand. The two men then began to “tussle.” Tyler and Tommy Hicks a/k/a “T-Boy” broke up the fight.   See Footnote 5  Tyler took the pipe, threw it to the side, and went into the house. The police later came, in response to a call from Walter.
        Appellant had a “day job,” but he also worked part-time as a maintenance man for the boarding house owner, Bonnie Taylor. Appellant had some “run-ins” with Walter and Tyler before. Tyler denied that he, Hicks, or Walter were doing anything at the boarding house to make money.   See Footnote 6  Appellant complained about the number of people coming in and out of the buildings. Appellant “possibly” suspected drug activity. Tyler denied that appellant had ever told them he thought they were dope dealers. Tyler also denied there was traffic in the middle of the night coming to his apartment. Appellant once asked Walter why he had company. Walter responded that it was because he was a single man. Tyler also denied Walter hit appellant first with the cane. Appellant hit Walter one time in the hand. Tyler denied taking $34 and a pack of cigarettes from appellant while he and Hicks were breaking up the fight. Tyler had been drinking beer. Hicks and Walter had not been drinking.
        Walter testified he was fifty years old, had lived in Dallas for thirty-three years, and had a “run-in” with appellant on February 17, 2005.   See Footnote 7  At that time, Walter lived in apartment number three on the first floor.   See Footnote 8  Walter had been injured “on the job,” and had three surgeries between 1997 and 2002. As a result, he uses a cane and gets a disability check. Walter did not think he and appellant had any problems. “[T]hen all of a sudden” appellant changed and got kind of a “rude attitude.” Appellant thought something was going on between Walter and appellant's girlfriend, Goff, who lived next door to Walter. A couple of times before February 17, appellant had approached Walter like appellant wanted to fight. Appellant called Walter names and asked him if he was “messing with his woman.” Walter denied, however, that he jumped on appellant about a week before the offense. Walter explained that appellant had “come out the office door and grabbed [him];” that he told appellant he didn't play like that, and they “just braced each other and turned a loose.”
        On the date of the offense, appellant walked down the sidewalk, called Walter names, ran to a trash can that was by the porch, got a pipe, and hit Walter with it. It caused Walter pain. If Walter had not had the cane in his hand, he was pretty sure the pipe could have killed him, or hurt him “real seriously bad.” Walter felt threatened by the pipe-the pipe was coming right at his head before he blocked it. Walter had his cane in his hand, and when he threw his hand up to block the strike, the cane hit appellant's hand. Walter grabbed the pipe.
        Walter did not have a telephone, so he went to a 7-11 store to call the police. The paramedics came and bandaged him up. When the police arrived, Walter directed them to the pipe, which was by the dumpster. The police went into the house and brought appellant out. Walter denied selling drugs at the boarding houses. Walter was convicted of the felony offense of criminally negligent homicide in 1998 and sentenced to four years in the penitentiary.
        Dallas police officer Joshua Merkel testified that on February 17, at about 8:00 p.m., he and his partner Joe Guzman responded to a call that someone had been assaulted with a pipe at 4401 Elm. When Merkel arrived, the paramedics had already been there.   See Footnote 9  The paramedics had bandaged a laceration on Walter's left thumb. Walter also complained of his groin and his head hurting, but he did not appear to be intoxicated. There were six or seven people present when the officers arrived, but the people “scattered” when they saw the police. The police did not get the names of any of the people. Merkel did not speak to anyone except Walter, who told Merkel what had happened. Walter told Merkel he fell to the ground and hurt his head when the pipe came into contact with his hand. Walter said appellant repeatedly kicked and punched Walter in the head. An unidentified female told Merkel the weapon appellant used was behind a trash bin in front of the location. Merkel arrested appellant at 9:40 p.m. Appellant did not appear intoxicated. Merkel testified the pipe could be used as a deadly weapon and could cause serious bodily injury or death.
        Bobby Lynn Anderson testified for the defense. Anderson testified he was born on June 26, 1953, has worked off and on for six years for Landscape Lighting of Dallas, and does a variety of work. On February 17, Anderson was living in apartment number five of the two-story boarding house at 4401 Elm.   See Footnote 10  Anderson knows appellant as Smoky and has known him for about twenty years. The two men are not related, but they have worked together in the past and are friends. Appellant lived in the one-story building at 4405 Elm. Anderson also knows Walter, who lived on the first floor in Anderson's building. Tyler lived upstairs over Walter in Anderson's building. Anderson has known Hicks for ten or fifteen years.
        Anderson did not know Walter very well, but would see him around every day. Walter once borrowed a dollar from Anderson and took a month to repay it. Anderson then said, “That's all I really know about him, other than some other things.” When asked what other things, Anderson said Walter was “into drugs-heavy every day, every night.” Walter was a walking drug dealer. Walter deals in drugs, “sleep all day, roam all night.” Anderson knew this personally because he saw it every night. Anderson testified the same thing was true of J. T. They were drug users and drug dealers. They dealt in drugs. According to Anderson, Tyler would be dealing upstairs and Walter would be dealing downstairs. Anderson also testified Walter was a “smoker, a heavy smoker. He was a runner. He goes around the corner 10 times a night, at least, to get the drugs for other peoples and stuff. J. T., I know personally sold drugs out of his apartment, his room.” The drug dealing caused a lot of traffic. Appellant had a problem because it brought more work on him, and he was trying to control it. Bonnie had asked appellant to keep the doors locked. When appellant locked the doors this led to problems between the men. About two weeks before the offense, appellant and Walter got into a shoving match. According to Anderson, there “ain't nothing wrong with [Walter].” He uses the cane as a weapon.
        Anderson did not see, but did hear, what happened on the porch on February 17. Appellant had just left Anderson's place. Appellant was concerned about things that had been going on around there. Anderson told appellant to stay out of it-to leave it alone. When appellant left Anderson's apartment on February 17, Anderson assumed he was going home. Anderson told appellant not to say anything to “them guys” because they were going to gang up on him. By “they” he meant “J T., T-Boy, and Clyde.” Anderson could hear them downstairs. Anderson heard a lot of cursing back and forth between Walter and appellant.
        Anderson further testified appellant was not guilty of delivering drugs, although he may have been convicted of it. Anderson admitted he never saw any drugs at all. He said appellant was “just a talker,” that he would not harm a fly. After appellant was arrested for the aggravated assault, the drug dealers had their way. When appellant was there, he was controlling “it,” and that is what led to the animosity between the men.
        Anderson also knows Goff, who “forgets a lot.” She lived next door to Walter. Goff and appellant were good friends and appellant “looked out for her.” Appellant told Anderson he thought they were giving her drugs. However, appellant was not jealous or possessive of Goff.
        Goff testified she was forty-four years old. In February 2005 she lived at 4401 Elm in apartment number four. Walter lived in apartment number three and was her neighbor. Goff has had seizures and sometimes has problems with her memory. She knows Tyler, Anderson, and appellant, whom she knows as Smoky. Goff had been living there a couple of years, but she moved out in 2003. She is a good friend of appellant's and once she referred to him as her “boyfriend.” He is like a brother to her. Goff believed Walter just begged to make money. She knew of him doing drugs, and he had a lot of traffic.
        On the date in question, Goff was on the front porch. She thought Walter and appellant had a confrontation-it just seemed like Walter approached appellant and threatened him. Walter ran and got something and came back at appellant. She thought Walter was using a cane and that he hit appellant with it. Goff did not remember what appellant did. She did not see appellant holding a pipe. She thought a guy named Nathaniel was there. Nathaniel could not stand her. She was not allowed to sit on the porch in the house they lived in. Goff was having “tussles” with Nathaniel. Nathaniel threatened her, but Walter and Nathaniel were “tight.”
        Appellant testified in his own behalf. He testified he was forty-five years old, from Monroe, Louisiana, went to the ninth grade in school, and came to Dallas in about 1975. In 1980, appellant was convicted of aggravated assault on a police officer and went to the penitentiary for three months.   See Footnote 11  He was then put on probation. Appellant got out of prison in 1989, then got in trouble and went to jail for another assault. He stabbed a guy, but he was not convicted of that. Appellant went back to prison twice before this current offense. On one occasion, appellant had his nephew's “Ninja star” and went to a store. The police saw him and arrested him for carrying a prohibited weapon. In 1991, appellant “copped” for theft over $750. In 1995, he was arrested on a drug delivery case. His brother had actually sold an undercover cop fake drugs. Appellant was put on ten years' probation in 1997. That probation was revoked in 2002. Appellant was sentenced to four years, but did two. He never reported as directed. Appellant was on parole at the time of trial in this case. He had been in jail since he was arrested for the offense.
        In February 2005, appellant lived in the one-story building at 4401 Elm. Appellant had lived in the boarding house since 2003 and he knew all of the people who had previously testified. Goff was bringing traffic like the rest of them doing prostitution. Before Tyler and Walter moved in, appellant had gotten rid of all the drug dealers. At first, appellant helped Tyler, but then appellant had trouble with Tyler when he started selling drugs. Appellant was using drugs at the time, and he had bought drugs from Tyler lots of times. Before he went to “rehab,”appellant bought dope from a lady that came over there. His boss knew he was doing dope.
        Appellant testified that Walter gets a check. He's a “smoker.” Walter gets people to come in his room and do drugs. He lets them use the facilities and they give him drugs. He is a “runner,” which means he goes for drugs. Appellant further testified that Walter was not disabled, but was capable of working and did work. Once Walter had scraped a house for appellant to prepare it for painting. Appellant had problems with Tyler and Walter because “one of them was selling dope” and “the other one just had a lot of traffic.”
        Appellant and Hicks are good friends in a way. Appellant tried to help Hicks. “Hicks won't work; he'd rather steal.” Tyler let Doug in and Doug stole a bunch of lawn mower equipment. Doug “hangs” up there with Tyler and does drugs. Appellant followed Doug up the stairs once and Tyler hit appellant, protecting Doug. Appellant knocked Tyler to the floor. Appellant has had problems with the people before. He started calling the police. The police would come out and make arrests. After that Tyler started letting people come in the back.
        Appellant testified that on February 17 at about 6:30 or 7:00 p.m. the following occurred:
 
[Goff], she was out there drinking. Everybody was out there drinking. And one thing led to another. I left to go to the store to get some more beer, and [Hicks] said, man, bring me a beer. I said, man, I just bought you a beer. I said, I ain't got nothing for your old punk ass. Excuse me, the language. But by the time I said that [Walter] called me all kinds of names. You know, he called me-he said, you old bitch ass nigger, you can by [sic] some beer. You're always talking about you've got all this money and all this, and you've got all this money that.
 
 
 
        So I walked back, and I said, man, what are you calling me? And he said, you heard me, old bitch ass nigger. Then he poked me in the hand with the cane right there. Blood started coming out. And he poked me again in this one.
 
Appellant went over and dumped a little trash can into the big trash can. Blood was running down his hand when he went to the dumpster. He was looking for a beer bottle to hit Walter with and then “take off running.” He was going to get a bottle and “chunk” it at Walter and run. But appellant picked up the pipe to “disarm” Walter and returned to the porch. Appellant demonstrated how he had his hands in the middle of the pipe. Appellant walked up to Walter, and asked him what he said. When Walter poked him again, appellant knocked the cane out of Walter's hands. “He threw the pipe down.” Then Walter grabbed appellant and pulled his legs out from under him. The next thing he knew four people were holding him. Appellant had $34 and some cigarettes before the incident. After it was over, Walter was smoking a cigarette and he had not had one before.
        Appellant denied assaulting Walter or even touching Walter. Appellant admitted he knocked the cane out of Walter's hand but denied hitting him. Appellant testified he was just defending himself. After appellant rested, a document was admitted showing Walter was convicted of criminally negligent homicide.
Sufficiency of the Evidence
 
        In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support the conviction of aggravated assault because some evidence exists in the record to show that if appellant is guilty, he is only guilty of the lesser-included offense of assault.
         When deciding whether evidence is legally sufficient to support a conviction, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we examine all of the evidence without the prism of the light most favorable to the verdict and determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        The indictment charged, in relevant part, that appellant did
 
unlawfully then and there intentionally and knowingly threaten CLYDE WALTER, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: a pipe, during the commission of the assault,
 
 
 
unlawfully then there intentionally, knowingly and recklessly cause bodily injury to CLYDE WALTER, hereinafter called complainant, by striking complainant with a pipe, and said defendant did use and exhibit a deadly weapon to-wit: a pipe, during the commission of the assault. . . .
 
The jury was charged to find appellant guilty of aggravated assault if it found beyond a reasonable doubt either that appellant knowingly, intentionally, or recklessly caused bodily injury to complainant or that appellant intentionally or knowingly threatened complainant with imminent bodily injury, and that, in either event, he used or exhibited a deadly weapon, a pipe. The jury was also instructed on the law of self-defense and on the lesser-included offense of assault.
        Conflicting evidence was presented at trial. It was the jury's role, as fact finder, to resolve those conflicts. In doing so, the jury rejected appellant's self-defense claim and found him guilty of the offense charged in the indictment. Reviewing the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to support the jury's findings. We overrule appellant's first and second points of error.
 
Extraneous Offense Evidence
 
        In his third point of error, appellant asserts the trial court erred in admitting extraneous offense evidence during the guilt/innocence phase of trial.
        The standard of review for evidentiary error is whether the trial court abused its discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). The trial court's ruling will not be overturned if it is within the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542. If the trial court's evidentiary ruling is supported by the record and is correct under any applicable theory of law it must be upheld. Trevino v. State, 991 S.W.2d 849, 852 n.5 (Tex. Crim. App. 1999).
        During the direct examination of Anderson, the following took place:
 
[Defense Counsel]:
 
All right. And what do you know about [the complainant]?
 
 
 
[Anderson]:
 
All I know is he borrowed a dollar from me once, and it took him a month to pay it back. That's all I really know about him, other than some other things.
 
 
 
 
[Counsel]:
 
Well, all right. What other things do you know about him?
 
 
 
 
[Anderson]:
 
Well, he's-he's into drugs.
 
 
 
 
[Counsel]:
 
Tell me about that.
 
 
 
 
[Anderson]:
 
Heavy, every day, every night.
 
 
 
 
[Counsel]:
 
Tell me about that. What do you mean he's into them?
 
 
 
 
[Anderson]:
 
He's into it. He's-he's a walking drug dealer. He deals in drugs.
 
 
 
 
[Counsel]:
 
He's a drug dealer?
 
 
 
 
[Anderson]:
 
Sleep all day, roam all night.
 
 
 
 
* * * *
 
 
 
 
[Counsel]:
 
Now, how about the fellow by the name of J. T.?
 
 
 
 
[Anderson]:
 
Same way. Same thing with him.
 
 
 
 
[Counsel]:
 
Same thing?
 
 
 
 
[Anderson]:
 
Yes.
 
 
 
 
[Counsel]:
 
Now, explain how that would work. How did you have two different drug dealers living in the same boarding house?
 
 
 
 
[Anderson]:
 
Well, they were users, and they were dealers. They deal in drugs.
 
 
Anderson testified that because of the drug dealers, a lot of traffic was generated in the boarding houses. Appellant, who did maintenance work there, had a problem with it. Because it caused appellant more work, he was trying to control the traffic. The conflict between appellant and the alleged “drug dealers” ultimately led to the assault.
        On cross-examination, the prosecutor asked Anderson about his knowledge of appellant's background, as well as the complainant and others at the boarding houses. Anderson testified that he had been trying to get in “contact with somebody” for two months. In response, the prosecutor questioned Anderson about his refusal to speak to a prosecutor on the morning of trial. The following then occurred:
 
[Anderson]:
 
Well, it's too late now. She didn't come over an[d] investigate anything while I was still living there. They just hauled the man off to jail and assumed what they said, the three guys that was ganging up on him was true, and locked him up. He's the only one over there working, that had a job.
 
 
 
 
[Prosecutor]:
 
Approach, Judge.
 
(Off-the-record discussion)   See Footnote 12 
[Prosecutor]:        
 
You said you had known the Defendant for 20 years?
 
[Anderson]:
 
Yes.
 
[Prosecutor]:
 
Certainly hadn't been around him for those 20 years, right?
 
[Anderson]:
 
No, not the whole 20.
 
[Prosecutor]:
 
And it-you keep saying that these guys, Clyde and them, are drug dealers?
 
[Anderson]:
 
Yes.
 
[Prosecutor]:
 
In fact, he's a drug dealer, isn't it [sic]?
 
[Anderson]:
 
Ain't never known him to do any drugs.
 
[Prosecutor]:
 
You didn't know he got a conviction for dealing dope in 2002? Did you know that about your buddy?
 
[Anderson]:
 
He wasn't no dealing dope. That's what they convicted him for.
 
[Prosecutor]:
 
Delivery to an undercover cop, you don't call that-
 
[Anderson]:
 
He didn't deliver no drug to an undercover cop.
 
[Prosecutor]:
 
Well, would it surprise you if he pled guilty to that?
 
 
 
 
* * * *
 
 
 
 
[Anderson]:
 
Well, probably so.
 
 
        Appellant claims the trial court's admission of the evidence regarding his prior conviction for delivering drugs denied him a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. See U.S. Const. amends. VI, XIV. Appellant further asserts the evidence was irrelevant and, therefore, inadmissible under the rules of evidence. See Tex. R. Evid. 401, 402, 403, 404(b). The admission of the evidence, appellant argues, was unfairly prejudicial and inflamed the passion of the jury against him in that it “muddied the waters” in an attempt to show he was a bad person and a criminal in general. Because the prejudicial effect of such evidence substantially outweighed its probative value, appellant argues, the trial court erred in admitting it. See Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g).
        The State responds that the evidence was admissible to correct a false impression appellant left with the jury about appellant's involvement with drugs. The State asserts that appellant opened the door to the extraneous offense evidence during his direction examination of Anderson, which left the jury with the false impression that appellant was not involved with drugs. Alternatively, the State argues that any error is harmless. See Tex. R. App. P. 44.2(b).   See Footnote 13  We agree with the State.
        Through his questioning of Anderson, defense counsel sought to paint appellant as a “white knight,” thereby creating a false impression before the jury. By doing so, appellant opened the door to testimony to correct that false impression. The prosecutor could only correct that false impression by cross-examination of the witness who created it. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002). Therefore, the trial court did not abuse its discretion in admitting the evidence of appellant's prior drug delivery conviction. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
050928F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 They all testified at trial.
Footnote 3 They had been talking for probably twenty to thirty minutes.
Footnote 4 The pipe was admitted into evidence without objection.
Footnote 5 Hicks did not testify at trial.
Footnote 6 The insinuation, through cross-examination, was they were dealing drugs to make money.
Footnote 7 Walter knew appellant as “Smoky.”
Footnote 8 He no longer lives at that boarding house.
Footnote 9 Merkel explained that the first call from dispatch goes to the Fire Department and then to the police.
Footnote 10 Anderson moved out of the boarding house a couple of months before trial.
Footnote 11 Appellant denied assaulting a police officer, as well as most of the other offenses; however, he did admit pleading guilty to a theft in 1991, but said he was not guilty of it.
Footnote 12 Defense counsel later stated on the record that at sidebar, when the prosecutor asked that he be permitted to go into appellant's 2002 conviction of delivery of drugs, he objected on the grounds it would be improper impeachment and extremely prejudicial to appellant inasmuch as he was not on trial for delivery of drugs. The trial court confirmed on the record defense counsel's statement was accurate and, further, that the court overruled the objection and permitted the prosecutor to question the witness about appellant's drug delivery conviction for the reason the defense had elicited testimony identifying “everybody involved in the case on the prosecution side” as drug dealers, and the court felt like the door was opened to bring out that appellant had been convicted of drug delivery himself. Defense counsel then clarified that his objection was really that the conviction was irrelevant to the reasoning that animosity existed between appellant and the complainant. The trial court then stated it saw relevance in that it could easily have explained that the jealousy or the animosity appellant might have felt toward the victim and his friends was that they were competitors. The trial court further explained that defense counsel's cross-examination painted appellant as a “white knight” and believed that by doing so, he opened the door to allow the prosecutor to ask about appellant's prior drug conviction.
Footnote 13 The State also correctly points out the appellant later talked about his prior convictions a lot, whereas they received minimal attention from the State.

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