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

MEMORANDUM 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, and 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

AFFIRMED

A jury found defendant, Steven Antonelli, guilty on three counts of deadly conduct. The trial court assessed punishment. Because all issues of law are settled, our opinion only advises the parties of the court s decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

SUFFICIENCY OF THE EVIDENCE

Defendant was charged with engaging in deadly conduct that placed the three complainants in imminent danger of serious bodily injury by pointing a firearm at and in the direction of each of the complainants. See Tex. Pen. Code Ann. 22.05 (Vernon 2003). A person commits the offense of deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. Id. at 22.05(a). Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded. Id. at 22.05(c).

In his first issue, defendant asserts the evidence is legally and factually insufficient to support a finding that he had a firearm, or if he did, that he pointed the gun at any person or discharged the gun, and there is no claim or evidence that any claimant was personally threatened with harm. Defendant asserts he felt threatened by the complainants and he held a hammer, not a gun. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

The complainants, all teenagers, were part of a group standing outside a house next door to defendant s house. At some point in the evening, defendant left his house. When he returned, he asked the teenagers to move a vehicle, which he claimed blocked his driveway. According to the complainants, they could not move the vehicle because they did not have the keys and defendant became upset. One of the complainants, Nick Icenogle, testified he and his friends started to walk toward their own cars when he heard a gun cock. Icenogle turned and saw defendant holding a gun. Complainant George Atiee testified that when they told defendant they did not have the keys to move the car, defendant went back to his truck and pulled out a gun. As Icenogle and Atiee got into Icenogle s truck, both boys saw defendant standing by Icenogle s driver-side window. Both testified that defendant was holding the gun toward the truck s hood and yelling that he would shoot the engine and tires out if they did not move. Both described the gun as black, and Atiee testified the gun was either a nine millimeter or a forty-five caliber. Icenogle said he felt threatened. Atiee said defendant made him nervous when he was pointing the gun at the truck and it seemed pretty threatening. As Icenogle drove away, he glanced in his rearview mirror and saw defendant standing at the car of two girls and yelling at them. The third complainant, Camille Wagner, testified that, as she sat in her car, defendant banged a gun on the front windshield of her car and she thought that either the gun would go off or defendant would shoot someone. She described the gun as a black handgun. Defendant said he did not own a nine millimeter, but he did own a forty-five caliber.

We conclude the evidence is legally and factually sufficient.

BOLSTERING

During trial, the prosecutor asked the investigating officer if he believed that the kids were telling . . . the truth. Although we agree with defendant that this question amounted to improper bolstering and the trial court erred in overruling defense counsel s objection, we conclude defendant was not harmed by the error.

Because the defendant and three complainants were the only witnesses to testify about the incident, the State s case was based entirely upon the veracity of the witnesses testimony. However, defendant admitted he said he would blow out the tires and engine block. The testimony of each of the complainants was consistent in that they each saw defendant holding a gun, not from a distance, but in close proximity to the cars in which they sat. Atiee, who is familiar with guns, testified to the caliber of the gun. Defendant admitted to owning a forty-five caliber gun. Based on this record, we conclude the error did not affect defendant s substantial rights. See Tex. R. App. P. 44.2(b).

CONCLUSION

We overrule defendant s issues on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH