CHRISTOPHER LEE BETTS, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and AFFIRM and Opinion Filed September 28, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01695-CR
No. 05-05-01696-CR
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CHRISTOPHER LEE BETTS, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-01343-NW, F05-01367-NW
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OPINION
 
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Wright
 
 
        A jury convicted Christopher Lee Betts, Jr. of aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon. The trial court assessed punishment, enhanced by one prior conviction, at eighteen years' imprisonment in each case. The court further assessed an $800 fine in each case. In five points of error, appellant contends the evidence is legally and factually insufficient to support the convictions and the trial court's judgment should be modified in the aggravated assault case. We affirm the trial court's judgment as modified in the aggravated assault case. We affirm the trial court's judgment in the firearms possession case.
 
Background
 
        Stephen Richardson, a bouncer at Slick's Billiards, broke up a fight in the parking lot outside the pool hall. Tai Vo, the owner of Slick's, and Jessica Pritchett, a waitress at Slick's, were also in the parking lot telling everyone to leave the premises. After appellant and three of his friends refused to leave, Pritchett sprayed mace in their faces. Appellant got a gun from his car and threatened to shoot Pritchett. After Vo fired his own gun at appellant's vehicle, appellant and his friends left the parking lot. Appellant was arrested when he returned a few minutes later.
        At trial, Pritchett identified appellant as the man who had pointed a gun at her and threatened to shoot. Pritchett testified she helped Richardson, who is her boyfriend, break up a fight in the parking lot. After she told appellant and his friends that she had mace and would use it if they did not leave, appellant said he had something that sprayed and was not afraid to use it. Appellant also said he wanted to hit Pritchett. Pritchett sprayed the mace. She saw appellant pull a weapon that looked like a rifle or sawed-off shotgun from his vehicle. Richardson wrestled with appellant for the gun, but had to back away from appellant when the mace got into Richardson's eyes. Appellant pointed the gun at Pritchett and said Pritchett was an “ignorant bitch” and that he was going to shoot her. Pritchett testified she stood only two feet from appellant and saw him clearly. After a few minutes, Vo fired a gun at appellant's vehicle. Appellant and his friends got into their vehicle and left. After the police had arrived, Pritchett told the officers that a man wearing red shorts and a black T-shirt pointed a rifle or sawed-off shotgun at her and threatened to shoot. Pritchett identified appellant at the scene as the man who had threatened her at gunpoint. At trial, Pritchett identified a nine-millimeter carbine rifle that police officers recovered in an alley behind the pool hall as the weapon appellant held when he threatened to shoot her.
        Richardson identified appellant at trial as the person he saw get a weapon from a vehicle in the parking lot. Richardson identified the nine-millimeter carbine rifle that was recovered by officers in an alley behind the pool hall as the weapon he saw appellant get from the vehicle. Richardson testified that when Pritchett told appellant and his friends to leave or she would use the mace, appellant said, “I've got something that sprays and I'm not scared to use it on you.” Then, appellant said he was going to hit Pritchett. After Pritchett sprayed the mace, Richardson saw appellant run to the left passenger door of his vehicle and pull a rifle from under the back seat. Richardson knocked the rifle to the ground, then wrestled with appellant for several minutes before the mace got into Richardson's eyes. As Richardson backed away from appellant's vehicle, he heard a gunshot, then heard appellant say, “holy shit, he has a gun, too.” Richardson saw Pritchett standing still with a scared look on her face. Richardson testified he did not see appellant point the gun at Pritchett because he was rubbing his eyes, but he told the officers at the scene that appellant was the person he saw get the weapon from a vehicle in the parking lot.
        Vo testified that while appellant and his friends argued with Richardson, he went inside the pool hall and got a gun, then returned to the parking lot. After Pritchett sprayed mace on the men, Vo turned his face to avoid the mace and one of the men knocked him to the ground. Vo tried to get up and saw one of the men pointing a shotgun at Pritchett and Richardson. Vo then saw Richardson fighting with the gunman. Vo testified he did not see the gunman's face nor could he recall what the gunman was wearing. Vo pulled his gun, fired a shot at the gunman's vehicle, fired a second shot at the ground, then hid between two cars and told the men to leave. The men left in their vehicle, but came back a few minutes later. The police arrived and stopped the vehicle. Vo testified he could not recall if appellant was the man with the gun or what clothing appellant was wearing that night.         A surveillance videotape from the pool hall showed appellant wearing a black T-shirt, red shorts, and red hat on July 15, 2005. The videotape showed appellant and his friends going out to the parking lot shortly after 1:00 a.m., but it did not show the incident because the tape ended and rewound automatically.
        Dallas police officers Kenneth Laake and Robert O'Connor testified Pritchett and Richardson told them that a man wearing a black T-shirt and red shorts pointed a rifle or shotgun at Pritchett and threatened to shoot her. Both Pritchett and Richardson identified appellant at the scene as the gunman. O'Connor testified that after he stopped appellant's vehicle and searched it, he did not find any weapons in the vehicle. Pritchett and Richardson gave O'Connor a description of the weapon. O'Connor searched in an alley behind the pool hall and found a loaded nine-millimeter carbine in the alley. O'Connor testified a carbine is a short version of a rifle that looks similar to a shotgun. The weapon was in plain view, did not have any dust or dirt on it, and appeared to be in good working order. No fingerprints were lifted from the weapon.
        Timothy Toran testified on appellant's behalf. Toran admitted appellant was the only person wearing red shorts that night. Toran, appellant, and two friends, Quincy and William, went to Slick's and played pool for a few hours, then went out to the parking lot. They saw the bouncer break up a fight. William began arguing with the bouncer while Toran was trying to get everyone into the car. When the bouncer grabbed appellant's arm, appellant took off his shirt, put it inside the car, and continued arguing with the bouncer. Toran broke up the argument and told appellant, “let's go.” While they were getting into the car, a woman came outside with a can of mace and told them to leave. The woman “had some words” with appellant and said something about spraying the mace. Even though they turned around to get into the car, the woman sprayed the mace. According to Toran, appellant reached into the car and grabbed a shirt to cover his face. Neither appellant nor any of his friends had a gun.
        When appellant grabbed the shirt, Toran heard the woman say something about a gun. The owner fired a gun, breaking out their car's back window. Toran ran across the street, while Quincy ran in the opposite direction. Toran looked back and saw appellant and William standing on the left side of the car with their hands in the air. The owner was saying something to them. After about ten minutes, appellant and William got in the car and drove away. Toran ran back across the street and met them. When he got into the vehicle, Toran realized that Quincy was not in the car. They drove back to the parking lot and drove into the alley behind the pool hall to look for Quincy. They did not see Quincy in the parking lot or the alley. While they were backing out of the alley, police officers blocked their car.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.).
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         To obtain a conviction for aggravated assault with a deadly weapon, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Jessica Pritchett with imminent bodily injury and used or exhibited a deadly weapon during the commission of the offense. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006). A firearm is a deadly weapon per se. See id. § 1.07(a)(17). The statutes cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
        To prove unlawful possession of a firearm by a felon, the State had to prove beyond a reasonable doubt that appellant was previously convicted of a felony offense and possessed a firearm at any location, other than the premises at which he lived, after conviction and before the fifth anniversary of his release from either confinement following the felony conviction or release from supervision. See Tex. Pen. Code Ann. § 46.04(a)(2) (Vernon Supp. 2006); Martinez v. State, 986 S.W.2d 779, 780 (Tex. App.-Dallas 1999, no pet.). The State had to show appellant exercised actual care, control, or custody of the firearm, he was conscious of his connection with the firearm, and he possessed the firearm knowingly or intentionally. See Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2006); Bates v. State, 155 S.W.3d at 216.
        When there is no evidence appellant was in exclusive control of the place where the firearm was found, the State must affirmatively link him to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). No set formula of facts exists dictating a finding of affirmative links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 831. It is the logical force of the factors, not the number of factors present, that determines whether the elements of the offense have been established. See id.
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because nothing shows he was the person who exhibited a weapon. Appellant asserts that although Pritchett and Richardson identified him as the person with the firearm, their testimony is not credible because they were dating and they both worked for Vo. Appellant contends that there is no evidence that Pritchett was ever threatened by anything other than rough language; that the evidence shows he went to his car only to get his shirt after being maced by Pritchett; and that nothing links him to the rifle found in an alley by the police. The State responds that the evidence is legally and factually sufficient to support the convictions because eye witnesses identified appellant as the gunman who threatened to shoot Pritchett.
        Both Pritchett and Richardson told police officers a man wearing a black T-shirt and red shorts pointed a firearm at Pritchett and threatened to shoot her. A surveillance videotape showed appellant at the pool hall that night wearing a black T-shirt, red shorts, and a red hat. Toran admitted appellant was the only person wearing a black T-shirt and red shorts that night. Both Pritchett and Richardson identified appellant at the scene and again at trial as the gunman, and both identified a rifle found by police officers in a nearby alley as the weapon they had seen appellant holding. Toran testified no one but Vo had a gun in the parking lot that night, and neither appellant nor any of them had a weapon in their vehicle.
        Appellant essentially asks us to believe Toran's testimony over that of Pritchett's and Richardson's. However, it was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.).
        Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's finding that appellant committed aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon. See Lane, 151 S.W.3d at 191-92; Zuniga, 144 S.W.3d at 484-85; Bates, 155 S.W.3d at 216. We overrule appellant's second through fifth points of error.
        In his first point of error, appellant asserts the trial court's judgment in the aggravated assault case should be modified to show he pleaded not guilty to the charges in the indictment. The State agrees that the judgment should be modified to correctly reflect appellant's plea.
        The record shows appellant pleaded not guilty before a jury. The judgment incorrectly states appellant pleaded guilty before a jury. We sustain appellant's point of error. We modify the trial court's judgment to show appellant entered a not guilty plea. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
Conclusion
 
        In cause no. 05-05-01695-CR, we modify the trial court's judgment to show appellant pleaded not guilty. As modified, we affirm the trial court's judgment.
        In cause no. 05-05-01696-CR, we affirm the trial court's judgment.
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051695F.U05