DARRYL TALLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00095-CR
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DARRYL TALLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-52257-M
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OPINION
Before Justices Bridges, Richter, and Mazzant
Opinion By Justice Mazzant
        Darryl Talley waived a jury and pleaded not guilty to aggravated assault. After finding appellant guilty, the trial court assessed punishment, enhanced by prior felony convictions, at forty years' imprisonment. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
 
        Alvin Turner, the complainant, testified appellant threatened him with a gun on May 11, 2007. Turner got off a bus and walked down the street towards his residence at about 7:00 p.m. Turner saw appellant--who was confined to a wheelchair--talking to a neighbor as the neighbor watered his lawn. Turner did not know appellant, but he knew appellant lived about four houses away from his house. Turner stopped to talk with the neighbor briefly. Appellant pulled a gun, cocked it, and pointed it at Turner. Turner testified the gun was an “Uzi handgun,” appellant had it “up under his leg,” and Turner saw bullets “falling on the chair” when appellant cocked the gun. Appellant threatened to shoot Turner. Turner walked away from appellant and continued on to his house, where he called the police, who arrived within ten to fifteen minutes. Turner testified appellant's girlfriend came outside and wheeled appellant back home, saying, “No, don't do that.” Turner did not see anyone pick up any bullets off the ground.
        Jose Vasquez testified he was working in his yard when he saw appellant's girlfriend pushing appellant in a wheelchair. Appellant lived next door to Vasquez. As Vasquez and appellant talked, Turner got off the bus and walked towards them. Turner lived several houses down the street from Vasquez. Turner said “hello” to Vasquez and kept walking. Appellant called to Turner to come over to him, then appellant started cursing at Turner. Appellant accused Turner of walking a dog in front of appellant's yard. Turner told appellant he did not own a dog. Vasquez also told appellant that Turner did not own a dog. Vasquez believed appellant was confusing Turner with someone else. Vasquez saw appellant pull an Uzi handgun from between the chair and appellant's hip, click it, and point it at Turner. Vasquez saw one shell go over appellant's shoulder and hit the ground behind appellant. Appellant threatened to shoot Turner. Vasquez and appellant's girlfriend tried to calm appellant. Turner walked to his house to call the police. After Turner left, appellant's girlfriend pushed appellant back to his house. Vasquez walked into his garage and called the police, who arrived within five minutes. Vasquez went back outside and looked for the shell casing he heard hit the ground, but never found it. Vasquez assumed appellant's girlfriend picked up the shell casing, but he did not see her pick it up because his attention was on appellant.
        Dallas officer Casey Erwin was dispatched to Turner's residence on a disturbance call. Erwin arrived at Turner's residence about twenty minutes after the 911 call was received. Erwin testified he saw appellant sitting in a wheelchair on his front porch. Erwin went to Turner's house, talked with Turner, then went to Vasquez's house. Turner said he and appellant had an argument about Turner's brother, who allegedly owed appellant money, and appellant pulled out an Uzi handgun and threatened to shoot Turner. Vasquez said he saw appellant point an Uzi at Turner. After talking with Turner and Vasquez, Erwin and other officers went to appellant's house and arrested him. Erwin did not find a gun in appellant's wheelchair or on appellant's person, nor did he find a shell casing in the area. Appellant did not allow the officers to go inside his house. Because appellant's front door was locked, and no one said they saw appellant take the gun inside the house, Erwin did not believe he could search inside the house without a warrant. Erwin testified there was a woman with appellant. Erwin checked the woman's purse, then allowed her to leave the scene.
        Appellant denied he had a gun or that he pointed it at Turner and threatened to shoot him. Appellant testified he knew Vasquez and Turner, and saw Turner walk by his house every day. On May 11, 2007, appellant was talking to Vasquez when Turner walked by them. Appellant denied arguing with Turner. Appellant did not know why Vasquez would say appellant threatened Turner with a gun because he had always gotten along well with Vasquez. Appellant testified the officers never asked to go inside his house, and he never refused to let them search inside the house. Appellant admitted he was on probation for a felony drug offense at the time of this incident, and he had several previous felony convictions.
Applicable Law
 
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction for aggravated assault, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly threatened Turner with imminent bodily injury and used or exhibited a deadly weapon, a firearm, during the commission of the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2008).
Discussion
 
        Appellant argues the evidence is factually insufficient because the officers did not interview an eyewitness to the alleged incident, the officers did not find any physical evidence, bullets or a gun, and an officer testified police lacked sufficient probable cause to obtain a search warrant for appellant's house. The State responds the evidence is factually sufficient to support the conviction.
        There was conflicting evidence presented. Two witnesses, Turner and Vasquez, testified appellant pulled out a firearm and threatened to shoot Turner. Appellant denied having a gun or threatening to shoot Turner with a gun. It was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.).
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Swearingen, 101 S.W.3d at 97. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080095F.U05