Andrea Gordon v. The State of Texas--Appeal from 108th District Court of Potter County

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NO. 07-09-00268-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 24, 2010 ANDREA GORDON, Appellant v. THE STATE OF TEXAS, Appellee _____________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 56,388-E; HONORABLE DOUGLAS WOODBURN, PRESIDING Memorandum Opinion Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Andrea Gordon was indicted for aggravated assault with a deadly weapon and convicted by a jury of the lesser offense of deadly conduct. She seeks reversal of that conviction on the basis that the evidence is legally and factually insufficient to support it. The State concedes error, and we reverse the judgment. The jury was instructed that it could convict appellant of deadly conduct it if found that she knowingly discharged a firearm at or in the direction of a building and was reckless as to whether it was occupied. See TEX. PENAL CODE ANN. §22.05(b)(2) (Vernon 2003). 1 The phrase at or in the direction of by its plain language contemplates that the firearm be discharged from some location other than the building or habitation itself. Reed v. State, 268 S.W.3d 615, 617 (Tex. Crim. App. 2008). The evidence here is undisputed that appellant fired a weapon in her own home while in her bedroom. Thus, it is not legally sufficient to support the jury s verdict, as conceded by the State. Id. at 617-18. Accordingly, we reverse the conviction and enter a judgment of acquittal. Per Curiam Do not publish. 1 Neither party challenges the jury charge on appeal. 2

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