SAM STOVALL DUGGER, II, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 15, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00469-CR
No. 05-08-00470-CR
No. 05-08-00471-CR
............................
SAM STOVALL DUGGER, II, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F06-61931-I, F06-61932-I, and F06-61933-I
.............................................................
OPINION
Before Chief Justice Thomas and Justices Morris and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Samuel Dugger was indicted for three offenses of assault on a public servant with a deadly weapon, arising from one incident.   See Footnote 2  The three cases were tried together before a jury on appellant's pleas of not guilty.   See Footnote 3  The jury found appellant guilty and assessed his punishment at twenty-three years' confinement and a $10,000 fine in each case. On appeal, appellant raises as a sole issue whether the trial court erred in denying him a charge on the lesser included offense of deadly conduct.   See Footnote 4  We affirm.
Facts
        On February 1, 2006, at approximately 8:00 p.m., appellant placed a 911 call to the Dallas Police Department requesting assistance. When asked what kind of help-whether he needed the police, fire department, or an ambulance, appellant responded, “Bring them all on.” The dispatcher told Detamble that the person requesting assistance was mad at the government and wanted the police.
        The State called as witnesses numerous patrol officers and tactical officers who responded to the scene. David Detamble testified that he and his trainee, Jason Turner,   See Footnote 5  were the first police officers to arrive at appellant's door. When Detamble arrived at appellant's second-floor apartment, he could smell freshly “burnt” gunpowder and could see multiple bullet holes in the door. When Detamble knocked on appellant's door, appellant replied, “Go away. I have family.” Detamble knocked again, saying “Dallas Police.” He told appellant, very loudly, that appellant needed to open the door-that he needed to talk to appellant. Appellant responded by shooting through the door.   See Footnote 6  Detamble and Turner retreated downstairs while appellant fired four more times before they reached the bottom of the stairs. Detamble could not tell where those shots were directed. Detamble felt that he and Turner were at a tactical disadvantage and were in real danger.
        Turner got a shotgun and radioed for assistance. Because Turner had only been with the department for two weeks and Detamble was responsible for him, Detamble directed Turner to the safest available cover, and then he ran along the edge of the building and checked the other corner. He then realized appellant had a rear exit to his apartment. By the time Detamble got to the northeast corner, he could tell by the sound that appellant had changed to another weapon, so he radioed the dispatcher that the shooter had changed to a second gun.
        Sergeant Fornance arrived to supervise and set up a staging area just west of the apartment. Several other officers set up a perimeter. Once the perimeter was secured, the officers backed the squad car up and “pull[ed] back” to give appellant some space. Fornance, Detamble, and Turner then ran across the parking lot without taking any fire.
        The officers went into another apartment and conducted surveillance into appellant's apartment for about half an hour. They sat there “watching rounds come out.” One bullet struck the window and banked off, causing a flash where it hit the metal. Appellant also shot a vehicle in the parking lot.   See Footnote 7  Detamble never saw appellant's face. All the windows in appellant's apartment were black. No lights were on inside his apartment. After about half an hour, “Tactical” arrived.   See Footnote 8  SWAT blacked out the windows inside the apartment a little bit better, removed the patrol officers, and told them to go to the command post.
        As part of Turner's training, Detamble and Turner went back to the scene of the shooting the next day. By examining the bullet holes in the door, Detamble was able to speculate where the four shots he heard would have struck had he and Turner not retreated down the stairs. He testified:
We went back the next day, and we stood where we were when the first shot went. And I stood here, and the bullet would have struck me right here. A bullet would have struck me in the stomach, and a bullet would have struck me in the leg. Jason, who is a lot smaller than me, was standing right behind me. He'd have taken one shot to the head.
 
        The shot that came through the door put Detamble in fear of imminent bodily injury. He was in full police uniform and had come to the scene in a marked squad car. He announced loudly and clearly he was a Dallas police officer.
        Patrol officer Jennifer Mamola testified she was dispatched to the scene of the shooting as an “officer assist.” When she first pulled up, she saw Officer Bobby Cole to the east of the apartment building. She did not realize she had pulled into the line of fire. After Cole warned her, she pulled back, got out of her vehicle, and proceeded to find cover behind a three-foot-high wall. She could see Cole, standing trapped next to the building. Cole pointed to appellant's location. Mamola's view was blocked by a tree and it was dark. She heard a few shots that seemed to her like random gunfire. She saw Cole point a rifle up to the window where she assumed appellant was located. She assumed he had seen something that caused him to do that, so she went to cover him. She “kind of just stood up a little bit and was pointing [her] weapon up to the window.” And just as she did that, she heard a shot fired and “the whiz” as the round hit approximately three feet, if not closer, in front of her, causing her to fall back.. She demonstrated the event for the jury. Mamola was “pretty scared” because she had never been fired upon before. Officer Chris Harmon, who was behind her, helped her and they retreated at that point. Mamola pointed out to the jury on the map by using an “X” and writing her name where she was when she was fired upon. The command post was about a block or two down the street. SWAT officers came down to consult with the officers about where the bullets were coming from. After she told the SWAT officers where the rounds were coming from, SWAT took over. Mamola then retreated about two blocks back and waited for the rest of SWAT to show up. Mamola told the SWAT officers that Cole was trapped by that building and they were going to have to get him out.         When Mamola initially responded to the scene, the squad car's lights and siren were on, until the car was about a block away. She was in full police uniform. When asked if she believed the defendant could see her, she responded, “Definitely. I actually went back there a few days later and just took it all in.” She continued,
I - just to take it all in, I went and saw because I mean, I've never been in that situation before. And to see how the officers were shot at and to be upstairs. I mean, you can actually have a clear view from a higher point. And you could see - even with that tree there, you could see, you know, all the parking lot underneath, the street on the side. So, I mean, without a doubt, I had no doubt that he was shooting for me.
        
        She did not go into appellant's apartment but looked through a hallway window in the stairwell next to the window where he was shooting-a location similar to his vantage point. The first shot that landed close to her occurred when she raised her head. When asked if she thought it was random gunfire, she responded, “Absolutely not.” When asked “Why?” she responded,
Because it was - I mean, it was too much of a coincidence at that actual moment where I put my head up that he shot down at the ground at right where I was at. I mean, there's random gunfire is going to be across the board. It's not going to be within three feet of somebody. I mean, I just think that's just too much of a coincidence.
 
        Harmon testified he responded to the same assistance call that drew Mamola. Harmon was directed how to approach to avoid the gunfire. He could see Mamola crouched down behind a wall. Harmon crouched down and walked up behind that wall to cover Mamola in case she was hurt and somebody would be there near her. Harmon was there with Mamola for four or five minutes when gunfire prompted them to leave. As they were both crouched down behind the wall, he heard a gun report.   See Footnote 9  He saw a round hit the concrete “two feet maybe” from Mamola. When “Tactical” arrived and assumed their position, Harmon and Mamola retreated. He was afraid of being shot when the shot came so close to them. Based upon what he saw and the circumstances, he did not believe it was random gunfire because of the proximity to them. Harmon stated, “He had to have see[n] us and was shooting at us. I'm convinced of that.” Although he could not see the shooter through the darkened windows, Harmon believed appellant could see them because
Well, we were in a line of sight of him. And I'm assuming, I guess, that he either saw us approaching or saw, you know, one of our heads. Sometimes when you're ducking behind things, you're - I guess, because of where your eyes are in your head, sometimes your head is higher or a weapon shows or something, but there would be no other reason for him to fire right there other than him seeing us.
 
Harmon did not remember seeing Cole at the scene.
        After the tactical officers relieved him, Harmon assisted with traffic in the area. Although Harmon did not count the number of shots fired, he described them as “relatively frequent and sometimes it would be one shot. Sometimes it would be several rounds fired at once. And other than that one round, I can't say where the other rounds went, but I could hear them quite frequently.”
        Officer William Silvia testified he responded to the call for an assist and was directed to stop traffic from traveling into the area. Silvia demonstrated on the map where he was directing traffic. He parked his police car diagonally to block all three lanes of a road. When he stepped out of his car to open the trunk and get cones and flares, “a few shots were fired in [his] direction.” Silvia was not sure how many shots were fired but he thought it was two or three shots. The second shot he heard fired hit the street or parking lot near him.
        Silvia abandoned his mission for the flares and “grabbed” his AR 15 out of the trunk in order to protect other officers who did not have rifles.   See Footnote 10  As Silvia made his way to the southeast corner, a few more shots were fired. He and other officers heard the shots ricochet off the street. He described the route he took to get a better vantage point. He used an electrical box for cover, lying down to shield more of his body. Silvia described seeing blinds across the window and one of the window panels was broken out. He could see the blinds being pulled down and a white male's face sticking out, looking around, and then the blinds would go back. Then, a couple of seconds later, he would see the rifle barrel or shotgun barrel stick out the window and shots would be fired. Some of the shots were directed at him. He testified:
When I was laying behind the box, I could look up, and I had a pretty direct line of sight right at the suspect window. When the blinds opened, he looked out, and he was looking around at one point and looked directly at me. And we kind of locked eyes for a second, and then he leaned back, closed the blinds and the rifle barrel went out and down and angled towards where I was at and then shot and then immediately pulled back in.
 
        During the forty-five minutes to an hour he was “hunkered down” behind the electrical box, Silvia counted fifty-six or fifty-seven shots before losing count. Possibly, three or four of those shots were fired at him. He was confident that “[t]wo for sure” of the fifty-plus shots were directed at him. He was afraid someone would be hurt or killed. He feared for his own imminent bodily injury at that time. He estimated he was “between 30 to 40 yards away” from the upstairs window at that time. He described the lighting situation generally and when asked about the illumination within appellant's apartment, he responded, “There were a few lights on, but it was kind of dark in there. I mean, he was a little bit backlit when he stuck his face out, but you could see.” There were lights coming from a nearby shopping center and parking lot. Silvia did not know what kind of firearm appellant was shooting-all he saw was the muzzle flash. Silvia testified he did not believe the two shots fired in his direction were random. Based on all the circumstances he saw, he believed appellant was aiming at his face. Silvia said the gun being fired was a deadly weapon.
        SWAT   See Footnote 11  Officer Robert Cockerill briefly described the SWAT team's role. Cockerill explained to the jury that a barricaded person like appellant has the “upper hand” when in a stronghold because he knows the house, he has weapons, and he can fortify and “booby-trap” his house. When SWAT arrived and relieved the patrol officers, the suspect was firing multiple gunshots from the apartment. During this incident, Cockerill acted as a sniper. He explained the role of a sniper to the jury, including the ability to “take a life to save a life.” He described how they took position in an adjacent apartment and observed the apartment “for hours.” What they saw most of that time was “muzzle flash, multiple gunshots coming out of what we refer to as-he was on the second story.” Cockerill estimated he saw twenty muzzle flashes and heard fifty-to-seventy-five rounds fired during the time he was there. He felt he had good cover and concealment. He believed that everyone at the scene was in danger.
        SWAT Officer Richard Emberlin explained generally to the jury his actions when he arrived at the scene, including shooting out a street light and deploying twenty-five to thirty rounds of tear gas. Emberlin explained that on that particular day, producers from the TV show “Dallas SWAT” were videotaping everything that occurred. Emberlin has seen both the raw and edited versions of the videotape. Three CDs were marked as State's Exhibits 64, 65 and 66.   See Footnote 12  The edited version of the videotape was played for the jury. Emberlin testified he was present when the shooter was brought out. He identified appellant as the shooter. He also explained he had no information or intelligence that there ever was more than one person in the building.
        On cross-examination, Emberlin explained he arrived on the scene within thirty minutes of the call. Emberlin did not think any shots were fired directly at him. Rather, there was a lot of random gunfire. Part of the time, he was on the street and part of the time, he was in an armored personnel carrier. He used a map to describe the locations of officers who were rescued. State's exhibits 65 and 66, the raw versions of the videotape, were played for the jury. Emberlin explained how some of the comments being heard were made by the producers, not by members of the SWAT team. He expressed satisfaction with the resolution of this situation with no one being hurt.
        Senior Corporal Randy Lancaster testified he was one of the SWAT officers who responded to the offense and he appears on the videotape. Within about five minutes of his arrival, three rounds hit the sidewalk, all within about one foot of him and other officers. At the time, they were behind a bush rather than hard cover. Once the rounds began coming within a foot of him, he pulled back. He was part of the team who gained entry through a neighbor's apartment. A couch was blocking appellant's door when they first tried to break it down. After the team eventually entered appellant's apartment, Lancaster saw piles of ammunition. Just before the officers gained entry, appellant had been leaning out the window vomiting due to the tear gas and the room was still full of tear gas. Because of the conditions, it was hard to see inside the apartment.   See Footnote 13  On cross-examination, Lancaster conceded appellant may have opened the door for the officers and that he may have been shooting randomly out the window. Appellant's own apartment had been shot up. Pictures of appellant after he was “patched up” were admitted into evidence, without objection.
        Lancaster testified that shooting guns out windows is “[v]ery, very reckless.” Lancaster testified that appellant was probably too occupied with his own discomfort because of the tear gas to have returned fire at the officers, and that was part of their plan. When asked if he believed the defendant was intentionally shooting at him when he was underneath the awning covering the window, Lancaster said he did. He was in full police uniform and SWAT gear, helmet, and vest.         SWAT Officer Steven Solaja testified he responded to the scene and joined Lancaster. He corroborated much of Lancaster's testimony. When asked whether he believed appellant was intentionally shooting at him and Lancaster, Solaja responded, “[a]bsolutely, because of the reason knowing - a suspect knowing that the police is out there, and that we're going to make an assault. And if he wounds or downs one of our officers, that's going to eliminate that assault. And that's going to cause us to do an officer rescue versus assaulting of that apartment.” He testified he believed appellant's acts were volitional, intentional acts in that there was a method to what he was doing. Solaja said there were so many shots he could not count them. When asked how many he thought were directed down at him and Lancaster, he responded, “I'd say a minimum in the area of a hundred.” He believed appellant could see their location. Solaja believed appellant was shooting at them to “keep [them] at bay” and that he absolutely felt threatened.
        SWAT Officer Keith Rieg testified he served that night as a counter-sniper-providing protection for the entry team and gathering intelligence through use of optics, binoculars, and his rifle scope. He would have also, if necessary, provided lethal force at the command post's request. Rieg saw lots of shots fired including, “three [shots] that came zinging into the wall beside me and rained down the debris beside me was enough for me to hunker down, but there were multiple rounds fired in my direction.” He saw Solaja and Lancaster take fire that night. He did not believe the gunfire directed at him, Solaja, and Lancaster was random because it was “too well directed or too close to their vicinity to be random.” Rieg learned appellant was using armor-piercing bullets. Based on what he saw that night, he believed appellant intended to shoot police officers.
        Dallas Police Detective Richard Dodge, assigned to the physical evidence section (PES),   See Footnote 14  was called to appellant's apartment. When he arrived, he talked to the officers inside, got a general idea of what happened, and then photographed the scene and collected firearms, fired cartridge cases, and live ammunition. Dodge identified photograph exhibits and he described the “extensive” damage done to the apartment by bullets. He testified he saw evidence of alcohol use. He identified the firearms collected, such as a “Ruger” assault rifle, and he described the weapons and the kinds of ammunition each used. He described the flash depressor on one rifle; he explained that one would still see a flash if one was looking directly at it when it was fired.
        On cross-examination, Dodge testified that notwithstanding the several hundred rounds fired that night, he did not collect any gunshot evidence. Dodge did not know appellant had shot at his own truck. Dodge testified he found no evidence of bullet fragments or marks in concrete or metal, but further testified that does not mean there was not anything fired that way.
        The defense did not present any evidence. When the court's charge was presented, counsel stated, in relevant part, “I believe that we would be entitled to a charge on the possibility of deadly conduct as a lesser-included offense of this, and we would ask for that to be included in the charge.” The trial court “overrule[d] the objection.”
        On appeal, appellant contends, in a sole point of error, that the trial court erred in denying him a charge on the lesser-included offense of deadly conduct. In the trial court, appellant identified Lancaster's testimony as being the basis for his request for such a charge.   See Footnote 15  On appeal, appellant contends the evidence shows he was shooting at a darkened area, from behind closed blinds, and could not have seen the officers without stepping outside. Appellant argues that had he intended to kill, he had ample opportunity to do so, yet no one was injured. He further agues that discharging a firearm into a group of people is deadly conduct. Appellant contends he was harmed by receiving a sentence in excess of that which would have been imposed for the lesser-included offenses.
        The State, on the other hand, contends that assuming error is preserved, the trial court's exclusion of the instruction was correct, because felony deadly conduct is not a lesser included offense of aggravated assault by threat with a deadly weapon. Felony deadly conduct requires the discharge of a firearm; the charged offense did not. Therefore, argues the State, the court properly denied a felony deadly conduct instruction because there was no affirmative evidence that appellant's actions were merely reckless and not intentional or knowing.
 
Indictment
        In relevant part, the indictment in each case reads as follows
. . . unlawfully then and there intentionally and knowingly threaten [officer], hereinafter called complainant, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: firearm, during the commission of the assault, and said complainant was at the time of the offense a public servant, namely, a City of DALLAS Police Officer engaged in the lawful discharge of an official duty, and said defendant knew that complainant was a public servant . . . .
 
Elements of Charged Offense of Aggravated Assault
        Appellant was charged under section 22.02 of the Texas Penal Code. That section states, in relevant part, as follows:
(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person:
. . .
        (2) uses or exhibits a deadly weapon during the commission of the assault.
 
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:
. . .
        (2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:
. . .                        
                (B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
. . .
 
(c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer.
Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009).
 
Elements of Deadly Conduct
        Section 22.05 of the Texas Penal Code sets out the elements of deadly conduct. In relevant part it states:
(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
 
(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:
 
        (1) one or more individuals . . .
 
(e) An offense under subsection (a) is a Class A misdemeanor. An offense under subsection (b) is a felony of the third degree.   See Footnote 16 
 
Tex. Penal Code Ann. § 22.05 (Vernon 2003).
Lesser Included Offense Instructions
        In determining whether appellant was entitled to a lesser included offense instruction, we apply the two-pronged Royster test. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). We must determine (1) whether the lesser offense is included within the proof necessary to establish the charged offense and (2) whether evidence exists in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty of only the lesser included offense. Id.; see Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). To be entitled to an instruction on a lesser included offense, some evidence must show, among other things, that if the accused is guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 672-73. Evidence from any source may raise such a defensive issue. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). If the evidence raises the issue and if the defendant properly requests a jury charge on the issue, the trial court must submit the issue to the jury. Roberts v. State, 590 S.W.2d 498, 500 (Tex. Crim. App. [Panel Op.] 1979). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). In making our determination, we must review all evidence presented at trial. Rousseau, 855 S.W.2d at 673.
        The State contends felony deadly conduct is not a lesser included offense of aggravated assault by threat because (1) deadly conduct requires proof of an additional fact-that appellant actually discharged a firearm-that is not required to prove the charged offense; (2) deadly conduct requires the same culpable mental state, knowledge, as the charged offense;   See Footnote 17  and (3) deadly conduct is a completed offense, not an attempted one, and deadly conduct would not fall within the scope of article 37.09(4). See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006) (defining when an offense is a lesser included offense). Thus, because the requisites of Royster's first prong were not met, the trial court properly denied the felony deadly conduct instruction. We agree with the State. As charged, felony deadly conduct is not a lesser included offense of aggravated assault by threat.
        Misdemeanor deadly conduct, however, is a lesser included offense of aggravated assault by threat with a deadly weapon as charged in the indictment. See Bell, 693 SW.2d at 439 (holding that under article 37.09(1) of Texas Code of Criminal Procedure, reckless conduct is a lesser included offense of “the offense charged” because it is established by proof of same facts required to establish commission of aggravated assault by use of a deadly weapon). Thus, the remaining question for us to decide is the same as that in Bell: whether there is some evidence that appellant, if guilty, is guilty only of the lesser included offense of reckless conduct. We conclude there is not.
        The sole issue concerns appellant's state of mind. Unlike in Bell, appellant did not testify at either stage of the trial.   See Footnote 18  There is no evidence appellant's actions were not knowing or intentional. There is much evidence to the contrary: that appellant knowingly and intentionally shot in the direction of the three complainants named. Lancaster, upon whose testimony appellant relies to raise the issue of reckless conduct, is not a complainant in any of the cases and his observations apply only to the shots fired at him and other nearby officers. Lancaster offered no opinion about appellant's mental state when appellant fired at the three named complainants. Thus, Lancaster's testimony was not germane to the charged offenses.
        Although the jury could have disbelieved certain evidence presented, that is insufficient to raise the issue of whether appellant was guilty only of misdemeanor reckless conduct. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). There must be some evidence directly germane to the lesser included offense. Id.; see also Tex. Penal Code Ann. § 6.03 (Vernon 2003) (defining culpable mental states).
        To satisfy the second prong of Royster there must be evidence that appellant did not act intentionally or knowingly in order to prove that if guilty, he was guilty only of misdemeanor reckless conduct. No such evidence was presented. Thus, the evidence did not raise the issue, and the trial court did not err by failing to include it within the jury charge.
        We affirm the judgment in each case.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
080469F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The three complainants in these cases are Dallas Police Officers William Silvia, David Detamble, and Jennifer Mamola.
Footnote 3 Previously, appellant had been found incompetent and sent to Vernon State Hospital; however, just prior to trial, the trial judge entered judgments restoring his competency.
Footnote 4 In our analysis, we must determine whether there is some evidence that appellant, if guilty, is guilty only of the lesser included offense of deadly conduct; thus, a recitation of the facts is necessary. See Bell v. State, 693 S.W.2d 434, 439 (Tex. Crim. App. 1985). We must review all evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
Footnote 5 At the time of trial, Turner was no longer a Dallas police officer and had moved to Arkansas.
Footnote 6 Detamble testified he knew better than to stand in front of the door.
Footnote 7 Detamble later learned the vehicle was appellant's truck.
Footnote 8 Tactical is also known as “SWAT.”
Footnote 9 He explained that “a report” is “cop-speak” for gunfire.
Footnote 10 He explained that a patrol rifle is more accurate and has more range than a handgun.
Footnote 11 He explained to the jury SWAT stands for “Special weapons and tactics.”
Footnote 12 State's exhibit 64 was the edited version of Dallas SWAT and exhibits 65 and 66 were the raw versions. They were admitted into evidence without objection.
Footnote 13 Lancaster described it as “[v]ery gassy, smoke-filled. I mean, it was burning your skin. Even with the gas mask on, it was very hard to breathe inside the apartment, very messy, very cluttered, just stuff everywhere.” Appellant was alone in the apartment when the officers got to him. Lancaster saw firearms in the apartment, both a rifle and a shotgun, which are deadly weapons.
Footnote 14 The PES processes crime scenes for the preservation and collection of evidence.
Footnote 15 Lancaster testified that appellant had shot up his own apartment and that he may have been randomly shooting out of his window. However, he also testified that, in his opinion, appellant's conduct was knowing and intentional. Lancaster was not a named complainant in any of the three indictments.
Footnote 16 Defense counsel did not specify in his request of the trial court to include a lesser included offense charge whether he was seeking a charge on misdemeanor or felony deadly conduct, or both. However, at trial defense counsel stated that “the statute that would apply would be the misdemeanor offense of deadly conduct.”
Footnote 17 Although the indictment charged in the conjunctive the jury instructions properly charged in the disjunctive.
Footnote 18 In Bell, the defendant denied intentionally shooting into the complainant's trailer. He testified he was shooting in the air where he would not hit anything.