Steven (Stephen) Antonelli v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

CONCURRING OPINION

Nos. 04-04-00492-CR; 04-04-00493-CR and 04-04-00494-CR

Steven ANTONELLI,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court Nos. 830833; 830834 & 830835

Honorable Karen Crouch, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Concurring opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 13, 2005

Initially, I note that although the information charged Antonelli with deadly conduct by pointing a firearm at and in the direction of the complainants, the jury charge properly instructed that the jury should find Antonelli guilty if the jury found that Antonelli engaged in deadly conduct by pointing a firearm at or in the direction of the complainants. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (holding that jury should be charged the differing methods of committing the offense in the disjunctive even though the indictment alleges the methods in the conjunctive). Although I agree that the evidence is sufficient to support the convictions, I write separately to detail the testimony from the record that I believe must be relied upon to support the finding that Antonelli pointed a firearm at or in the direction of the complainants.

The evidence regarding two of the complainants, Icenogle and Wagner, is fairly straightforward. Icenogle testified as follows:

Q. Isn t it true that in your statement to the police that you saw, you says [sic] I turned around and saw him waving his 9 mm?

A. Yes, sir.

Q. So he was waving a 9 mm?

A. Yes, sir.

******

Q. And you said that Steven Antonelli pointed a firearm in your direction; is that correct?

A. Yes, sir.

******

Q. He waved the firearm at the direction of you?

A. I understand the direction, but he was waving.

Q. Okay. So he waved the firearm in the direction of you. You were in the car?

A. Yes.

Q. Was he pointing it at the car?

A. Yes.

Q. Did he point the firearm at or in the direction of another person in the vicinity of the complainant? Was Joey in your car?

A. Yes, sir.

Q. Did he point the firearm in the motor vehicle or in the vicinity of the complainant?

A. Yes, sir.

******

Q. What was he holding?

A. A gun.

Q. What was he waving around?

A. A gun.

With regard to Wagner, the investigating officer testified as follows:

Q. Officer, what did she [Wagner] tell you?

A. That she had, had a gun pointed at her. She had a disturbance with her neighbor.

******

Q. With what she told you, well, you took her report that she had stated that someone had pointed a gun at her?

A. Yes.

In addition, Wagner testified as follows:

Q. At what point you had mentioned earlier that you felt a presence. Tell the jury a little bit about that. What was had you moved your car or was it which way was it facing? When did it happen?

A. My car was still facing Joy s house, and I had reversed a little bit and I was going to pull forward. And my shoulder my head was turned over my left shoulder. And then I felt a presence. Felicia said, Oh, here he comes. And so then I looked and the next like, I m kind of, like, Oh, gosh, what s he going to do now?

The next thing I know, he s banging a gun on the window, and Felicia is, like, Oh, my gosh, it s a gun.

******

Q. Would you say that the neighbor, the person waving this gun around, that he was on right beside her [Felicia]?

A. No.

Q. No? Would he be more this way?

A. Yes. He was more at the corner, yes.

Q. So more this way. If Felicia s imaginarily [sic] right here I think I just made that word up but if she s right here, he would be kind of where I m at?

A. Yes.

Q. Okay. And your windshield is about an arm s length?

A. (Nods head.)

Q. You re sitting there. Tell the jury how when did you see him? What did you notice?

A. When Felicia said he was coming and I was kind of, like, oh, gosh, what s he going to do, and then I hear a banging on the glass and I see it s a gun.

Q. You hear banging on the glass?

A. Yes.

Q. If he if this if I m him, is it, you know, a tap, tap, tap (demonstrating)?

A. No.

Q. Hi, Camille, (demonstrating noise), is it like that?

A. No.

Q. Okay. Is it louder? Is it a (demonstrating noise)?

A. It was a pretty loud bang.

******

Q. Okay. And he was banging it on your front windshield?

A. Yes.

Q. Not her passenger windshield?

A. No, ma am.

Q. But on the front windshield?

A. Yes.

Q. Okay. How many times, if you remember, did he bang it?

A. I would say about two.

The more troubling testimony relates to the third complainant, George Joseph Atiee II, whose nickname is Joey. Atiee testified as follows:

Q. Did then and there recklessly engage in conduct that places the complainant and I will put your name in here. George Atiee

A. Atiee.

Q. Atiee. Excuse me. In imminent danger of serious bodily injury by and that the defendant pointed a firearm at or in the direction of you?

A. No, sir.

Q. He did not at or in the direction. Did he wave a firearm at or in the direction of the complainant which is you?

A. No, sir.

Q. Did he point a firearm at or in the direction of another person in the vicinity of the complainant? You were standing next to Nick. Did he point the gun at or near Nick?

A. No, sir.

Q. And did he point a firearm at a motor vehicle in the vicinity of you?

A. Yes, sir.

Although Aitee s testimony does not appear to support a finding that Antonelli pointed a firearm at or in the direction of either Aitee or Icenogle, the jury could have placed more weight on the testimony of Icenogle that Antonelli was waving the gun around and that he pointed the firearm at or in the direction of another person in the vicinity of the complainant Icenogle, referring to Aitee.

In view of the foregoing testimony, I agree with the majority that the evidence is sufficient to support the jury s verdict.

Alma L. L pez, Chief Justice

DO NOT PUBLISH