KAHANTI DIJION BAZILE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00810-CR
............................
KAHANTI DIJION BAZILE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-35201-WV
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OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        A jury convicted appellant Kahanti Dijion Bazile of aggravated assault with a deadly weapon and assessed punishment at seven years' imprisonment.   See Footnote 1  In seven points of error, Bazile contends the trial court abused its discretion by permitting the State to introduce evidence of an extraneous offense; the evidence is legally and factually insufficient to support his conviction and the trial court erred in denying his motion for directed verdict, because the state failed to prove assault by threat; the evidence is factually insufficient to support his identification as the gunman; and the trial court abused its discretion by denying his motion for new trial because the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Evidence of the Aggravated Assault
        Complainant Lovie Robinson testified that in the late afternoon or early evening of November 1, 2007, she was at her home at 202 Alexander Court, Irving, Texas. No one else was in the house with her at the time. She heard gunshots coming from the back of her house. Her daughter Nafeisa Robinson's bedroom is located at the back of the house. Upon hearing the gunshots, Lovie ran out the front door.
        Lovie testified that it was not yet dark at the time. Once outside, Lovie saw a man with dreadlocks, whom she recognized as Bazile, running from the direction of the backyard of her home. Lovie testified that Bazile came from the side of her house and that she saw Bazile running northbound on Alexander Street. Bazile had a gun, and he turned around and pointed the gun at Lovie. Lovie stopped approaching the man. Bazile said to Lovie, “Bitch, what you think now?” Bazile turned back around and started running away. Lovie responded, “You are going to jail.” Lovie then returned to her house, and Bazile continued to run away. Lovie identified Bazile in the courtroom as the man who pointed the gun at her on November 1, 2007.
        Lovie testified that it frightened her when Bazile pointed the gun at her. She was afraid Bazile was going to shoot her, and she thought a gunshot could injure, paralyze, or kill her.
        Lovie called the police. The police officer who responded to the call asked Lovie to write a statement. In her statement, she indicated that she was about thirty feet from Bazile when he pointed a gun at her and said, “What you think now, bitch.”
        Detective Bill Kiernat with the Irving Police Department testified that he received a call at about 6:30 p.m. on November 1, 2007 that gunshots were fired into Lovie's house. When he arrived at the location, it was dark. Lovie told Detective Kiernat that she heard gunshots, exited the house and was walking toward Alexander Street when she saw Bazile. According to Lovie, Bazile was thirty feet from her when she saw him running northbound on Alexander Street. Detective Kiernat's understanding was that Bazile pointed a gun at Lovie while Bazile was running and said, “What do you think of me now, bitch.”
        According to Detective Kiernat, seven shell casings were recovered from the front yard of a house adjacent to Lovie's. The perpetrator was standing in close proximity to a tree where the casings were found and fired a minimum of seven shots at Lovie's house. Detective Kiernat determined that a shot had impacted a bedroom window and one shot had impacted an air conditioning unit on the back of the house. Detective Kiernat identified a number of photographs, including images showing a trajectory path of a bullet into sheetrock inside the house, an air conditioning unit with a bullet hole in it, and shell casings. The area was canvassed for witnesses, and several witnesses were interviewed.
        Wilfredo Chacon and Melania Nambo, neighbors of Lovie, testified regarding the gunman. Chacon saw someone shooting a gun into the ground. Chacon saw the man from behind, and he described the man as 5 feet 4 inches tall weighing around 160 pounds with long, curly hair, and wearing a big shirt and jeans shorts. Melania Nambo was at home when she heard a gunshot. After going outside, Nambo heard more gunshots. A man walking onto the property across the street was shooting into the ground. Nambo saw the man from behind and she described him as having long hair with something tied around his hair.
        Bazile testified he did not go to or shoot at Lovie's house on November 1, 2007. He further testified that he did not point a gun at Lovie. Bazile testified that he dated Nafeisa. While he never had an argument with Lovie, he never got along with her, and Nafeisa's family “put down” Bazile. When he began to feel tension concerning his dating relationship with Nafeisa, he told her they needed to go their separate ways.
Discussion
        In his first point of error, Bazile contends the trial court erred by admitting evidence of an extraneous offense at the guilt-innocence phase of the trial. The State sought to introduce evidence that on November 1, 2007, Bazile threw a brick through the window of Lovie's house, punched Nafeisa numerous times, and threw a brick that struck Nafeisa's arm.
        Bazile objected to admission of evidence of the unindicted extraneous offense on the grounds that: (1) the State was required to prove that the altercation between Bazile and Nafeisa occurred, (2) there was no altercation between Nafeisa and Bazile that would have culminated in Bazile assaulting Nafeisa, and (3) any probative value was outweighed by the prejudicial effect of the evidence of the extraneous offense. The trial court admitted the evidence, finding that it was offered to show motive and provide context of the alleged assault on Lovie.
 
        With regard to the extraenous offense, Nafeisa testified that on November 1, 2007, she lived with her mother, Lovie. She was dating Bazile, and they had a disagreement that morning when Nafeisa went to Bazile's apartment and found him in bed with another woman. Nafeisa left with articles of Bazile's clothing and returned to her place of work. Bazile followed her to work to retrieve money that was in an article of clothing Nafeisa had taken. Another argument ensued between Nafeisa and Bazile at Nafeisa's work place. Nafeisa returned Bazile's clothing to him and he left.
        According to Nafeisa, she went home after work. Bazile telephoned her “talking a lot of trash.” Nafeisa was outside talking to the mailman, Dwayne Neal, when a car pulled up with Bazile and others in it. Bazile got out of the car and ran toward Nafeisa. Bazile knocked Nafeisa to the ground and began punching her. Neal pulled Bazile off of Nafeisa, and Nafeisa tried to run to the door. From a flower bed in the neighbor's yard, Bazile picked up a brick. Bazile threw the brick at Nafeisa that hit and injured her arm. After Nafeisa got inside the house, Bazile threw a brick through the front window of the house. Nafeisa testified that paramedics and police officers came to the house, and the paramedics bandaged her arm.
        Nafeisa prepared a written statement that was introduced into evidence. In this statement, Nafeisa stated Bazile brought her home after work, left, and then returned. Nafeisa indicated that while she was outside her home talking to Neal, Bazile ran “out the house,” and she ran into the house. Thereafter, according to her statement, Bazile threw a brick through a window of the house and Nafeisa returned to the front yard. Bazile jumped on Nafeisa and began hitting her. Nafeisa's statement indicates Neal intervened, at which time Bazile threw a brick at Nafeisa, hitting her in the arm. Bazile returned to the car and departed.
        Neal testified that when making a routine mail delivery to 202 Alexander Court, he noticed Nafeisa standing in the front yard crying. He approached her and asked what was wrong. As she was explaining why she was crying, Neal heard a loud screech. A car pulled up with at least four occupants in it. A man with long braids or “dreads” jumped out and ran between Neal and Nafeisa. Neal identified the man as Bazile.
        According to Neal, Bazile knocked Nafeisa to the ground and started beating and kicking her. Neal pulled Bazile off of Nafeisa. Bazile picked up a brick from a formation around a tree. Nafeisa got up and ran toward the door of her home. Just before she got in the door of the house, Bazile threw the brick toward the door. The brick hit Nafeisa on her arm and then hit the door. Nafeisa ran into the house and closed the door. Bazile picked up another piece of rock from around the tree and, with the rock held in his hands over his head, came toward Neal. Neal reached into his shirt pocket for a can of mace he used as dog repellant. Neal said to the Bazile, “I wish you would hit me.” Bazile turned, walked over to the house, and threw the piece of rock at the window, breaking the glass. Bazile ran back to and got into the car, and the car drove away.
        Neal's statement to the police concerning this incident was introduced into evidence. In the statement, Neal said he was delivering mail and a young man jumped out of a car and started beating Nafeisa. Neal intervened. Bazile threw a brick that hit Nafeisa in the arm and a brick through the house window. Bazile returned to the car that then sped away.
        Detective Kiernat testified that at about 3:00 p.m. on November 1, 2007, he was dispatched to the 200 block of Alexander Court. He contacted complainant Nafeisa who had experienced an altercation with her boyfriend, Bazile. Detective Kiernat was told by Nafeisa that she “walked in on” Bazile in Carrollton, they had a verbal argument, and she had gone home. Nafeisa and Neal told Detective Kiernat that Bazile came to Nafeisa's house and assaulted Nafeisa. After Neal intervened, Bazile threw a rock at Nafeisa that struck her in the arm. Detective Kiernat took photographs of Nafeisa's injuries and obtained her written statement.
        Detective Kiernat's impression of the situation was that Nafeisa seemed very credible and the evidence at the scene and witness Neal corroborated her story. Detective Kiernat believed this incident was a continuation of a situation that had developed at a different location. The earlier situation had not risen to the level of physical assault. Detective Kiernat thought the order of events was that Nafeisa was in the front yard when Bazile arrived in a car. Nafeisa retreated to the house. A brick or landscaping concrete was thrown through the window of the house. Nafeisa came out of the house and confronted Bazile, and that is when the physical altercation occurred. Detective Kiernat thought Nafeisa was less than forthcoming with information she provided in order to protect Bazile.
        Bazile testified that on the morning of November 1, 2007, Nafeisa came to his apartment and found him in bed with another woman. After finding him in bed with his fiancé, Nafeisa said, “I know how to get you. I'm going to get you.” Nafeisa left Bazile's apartment. Bazile went back to sleep and did not leave his residence the entire day. Bazile did not go to Nafeisa's work, and he did not drive her home from work that day. According to Bazile, he did not go to Nafeisa's residence on the afternoon of November 1, 2007, assault Nafeisa, or throw a rock into Nafeisa's parents' home. Bazile had seen the mailman Neal on numerous prior occasions when Bazile was at Nafeisa's home. Nafeisa had told Bazile that Neal wanted to have sex with Nafeisa and Lovie.
        We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The trial court's ruling must be upheld if it is reasonably supported by the record and correct under any applicable theory of law. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
        Generally, evidence of extraneous acts may not be used against an accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005); see also Tex. R. Evid. 404(b). Extraneous offense evidence is admissible, however, under rule 404(b) if the extraneous act is relevant to a fact of consequence apart from its tendency to demonstrate character conformity. Casey, 215 S.W.3d at 879. An appellate court must give deference to a trial court when it decides not to exclude extraneous offense evidence and finds that the probative value of that evidence is not outweighed by the danger of unfair prejudice. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We must decide whether the extraneous offense evidence meets an exception under rule 404(b).
        An exception to exclusion of evidence under rule 404(b) is that an extraneous offense can be used to prove motive. Tex. R. Evid. 404(b). The State is entitled to prove motive “if it is relevant as a circumstance tending to prove the commission of the offense.” Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991); see also Crane v. State, 786 S.W.2d 338, 349-50 (Tex. Crim. App. 1990) (citing Porter v. State, 623 S.W.2d 374, 385-86 (Tex. Crim. App. 1981) (prosecution may always offer evidence of motive because it is relevant as circumstance to prove commission of offense).
        The trial court's admission of evidence of the assault on Nafeisa as proof of motive is a basis for admission specifically listed under rule of evidence 404(b). See Tex. R. Evid. 404(b). The arguments between Bazile and Nafeisa and the physical assault on Nafeisa by Bazile were relevant to proving Bazile's motive for returning to Nafeisa's home later that evening and brandishing a gun when confronted by Lovie.
        In addition to relying upon the exception in rule 404(b) that an extraneous offense can be used to prove motive, the trial court admitted the extraneous offense in this case as contextual evidence. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (extraneous offense evidence may be admissible as contextual evidence). There are two types of contextual evidence: (1) evidence of another offense connected with the primary offense, referred to as “same transaction contextual evidence”; and (2) general background evidence, referred to as “background contextual evidence.” Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991).
        Same transaction contextual evidence is admissible as an exception under rule 404(b) when such evidence is necessary to the jury's understanding of the charged offense. See Wyatt, 23 S.W.3d at 25. Extraneous conduct is considered to be same transaction contextual evidence when the charged offense would make little or no sense without also bringing in the same transaction evidence. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Such evidence provides the jury information essential to understanding the context and circumstances of events that are blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). The purpose of such extraneous evidence is to put the instant offense in context. Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.-Houston [1st Dist.] 2003, pet dism'd).
        Background contextual evidence is admissible because it is helpful to the jury. This type of evidence “fill[s] in the background of the narrative and give[s] it interest, color, and lifelikeness.” Mayes, 816 S.W.2d at 87. “In other words, the evidence must be necessary to the jury's understanding of the instant offense because the circumstances of the offense would make little or no sense without the admission of the background contextual evidence.” Smith v. State, 200 S.W.3d 644, 649 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd).
        Here, evidence of the assault on Nafeisa earlier in the day was necessary to the jury's understanding of the instant offense because it was intertwined with the assault against Lovie. In order for the State to adequately describe the events leading to Bazile's assault of Lovie, the State needed to explain fully what had occurred between Bazile and Nafeisa at Lovie's home earlier in the day. The assault of Nafeisa provided the jury with a context to show the relevant surrounding facts and circumstances relating to the assault against Lovie. See Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (jury is entitled to know all relevant surrounding facts and circumstances of charged offense).
        Based on the record before us, we conclude that the extraneous offense evidence admitted by the trial court was relevant to proving motive to commit the charged offense and constituted same transaction contextual evidence. At a minimum, the trial court's ruling admitting the extraneous offense evidence is within the zone of reasonable disagreement concerning whether the evidence was necessary to understand the motive for or the contextual background of the charged offense. We, therefore, find no error in the admission of this evidence under an exception to rule 404(b). See Smith, 200 S.W.3d at 649.
        Bazile argues that the extraneous evidence is highly prejudicial and its probative value does not substantially outweigh its prejudicial effect. Even if extraneous offense evidence satisfies the requirements of rule of evidence 404(b), to be admissible, it must also satisfy the balancing test of rule of evidence 403. Tex. R. Evid. 403; Montgomery, 810 S.W.2d 372, 377 (Tex. Crim. App. 1991); Swarb v. State, 125 S.W.3d at 681. Although a trial court must perform a balancing test to determine if the probative value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury's comprehension of the whole criminal transaction. Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986); Swarb, 125 S.W.3d at 681. The rationale is that the context of an offense is almost always admissible because “events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all the evidence may be realistically evaluated.” Mann, 718 S.W.2d at 744. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002).
        A rule 403 balancing test includes the following factors: (1) how compellingly evidence of the extraneous offense serves to make a fact or consequence more or less probable; (2) the extraneous offense's potential to impress the jury in some irrational but indelible way; (3) the trial time that the proponent will require to develop evidence of the extraneous misconduct; (4) the proponent's need for the extraneous transaction evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); see also Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1996). Here, the testimony regarding the assault on Nafeisa is inherently probative because it serves to prove Bazile had a motive for the assault later that day at the same location as the earlier assault on Nafeisa. The first factor favors admission. As to the second factor, there is nothing in the record to indicate Bazile's prior bad act would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged” in the aggravated assault charge, especially given the trial court's limiting jury instruction.   See Footnote 2  See Old Chief v. United States, 519 U.S. 172, 180 (1997). This is evidenced by the jury's finding Bazile not guilty of the second charge of deadly conduct for allegedly discharging a firearm in the direction of and into Lovie's house. Moreover, the nature of the assault on Nafeisa was not so gruesome or shocking that the jury would be moved in an irrational, but indelible way. See Erazo v. State, 144 S.W.3d 487, 490 (Tex. Crim. App. 2004) (quoting Martin v. State, 475 S.W.2d 265, 267 (Tex. Crim. App. 1972)) (photographs are not rendered inadmissible merely because they are gruesome or might tend to arouse passions of jury, unless offered solely to inflame minds of jury). Accordingly, this factor also favors admission. The third factor looks to the “time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citing Montgomery, 810 S.W.2d at 389-90). In its case in chief, the State presented a total of six witnesses. Of those witnesses, Nafeisa, Neal, and Detective Kiernat testified regarding the assault on Nafeisa. However, Detective Kiernat also testified regarding his second call to Lovie's residence concerning the assault on Lovie, testimony which was necessitated regardless of whether the evidence of the assault on Nafeisa was admitted. The third factor does not require exlusion of the testimony in this case regarding the extraneous offense. The fourth factor entails consideration of the state's need for the extraneous offense evidence. The testimony of Nafeisa, Neal, and Detective Kiernat regarding the assault on Nafeisa was highly probative in establishing motive for and context of the assault on Lovie. Thus, the final factor also weighs in favor of admission of the evidence.
        The circumstances justifying the admission of extraneous offense evidence vary and each case must be determined on its own merits. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). The court of criminal appeals has observed that evidence of extraneous offenses is admissible to show the context in which the criminal act occurred and the “jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied sub nom. Wesbrook v. Thaler, 130 S. Ct. 1889 (U.S. 2010); see also Swarb, 125 S.W.3d at 683 (no abuse of discretion where extraneous evidence concerned event occurring same day as charged offense). The trial court, after balancing the rule 403 factors, could have reasonably concluded the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. On this record, and bearing in mind there is a presumption in favor of admission of relevant testimony, we cannot conclude the trial court abused its discretion by admitting evidence of the assault on Nafeisa. We, therefore, overrule overrule Bazile's first point of error.
        In his second and fourth points of error, respectively, Bazile asserts the evidence is legally and factually insufficient to support the conviction for aggravated assault because the State failed to prove assault by threat. To support Bazile's conviction of aggravated assault, the State was required to prove beyond a reasonable doubt that Bazile intentionally or knowingly threatened Lovie with imminent bodily injury and used or exhibited a deadly weapon during the commission of the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2010).         The Texas Court of Criminal Appeals has recently directed that:
 
the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond reasonable doubt.
 
Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at *5, *8 (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
        The offense of assault, as defined in section 22.01(a)(2) requires that one act with intent to cause a reasonable apprehension of imminent bodily injury, although not necessarily with intent to inflict such harm. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); see also Olivas v. State, 203 S.W.3d 341, 346-47 (Tex. Crim. App. 2006) (although question whether defendant's conduct produced fear in victim is relevant, crucial inquiry remains whether assailant acted in manner as would under circumstances portend immediate threat of danger to person of reasonable sensibility).
        Lovie testified that Bazile pointed a gun at her. Testimony by a lay witness that a defendant used a firearm during the commission of an offense is sufficient to support a finding of use and exhibition of a deadly weapon. Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985). Detective Kiernat testified that a firearm is a deadly weapon capable of causing serious bodily injury.   See Footnote 3  Lovie testified that she felt afraid when Bazile pointed the gun at her. Aiming a deadly weapon at a supposed victim is sufficient evidence of a threat to sustain an aggravated assault conviction. Ward v. State, 113 S.W.3d 518, 521 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex. App.-Amarillo 1997, no pet.).
         The jury was the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, was free to accept or reject any or all evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury, as fact finder, could consider a defendant's objective conduct, his acts, words, or deeds and infer from the totality of the circumstances whether his overall conduct placed the complainant in fear of serious bodily injury. See Dobbins v. State, 228 S.W.3d 761, 765 (Tex. App.-Houston [14th Dist.] 2007, pet. dism'd) (aggravated assault on public servant); see also Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex. App.-Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App. 1992) (aggravated sexual assault). The reviewing court must give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19).
         The jury was entitled to accept Lovie's testimony establishing that Bazile pointed a gun at her and she was frightened, and we will not substitute our own determination for that of the jury. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Bazile intentionally or knowingly threatened Lovie with imminent bodily injury and Bazile exhibited a deadly weapon during the commission of the assault. The jury could reasonably infer Bazile's overall conduct placed Lovie in fear of serious bodily injury or death. Thus, we conclude the evidence is legally sufficient to support Bazile's conviction for assault by threat. We overrule Bazile's second and fourth points of error.         Bazile asserts in his third point of error that the trial court erred by failing to grant Bazile's motion for directed verdict because there was legally insufficient evidence to prove assault by threat. We concluded there was legally sufficient evidence of assault by threat in our disposition of Bazile's second and fourth points of error. Accordingly, we conclude the trial court did not err in failing to grant Bazile's motion for directed verdict. See Tex. R. App. P. 47.1. We overrule Bazile's third point of error.
        In his fifth point of error, Bazile contends there is factually insufficient evidence to support the identification of Bazile as the gunman.   See Footnote 4  Bazile contends that eyewitness identification is considered inherently unreliable, but that even if this is not an instance of mis-identification, Lovie had reason to fabricate the incident or identification of Bazile as the perpetrator.
        In his brief, Bazile acknowledges that Lovie testified as an eyewitness and that a conviction may be based on the testimony of a single eyewitness. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.-Texarkana 2004, pet. ref'd). Bazile further acknowledges that he was known to Lovie, he was listed by name in the written statement Lovie gave to the police, and Lovie identified Bazile at trial.
        We defer to the jury's determination of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Tex. Code Crim. Proc. Ann. art. 38.04; Brooks, 2010 WL 3894613, at *5. After reviewing the evidence in the light most favorable to the verdict, as we must in a challenge to the legal sufficiency of the evidence, we conclude the jury was rationally justified in finding beyond a reasonable doubt that Bazile was the individual who pointed a gun at Lovie. Id. We overrule Bazile's fifth point of error.         In his sixth point of error, Bazile asserts the trial court erred in denying Bazile's motion for new trial because the evidence is legally insufficient to establish that Bazile threatened Lovie with imminent bodily injury. We review a trial court's ruling on a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Having concluded in our disposition of Bazile's second and fourth points of error that the evidence was legally sufficient to support Bazile's conviction for assault by threat, we necessarily reject Bazile's sixth point of error. See Tex. R. App. P. 47.1; Brooks, 2010 WL 3894613, at *5. The trial court did not abuse its discretion in failing to grant a new trial. We overrule Bazile's sixth point of error.
        In his seventh point of error, Bazile contends the trial court erred in denying Bazile's motion for new trial because the evidence is factually insufficient to support identification of Bazile as the gunman. Having concluded in our disposition of Bazile's fifth point of error that the evidence was legally sufficient to support identification of Bazile as the gunman, we necessarily reject Bazile's seventh point of error. See Tex. R. App. P. 47.1; Brooks, 2010 WL 3894613, at *5. We overrule Bazile's seventh point of error.
 
Conclusion
        We affirm the trial court's judgment.
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090810F.U05
 
Footnote 1 Bazile was also charged with deadly conduct for allegedly discharging a firearm in the direction of and into Lovie Robinson's house. However, the jury found Bazile not guilty of deadly conduct.
Footnote 2 The jury was instructed in the charge that:
 
 
certain evidence concerning an alleged offense or offenses other than the offense alleged in the indictment may only be considered if: (1) you believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any; and (2) even then, you may only consider said evidence in determining the motive, opportunity, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense alleged against him in the indictment. You are not to consider this evidence for any other purpose.
Footnote 3 The penal code defines “deadly weapon” as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2010).
Footnote 4 Subsequent to the parties filing their briefs and submission of this appeal, the Texas Court of Criminal Appeals issued its opinion in Brooks. Bazile filed a motion requesting this Court to consider his fifth point of error under the legal-sufficiency standard. See Brooks, 2010 WL 3894613, at *1. Bazile's motion was granted.