HALLIE DONNELL MURRAY, JR., FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00963-CR
NO. 05-88-00964-CR
NO. 05-88-00965-CR
 
HALLIE DONNELL MURRAY, JR.,                 FROM A DISTRICT COURT        
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES MCCLUNG, STEWART AND BAKER
OPINION BY JUSTICE STEWART
JUNE 26, 1989
        The trial court found Hallie Donnell Murray, Jr. guilty of three offenses; one for aggravated assault, and two for attempted murder. FN:1 Punishment was assessed at fifteen years' confinement for each offense. In all three convictions, appellant contends that the trial court erred in entering a finding in its judgment that the appellant used or exhibited a firearm. In his appeal from his first conviction, he also contends that the evidence is insufficient to prove that he intentionally used a firearm to threaten Clara Thomas with imminent bodily injury, and that the trial court erred in finding appellant guilty of aggravated assault because the State failed to disprove appellant's defense of self-defense beyond a reasonable doubt. In his appeal from his second and third convictions, appellant contends that the State failed to prove absence of the influence of sudden passion beyond a reasonable doubt, and that because appellant established that he was acting under the influence of sudden passion, and because the trial court impliedly found the evidence of attempted voluntary manslaughter to be insufficient, the trial court erred in finding appellant guilty of attempted murder. In his appeal from his second conviction, he also argues that his conviction for attempted murder was not supported by sufficient evidence. Appellant argues in his appeal from his third conviction that the evidence does not support the allegation that the appellant intended to commit the offense of murder by shooting Michael Ware. We disagree with all of appellant's contentions. We affirm.
        Clara Thomas, Henry Jones and Michael Ware (complainants) spent the early morning hours of March 4, 1988, smoking crack cocaine with appellant and several others at the apartment of a woman named Kim. Sometime around seven o'clock that morning, this group travelled to Thomas's house. Thomas prepared for work while the others "visited" in the kitchen and living room. At approximately 9:45 a.m., Ware was following Thomas through the front door on the way to drive Thomas to work when a gunshot shattered the storm door. Thomas immediately went out into the front yard. Ware turned around and saw appellant about eight feet away aiming at Ware's chest with a .38 caliber pistol in one hand and a .32 caliber pistol in the other. Appellant fired two shots, hitting Ware in the chest and right arm. Ware ran out of the house and up the street. Jones had remained in Thomas's house. Appellant then shot Jones once in the upper back.
        Thomas re-entered the house and asked appellant if he was crazy. Jones was lying on the floor asking appellant not to shoot again. Appellant pointed the pistols at Thomas and tried to fire at least one of them, but the weapon was apparently empty. Appellant then began hitting Thomas on the head and face with the guns. Meanwhile, Jones managed to get up and run out of the house to his own home nearby. Thomas escaped through a window into the backyard where she remained until appellant left. At that point, she went across the street to call the police.
        Appellant argues in his appeals from all three convictions (in point three from his first conviction, and point four from his second and third convictions) that the trial court erred in entering a finding in its judgment that the appellant used or exhibited a firearm. The first paragraph of the indictment for each conviction alleged, respectively, that appellant attempted to murder Jones and Ware with "a firearm, a deadly weapon" and threatened Thomas with "deadly weapon, to wit: a firearm." At the end of the guilt/innocence state, the judge found appellant "guilty as charged in the first paragraph of each indictment." At the end of the punishment stage of the trial, the judge stated, " . . . I do make in each case an affirmative finding that a deadly weapon was used to commit each offense." Each judgment contains the following finding: "The [court] finds that the defendant herein used or exhibited a deadly weapon during the commission of said offense, to wit: [a] firearm." Appellant contends that this affirmative firearm finding in the respective judgments is improper because the trial court did not make an affirmative finding on the record that the deadly weapon used was a firearm.
        The Texas Code of Criminal Procedure provides that a defendant may not be granted probation:
        when it is shown that the defendant used or exhibited a deadly weapon . . . during the commission of a felony offense . . . . Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense . . . the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.
TEX. CRIM. PROC. CODE ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 1988). If an indictment's allegation specifically places the issue before the trier of fact, (for example, as here, alleges use of a deadly weapon, namely, a firearm), then an affirmative finding is de facto made when the trier of fact finds the defendant guilty "as charged in the indictment." Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). Appellant acknowledges this rule, but contends that the rule is inapplicable in this case because the trial judge made an actual affirmative finding at the punishment stage, which appellant apparently contends overrides the effectiveness of the de facto finding made during the guilt/innocence stage of the trial. Thus, he maintains that the record does not reflect an affirmative finding of use of a firearm and, therefore, this finding cannot be included in the judgment. We disagree.
        The trial judge was the only trier of fact in this case. His verdict on this indictment was an affirmative finding both that a deadly weapon was used and that that weapon was a firearm. Polk, 693 S.W.2d at 394. His later statement, that he made an affirmative finding that a deadly weapon was used, simply repeats a portion of his former finding and does not negate his prior finding of use of a firearm.
        Further, when the trial judge is the trier of fact, there is no requirement that he announce his finding on the record before entering it in the judgment. See Fann v. State, 702 S.W.2d 602, 605-06 (Tex. Crim. App. 1986)(Teague, dissenting). Therefore, the omission of use of a firearm in the judge's stated affirmative finding at the punishment stage would not be fatal even if his verdict did not constitute an affirmative finding on use of a firearm. We overrule appellant's points of error in each case on this issue.
        In his first point of error in his appeal from his first conviction, appellant contends that the evidence is insufficient to prove that appellant intentionally used a deadly weapon to threaten Clara Thomas with imminent bodily injury. Appellant argues that the evidence regarding his unsuccessful effort to shoot Thomas proved attempted murder rather than his use of a deadly weapon "to threaten" Thomas. Her testimony that he began hitting her with the butts of the guns after they failed to fire, he contends, proved assault (intentional bodily injury) or aggravated assault (by use of a deadly weapon caused bodily injury), but the evidence is insufficient to show that he intended to threaten Thomas.
        Appellate review of sufficiency is limited to determining whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988.).
        Appellant notes that the State introduced no evidence of verbal threats made to Thomas. However, he recognizes that a "threat" is not limited to the use of verbal aggression, and that it may be communicated by action or conduct as well as words. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); Berry v. State, 579 S.W.2d 487, 489 (Tex. Crim. App. 1979). Evidence that a victim observed the defendant pointing a gun at him is sufficient to establish a threat. Dickerson v. State, 745 S.W.2d 401, 403 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd); Roberts v. State, 743 S.W.2d 708, 710 (Tex. App.--Houston [14th Dist.] 1987, pet ref'd).
        In the case before us, Thomas testified that appellant aimed two pistols at her and pulled the trigger on at least one of them. This Court has held that evidence that appellant pointed a gun at a complainant is sufficient to prove a threat was made and to sustain a conviction for aggravated assault. Preston v. State, 675 S.W.2d 598, 601 (Tex. App.--Dallas 1984, pet ref'd); see Dickerson, 745 S.W.2d at 403. Further, appellant's pointing and attempting to fire the gun also supports an inference of the requisite intent for the crime. See Roberts v. State, 743 S.W.2d 708, 710 (Tex. App.--Houston[14th Dist.] 1987, pet ref'd). We overrule appellant's first point of error from his first conviction.
        Appellant's second point of error in his appeal from his first conviction is that the trial court erred in finding appellant guilty of aggravated assault because the State failed to disprove appellant's defense of self-defense beyond a reasonable doubt. When raised by the evidence, self-defense is a fact issue to be determined by the trier of fact. Moore v. State, 694 S.W.2d 528, 530 (Tex. Crim. App. 1985). The trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and was entitled to believe all or part of the evidence presented by either the State or the defendant. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Under section 2.03 of the Penal Code, the defendant has the initial burden of producing evidence to raise a defense, but the State then has the burden of persuasion to disprove that defense beyond a reasonable doubt. Williams v. State, 710 S.W.2d 828, 828 (Tex. App.--Dallas 1986, pet. ref'd); see Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979), cert. denied, 446 U.S. 944 (1980). In order for us to hold that the appellant acted in self-defense as a matter of law, the evidence must be uncontroverted and no issue presented for the fact finder's determination. Williams, 710 S.W.2d at 828. An appellant's uncontroverted testimony alone does not conclusively prove self-defense. Id.
        Appellant's testimony concerning his use of self-defense was contradicted by the State's evidence. Appellant's contention that there is more support in the record for his version of the facts is irrelevant, because, as we stated earlier, the trier of fact was entitled to accept or reject all or a portion of the testimony of any witness. The issue of self-defense was resolved by the court against appellant, and the evidence supports this determination. Jenkins v. State, 740 S.W.2d 435, 438 (Tex. Crim. App. 1987). We overrule appellant's second point from his first conviction.
        In points of error two and three in his appeals from his second and third convictions, appellant contends that the State failed to prove the absence of the influence of sudden passion beyond a reasonable doubt, and that because appellant established that he was acting under sudden passion, and because the trial court by implication found the evidence of attempted voluntary manslaughter to be insufficient, the trial court erred in finding appellant guilty of attempted murder. These points relate to appellant's testimony that the complainants were trying to kill him and that he was defending himself. He contends that this testimony raised the issue of sudden passion.
        Assuming that the issue of "whether appellant acted under the immediate influence of sudden passion arising from an adequate cause" was raised, "the absence of sudden passion became an element of the offense." Gold v. State, 736 S.W.2d 685, 689 (Tex. Crim. App. 1987). Thus, it is the State's burden of production and persuasion as to that element. Id. The finder of fact's rejection of appellant's testimony that he did act under such passion cannot alone supply that element "consonant with due process and due course of law." Id. (emphasis added).
        In analyzing whether the State satisfied its burden to prove the implied element of absence of sudden passion beyond a reasonable doubt, we again must inquire whether the evidence is sufficient on this matter. Id. See Jackson v. Virginia, 443 U.S. at 319. The Texas Court of Criminal Appeals has stated that:
        to prove the absence of sudden passion the State may present evidence tending to establish the converse - e.g., that at the moment he intentionally or knowingly [committed the offense], appellant was capable of, and did in fact act with cool reflection, in spite of circumstances that may well have been provocative.
Gold, 736 S.W.2d at 690.
        In the case before us, the State's witnesses testified that there had been no argument that morning and that no one had threatened appellant. The evidence showed that the group was sitting and "visiting" in Thomas's house, after a night of smoking cocaine. As Thomas and Ware were leaving, appellant started shooting. Viewing all of the evidence in the light most favorable to the State, which allows a presumption that the court invoked its prerogative to discount appellant's own testimony as self-serving, we hold that there was more than a "mere modicum" of evidence to show absence of sudden passion and, therefore, the trial court was justified in finding the absence of sudden passion beyond a reasonable doubt. Id. We overrule appellant's second point in his second and third convictions. Because his third points in these two convictions rely on the presence of sudden passion, they, too, are overruled.
        In point of error one in his appeal from his second conviction, appellant argues that his conviction for attempted murder was not supported by sufficient evidence. He contends that the State did not prove that the shooting of Jones was completed "knowingly and intentionally" with the "specific intent to commit the offense of murder."
        Appellant testified that the people present in Thomas's house had been selling drugs together and that they had tried to kill appellant when he threatened to inform the authorities. He further testified that they had tried to poison him, that Ware had tried to shoot him immediately before appellant shot him, and that Jones had attempted to attack the appellant from the "blind side" and that he was just defending himself. He also testified that Jones had accidentally gotten in the way when appellant tried to shoot another person.
        Again, in analyzing a complaint regarding the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and we must determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. The specific intent to kill is a necessary element of attempted murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984). This intent may be inferred from the use of a deadly weapon "unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result." Godsey v. State, 719 S.W.2d 578, 581-82 (Tex. Crim. App. 1986). The Godsey court noted that "the most obvious cases and the easiest ones in which to prove a specific intent to kill are those cases in which a firearm was used and was fired or attempted to have been fired at a person." Id. at 581.
        The evidence is clear that appellant shot Jones with a firearm. As stated earlier, the trial court, as the finder of facts, was authorized to accept or reject any of the testimony from any witness. Mattias, 731 S.W.2d at 940. Therefore, the court was entitled to discount appellant's testimony that he shot Jones by accident, particularly in view of his contradictory testimony that he shot Jones in self-defense. The evidence, viewed in the light most favorable to the verdict, supports the trial court's implied finding of the requisite intent to kill. We overrule appellant's first point from his second conviction.
        Similarly, in the first point in his appeal from his third conviction, appellant contends that the evidence is insufficient to support the allegation that he intended to murder Ware. This argument is based on appellant's testimony that the others had tried to kill him when he threatened to inform the authorities of their drug sales, that Ware tried to shoot appellant immediately before appellant opened fire; and that appellant did not mean to hurt anyone, but was merely defending himself. However, all of this testimony was controverted by the State's witnesses.
        The trial court was entitled to disbelieve appellant's statement that he shot Ware without malice in self-defense. Mattias, 731 S.W.2d at 940. The evidence showed that appellant fired a deadly weapon at Ware. Under Flanagan and Godsey, this is sufficient to support the court's implied finding of the requisite intent to kill. See Godsey, 719 S.W.2d at 581-82; Flanagan, 675 S.W.2d at 741. We overrule appellant's first point from his third conviction.
 
 
 
 
 
 
 
        Having overruled all of appellant's points of error under his appeals from each of his convictions, we affirm the judgment of the trial court in each of the three appeals addressed in this opinion.
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00963.F
 
 
FN:1 For purposes of this opinion, appellant's conviction under no. 05-88-00963-CR (aggravated assault of Clara Thomas) will be referred to as the first conviction, his conviction under no. 05-88-00964-CR (attempted murder of Henry Jones) will be referred to as the second conviction, and his conviction under no. 05-88-00965-CR (attempted murder of Michael Ware) will be referred to as the third conviction.
File Date[01-02-89]
File Name[880963F]