Tottenham, Willie Cleven v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed August 25, 2005

Affirmed and Memorandum Opinion filed August 25, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00143-CR

______________________

WILLIE CLEVEN TOTTENHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 910,273

MEMORANDUM OPINION

Appellant, Willie Cleven Tottenham, was charged by indictment with aggravated assault of a police officer. See Tex. Pen. Code Ann. ' 22.02 (Vernon Supp. 2004B05). Appellant pled Anot guilty,@ but after considering the evidence, a jury convicted appellant as charged. The court then found two felony enhancement paragraphs true and assessed appellant=s punishment at sixty years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant contends the evidence was legally and factually insufficient to sustain his conviction.

The record reflects that on the night of April 27, 2002, Officer Mario Gehret of the Missouri City Police Department observed appellant make an illegal U-turn. Gehret proceeded to make a routine traffic stop, but upon talking with appellant, smelled alcohol on appellant=s breath and observed an open container of beer on the vehicle=s center console. Concerned that appellant was intoxicated, Gehret asked appellant to step out of the vehicle and requested his permission to search the car. Appellant consented to the search. As a precursor to performing the vehicle search, Gehret asked appellant to place his hands on top of the car so that a Apat down@ could be conducted for safety purposes. Appellant again complied with Gehret=s request.

During the frisk, Gehret felt what he believed was a pistol in appellant=s overall bib pocket. To ensure his safety, Gehret placed his hand on the outside of appellant=s pocketCover the pistolCand attempted to peer inside the pocket to verify that it was, in fact, a firearm. When Gehret attempted to retrieve the object, appellant moved his hand from the car to his chest and placed it on top of Gehret=s hand. Fearing for his safety, Gehret wrestled appellant to the ground. Despite Gehret=s efforts to maintain control over appellant and the weapon, appellant allegedly removed the pistol from his pocket and began to stand up. Gehret, who was still on the ground, then pulled his service pistol and fired two shotsCone of which struck appellant in the thigh. Gehret then ran for cover behind his patrol car and called for back up. At some point during the confrontation, appellant allegedly threw the pistol into a nearby field. Additional officers arrived on the scene, and Gehret was able to restrain and handcuff appellant. Appellant was then transported to the hospital for treatment of the gunshot wound. Meanwhile, investigators found a Bersa .380 on the ground near the passenger side of appellant=s vehicle. Appellant was subsequently charged with aggravated assault.

In two points of error, appellant argues the evidence is legally and factually insufficient to sustain his conviction. Specifically, appellant contends the evidence fails to prove that he used or exhibited a firearm during the commission of the assault. He also suggests that he never possessed a firearm during the assault and further claims that nothing affirmatively links him to the Bersa pistol that was recovered at the scene. Accordingly, appellant claims the State failed to prove beyond a reasonable doubt that he committed aggravated assault.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 ( Tex. Crim. App. 1991). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

When reviewing claims of factual insufficiency, it is our duty to examine the fact finder=s weighing of the evidence. Clewis v State, 922 S.W.2d 126, 133B34 (Tex. Crim. App. 1996). Thus, the question presented in a factual sufficiency review is, AConsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?@ Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which the evidence may be insufficient:

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can Apreponderate@ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can Aoutweigh@ the contrary proof and still be factually insufficient under a beyond a reasonable doubt standard.

Id. at 484B85.

To secure a conviction for assault, the State must prove the defendant intentionally or knowingly threatened another person with imminent bodily harm; or intentionally or knowingly caused an offensive contact with another. See Tex. Pen. Code Ann ' 22.01(a)(2)B(3) (Vernon Supp. 2004B05). However, aggravated assault requires proof of an additional element. For aggravated assault, the State must prove beyond a reasonable doubt the defendant used or exhibited a deadly weapon during the commission of the assault. See id. ' 22.02(a)(2).

Appellant contends that the evidence fails to prove he either used or exhibited a deadly weapon. He also argues that the State failed to prove he even had a pistol during the scuffle. Instead, he suggests that he merely had a cellular phone in his pocket and that the pistol found near his vehicle was not linked to him in any way.

To support his contentions, appellant first cites McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000). In McCain, the defendant was found guilty of aggravated robbery despite having never Atouched, brandished, referred to, or overtly displayed@ a butcher knife he had in his back pocket. Id. at 499. In affirming the conviction, the Court of Criminal Appeals noted that if the knife were completely concealed during the assault, then additional facts would be needed to prove the knife was Aused or exhibited.@ Id. at 503. However, the court explained that because the knife was exposed during the assault in such a way that it instilled Aapprehension@ in the complainant, the evidence was sufficient to sustain the conviction. Id. at 503B04.

Here, appellant argues that he never removed a pistol from his pocket or otherwise exposed a pistol in any manner during the alleged assault. Instead, appellant suggests that Gehret knew there was a pistol only because Gehret himself reached into and peered into appellant=s pockets. Appellant also directs our attention to the testimony of two eyewitnesses who corroborated his claim that he never displayed a pistol during the incident. Accordingly, appellant contends McCain is distinguishable and argues that he never Aused or exhibited@ a pistol in this case as is defined by the law.

To the contrary, Gehret testified at trial that, after he wrestled appellant to the ground, appellant exposed the pistol. Gehret explained that appellant removed the pistol from his overall pocket as he was trying to stand up. Gehret explicitly stated that he saw the pistol in appellant=s hand. In fact, Gehret said he shot appellant only because appellant was preparing to shoot him. To rebut appellant=s eyewitness testimony, the State also produced an eyewitness who testified that he saw appellant with a pistol in his hand when Gehret was on the ground. Because of the discrepancies in the evidence, the jury was entitled to judge the credibility of the witnesses and to believe or disbelieve all or any part of any witness=s testimony. See, e.g., Westbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Apparently, the jury believed Gehret=s testimony and the State=s evidence and found appellant=s evidence less credible. Nothing in the record suggests this belief was irrational or unsupported by proof beyond a reasonable doubt.

Appellant next suggests that he never possessed a pistol during the assault. In his brief, appellant states A[t]he hard object detected by Officer Gehret could have very well been Appellant=s cell phone.@ To support this contention, appellant directs us to testimony that he always carried his cell phone with him and that the phone was often in his overall pocket. He also notes that a cell phone was retrieved from among his personal effects confiscated by police. However, contrary to appellant=s assertion, Gehret testified that he was 90 percent certain the object he observed in appellant=s pocket was a pistol. Furthermore, Gehret explained that, at some point during the incident, he believed he saw appellant toss the pistol into a nearby field. In fact, shortly after appellant was taken to the hospital, investigators found a Bersa .380 lying near the passenger side of appellant=s vehicleCwell within throwing distance. Again, the jury heard appellant=s version of the facts, as well as the State=s, and resolved this discrepancy in favor of the State. See, e.g., Westbrook, 29 S.W.3d at 111 Cain, 958 S.W.2d at 410;Saxton, 804 S.W.2d at 914. We cannot say, based on our own review of the record, that the jury=s determination was either irrational or unsupported by the evidence.

Finally, appellant contends the evidence is insufficient to link him to the pistol found at the scene. Specifically, he argues that no fingerprint or other evidence affirmatively proves he owned or possessed the pistol. However, when a pistol is found on a defendant=s person and is in his exclusive control, as was the case here, evidence affirmatively linking him to the pistol is not required. See Davis v. State, 93 S.W.3d 664, 667 (Tex. App.CTexarkana 2002, pet. ref=d) (explaining that direct or circumstantial evidence can sustain weapons-possession charges). Therefore, because appellant was found in possession of and in exclusive control of a pistol, the evidence is sufficient to support the jury=s verdict despite appellant=s having cast the pistol aside at some point during the assault.[1]

Based on a thorough review of the evidence, both in favor of the verdict and in a Aneutral light,@ we conclude that any rational jury could have found that appellant used or exhibited a pistol during the assault. Furthermore, we find that the State=s evidence amply supports the conviction despite appellant=s contrary evidence. As such, we overrule appellant=s two points of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 25, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant also implies, based on medical records and physician testimony regarding his gunshot wound, that he was sitting or laying on the ground rather than standing as Gehret explained. He argues that this evidence undermines Gehret=s credibility and sheds doubt on the jury=s conclusions. However, our own review of the medical evidence suggests that this argument is largely exaggerated. In fact, we believe the medical records substantiate Gehret=s interpretation of the incident, including the fact that appellant was Auncooperative@ and Avery intoxicated.@