George Lott Jr. v. The State of Texas--Appeal from 338th District Court of Harris County

Opinion issued November 15, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00674-CR

GEORGE LOTT, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1037391

MEMORANDUM OPINION

A jury convicted appellant, George Lott, Jr., of aggravated assault and assessed punishment at seven years in prison. See Tex. Penal Code Ann. 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006). In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.

Background

On the evening of August 13, 2005, appellant got into an argument with Ezar Goffney, at a park near Ezar s apartment. Both Ezar and his brother, Christopher, testified that they were at the park when they saw appellant park his truck near an apartment complex across the street. Ezar testified that he saw appellant take a small handgun from the truck s toolbox and hide it in his clothing. Appellant approached the brothers and started an argument about a mutual female friend. In the heat of the argument, appellant flashed his weapon at the Goffney brothers and threatened to kill Ezar, Christopher, and Ezar s wife and child, saying, I will take your life. I will take your baby. I ll bleed your wife. I m going to bleed you. Bleed everybody in your family. And if I ever catch you walking out here, I m going to kill you, too. After about ten minutes, they agreed to go their separate ways.

Both Ezar and Christopher testified that they felt threatened, but they, nevertheless, turned their backs on appellant and began walking away, while appellant continued threatening them verbally. Christopher turned back and saw appellant pointing a small caliber handgun at them. Christopher immediately pushed his brother aside, yelling, Get down, watch out! Christopher testified that he saw appellant in the shooter formation, feet spread apart, one hand balancing the weapon, the other one clutching it. Five or six shots were fired in rapid succession, but the shots did not hit either brother. Ezar testified that he saw appellant fire the last three shots at him and his brother.

Ezar and Christopher ran to their apartment, where Ezar called the police. They stayed inside the apartment until the police arrived. Later that night, both Ezar and Christopher identified appellant from a photographic lineup, although Ezar testified that he did not need a photographic lineup to identify appellant as the shooter. At trial, Ezar said that appellant was the person who shot at him. Likewise, Christopher testified at trial that he was absolutely positive that appellant was the person who shot at him and his brother.

Eric Warren, who lived nearby, testified that he heard loud yelling outside his home between 8:00 and 8:45 that evening. From his balcony, Warren saw a heavy-set black man standing in the parking lot across from Warren s townhome and yelling at someone. Warren testified that he saw the man reach into a duffel bag, and Warren immediately heard three to six gunshots. Warren s view was partially obstructed, and he said that he could not identify the shooter. Warren said that he did not see anyone in close proximity to the shooter.

Officer Aaron Day of the Houston Police Department responded to a call regarding the shooting that night. He interviewed Ezar, Christopher, and Eric Warren, investigated the scene of the shooting, and collected five spent shell casings from the parking lot across from the apartment complex. Based on his interviews with Ezar and Christopher, Officer Day created the photographic lineup, from which Ezar and Christopher positively identified appellant as the shooter.

Appellant testified that he had known Ezar casually since 2001, and he said they had a conflict over a mutual female friend. Appellant testified that he was visiting friends who lived near Ezar, when he happened upon Ezar and Christopher that night. He confronted Ezar about something he thought Ezar had said about him. He denied threatening Ezar and said he was unarmed at the time. He testified that Ezar and Christopher walked away, but that Ezar returned, brandishing a handgun wrapped in a red bandana. He testified that he ran away when Ezar fired more than five or six shots in his direction. He said Ezar chased him on foot and later fired additional gunshots at him. Appellant testified that he fled to a gas station and called the police, but he hung up when he was put on hold.

Darryl Tucker, who lived nearby, also testified for the defense. He said that he was in the parking lot with friends when he saw appellant there yelling at two men. Tucker recognized appellant, who was a casual acquaintance, but he did not know the two other men by name. Tucker testified that he ran away as soon as he heard gunshots. He said that he heard four or five gunshots in rapid succession, pop-pop-pop-pop-pop. He also testified that appellant could not have fired the shots, because he was right behind us, and running right along with us. Tucker further testified that he thought the shots sounded like they came from across the street, where Ezar and Christopher were standing.

Standard of Review

In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated assault by threat. A person commits aggravated assault by threat if the person intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. 22.01(a)(2), 22.02(a)(2).

In evaluating the legal sufficiency of the evidence, we view 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is clearly wrong or manifestly unjust simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the factfinder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The factfinder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the factfinder s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408 09. As the determiner of the credibility of the witnesses, the factfinder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.

Legal Sufficiency

In his first issue, appellant contends that the evidence is legally insufficient because Ezar and Christopher were biased and, therefore, not credible witnesses. Both Ezar and Christopher testified that appellant threatened them and shot at them, and they both positively identified appellant in open court. They both saw the handgun. Both testified that they felt threatened or feared for their lives. Officer Day collected five spent shell casings from the area where appellant had argued with Ezar before Ezar and Christopher walked away. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly threatened Ezar with imminent bodily injury while using and exhibiting a deadly weapon, namely, a handgun. See Vodochodsky, 158 S.W.3d at 509.

We overrule appellant s first issue.

Factual Sufficiency

In his second issue, appellant contends that the evidence is factually insufficient. Appellant argues that under the second prong of Johnson, the verdict is against the great weight and preponderance of the evidence because Tucker testified that appellant could not have been the shooter. See Johnson v. State, 23 S.W.3d at 11. Appellant further asserts that no other physical evidence or testimony has corroborated the Goffney brothers testimony.

Appellant testified that he was unarmed and that Ezar shot at him in two separate bursts of gunfire. He directs us to Tucker s testimony that Tucker ran away as soon as he heard gunshots and that appellant could not have fired the shots, because he was running with or behind Tucker. However, Tucker also testified to hearing only one burst of gunfire: four or five shots in rapid succession. When viewed in a neutral light, and in light of Ezar s and Christopher s clear and direct testimony that they saw appellant shoot at them with a handgun after threatening Ezar and his family, we cannot say that the great weight and preponderance of the evidence contradicts the jury s verdict. See Johnson, 23 S.W.3d at 11; see also Watson v. State, 204 S.W.3d at 417.

We overrule appellant s second issue.

Conclusion

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).