
    Anthony Jerome GILBERT, Appellant v. The STATE of Texas, Appellee.
    No. 01-12-00350-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 23, 2014.
    Rehearing Overruled March 11, 2014.
    
      Ariel Payan, Austin, TX, for Appellant.
    William E. Parham, District Attorney, Washington County, Conroe, TX, for State.
    Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

A jury convicted appellant Anthony Jerome Gilbert of deadly conduct involving discharge of a firearm. See Tex. Pen.Code Ann. § 22.05(b)(1) (West 2011). On appeal, Gilbert contends that there was insufficient evidence for a rational jury to convict him. We affirm.

Background

James Daniels Sr. hosted a family barbecue at his home in Brenham, Texas. The front of the house, including the porch and windows, is depicted in State’s Exhibit 2, which is attached as an appendix to this opinion. The people in attendance included: his wife, Amy Daniels; his parents, William and Earline Mathis; his niece, Shana Daniels; and at least a half-dozen children.

The family was sitting on a recessed front porch when Anthony Gilbert approached and accused them of telling his wife about his affair with Shana. James and Amy assured Gilbert that no one had spoken to his wife. Nevertheless an argument ensued, and Gilbert was asked to leave.

Later that evening, Gilbert returned to the Daniels residence with a shotgun. After noticing the gun, James ran to the porch. Most of the rest of the family, who already had been on the porch, took cover or dove into the house. William remained on the porch.

Gilbert proceeded to fire the shotgun several times. He then retrieved his shotgun shells and left the premises. During the subsequent police investigation, marks consistent with shotgun spread were found on the far right window, only a few feet from the porch.

Gilbert was charged with committing deadly conduct by discharge of a firearm. He pleaded not guilty. At trial, James, Earline, William, and Amy testified as eyewitnesses. While there were inconsistencies about details, the witnesses generally agreed that Gilbert discharged his firearm in the direction of the house while James was on the porch.

James specifically testified that he was “on the porch” when Gilbert fired the last shot. 3 RR 36-37. Standing on the porch, James “peeked around” the corner and could see Gilbert “the whole time from the porch.” According to James, Gilbert was positioned “on the street,” “in front of the house,” and “up a little bit” — thus indicating though not expressly stating that from his perspective standing on the porch and looking out toward the yard in front of the house, Gilbert was positioned to James’s left. While James testified that Gilbert had aimed “at the house” but did not know if he had aimed specifically “at the house or me,” he also testified that “it was kind of close” to him and that he “could have got hit.” He testified, “I just fell backwards, you know what I’m saying, and I thought I was hit but I wasn’t.” 3 RR 29.

William testified that James “was on the porch” and that Gilbert shot “at the porch.” 3 RR 52-53. Earline also testified that Gilbert fired a shot in the direction of the porch and that James was among the people on the porch. 3 RR 64. She also testified that Gilbert “shot at the window that’s closest to the porch,” and that he “was standing right close up on us ... from the road he had climbed up on the grass and started shooting.” Amy testified that Gilbert “pulled a gun, he fired once I think in the air and then two more times at the house. One time was where my husband was walking towards the house.” 8 RR 70.

The jury was instructed, “[I]f you find from the evidence beyond a reasonable doubt that ... Anthony Jerome Gilbert, did then and there knowingly discharge a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr., you will find the defendant guilty .... ” The jury found Gilbert guilty of deadly conduct, and he was sentenced to serve 75 years in prison. Gilbert appealed.

Analysis

Gilbert argues that there was insufficient evidence presented at trial to convict him of deadly conduct. A person commits deadly conduct if he knowingly discharges a firearm “at or in the direction of’ an individual. Tex. Pen.Code Ann. § 22.05(b)(1). The indictment alleged that Gilbert “did ... knowingly discharge a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr.”

We apply the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine if the evidence is sufficient to support each element of a criminal offense that the State must prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). Under this standard, an appellate court views the evidence “in the fight most favorable to the verdict.” Id. at 899 (quoting Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006)). Viewing the evidence “in the fight most favorable to the verdict” means that the reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole arbiter of the witnesses’ credibility and the weight to be given to their testimony. Id. The evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Kiffe v. State, 361 S.W.3d 104, 107 (Tex.App.-Houston [1st Dist.] 2011, pet. ref'd). With respect to the second circumstance, the Court of Criminal Appeals has explained that the jury’s verdict should be upheld “unless a rational factfinder must have had reasonable doubt as to any essential element.” Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1625, 32 L.Ed.2d 152 (1972) (“That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.”). Accordingly, it is insufficient that a rational jury merely could have harbored a reasonable doubt. “Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt .... ” Johnson, 406 U.S. at 362, 92 S.Ct. at 1625.

No party disputes that Gilbert knowingly discharged a firearm. In fact, four eyewitnesses testified to seeing Gilbert intentionally fire a shotgun multiple times. However, Gilbert contends that there was insufficient evidence at trial for a rational jury to find that he fired the shotgun in the direction of James, the complainant.

The Penal Code supplies no definitions to aid in the application of section 22.05(b)’s prohibition of discharging a firearm “at or in the direction of’ an individual. See, e.g., Tex. Pen.Code Ann. §§ 1.07, 22.05. “Words not specially defined by the Legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance.” Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App.1992). “Accordingly, when determining the sufficiency of evidence to support a jury verdict, reviewing courts must not employ definitions of relevant statutory words which are different or more restrictive than the jurors themselves were legally entitled to use.” Id.

To discharge a firearm “at” a person is to shoot the weapon toward that person’s location. See, e.g., MerRiam-Webster’s Collegiate Dictionary 72 (10th ed. 1993) (defining “at” as “a function word to indicate the goal of an indicated or implied action or motion <aim "the target> <creditors are "him again>”). Similarly, to discharge a firearm “in the direction of’ a person also means to shoot toward that person’s location. See, e.g., id. at 328 (defining “direction” as “the line or course on which something is moving or is aimed to move or along which something is pointing or facing”); see also id. at 1248 (defining “toward” as “in the direction of’). Despite the interpretative canon that “each word, phrase, clause, and sentence should be given effect if reasonably possible,” the parties do not suggest, and we do not discern, any meaningful difference in ordinary usage between discharging a firearm “at” a person and discharging it “in the direction of’ a person.

Daniels testified that he was on the porch when Gilbert fired the final shot that impacted the house. 3 RR 36. Earline specifically identified James as one of the people on the porch at the time Gilbert fired in the direction of the porch. 3 RR 64. Additionally, James’s wife Amy, when asked what happened when Gilbert returned, responded, “[H]e pulled a gun, he fired once I think in the air and then two more times at the house. One time was where my husband was walking towards the house.” 3 RR 70.

Gilbert’s argument focuses on inconsistencies in the testimony and photographic evidence that shotgun pellets struck the front window farthest from the porch where James stood. He invokes “the principles of geometry and physics” to argue that the evidence shows that the porch must have been on his left while he shot to his right, hitting the right side of the house, and accordingly no rational jury could conclude that he discharged the weapon in the direction of James. While the evidence at trial about Gilbert’s location relative to the house was rather sparse, viewing the evidence in the light most favorable to the verdict requires that we assume the jury drew the opposite conclusion — that Gilbert was positioned slightly down the street, aiming his shotgun such that he was aiming toward the house, including its windows and adjacent porch where James was standing.

“When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and therefore defer to that determination.” Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013) (citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793). Whatever inconsistencies it may include, the record does present testimony of two witnesses — Earline Mathis and Amy Daniels — who affirmed that Gilbert fired in the direction of James. In light of this testimony, we cannot say that a reasonable jury must have held reasonable doubt about whether a firearm was discharged in James’s direction. As the finder of fact, the trial jury was entitled to sift through the proof to reach its conclusion from whatever rational combination of record evidence it wished to credit. Accordingly, we must defer to the jury’s determination and find there was sufficient evidence to support the verdict. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781; Temple, 390 S.W.3d at 360.

Since there was eyewitness testimony at trial that showed Gilbert aimed and fired his shotgun at or in the direction of James Charles Daniels Sr., we find that the jury was rationally justified in finding beyond a reasonable doubt that Gilbert knowingly discharged a firearm at or in the direction of James Charles Daniels, Sr. Thus, the evidence was sufficient to support a conviction of deadly conduct.

Conclusion

We conclude that the cumulative effect of the testimony of the four eyewitnesses was sufficient to permit a reasonable jury to conclude that Gilbert discharged the shotgun at or in the direction of James Daniels. We affirm the judgment.

Appendix

n

EVELYN V. KEYES, Justice,

dissenting.

A jury convicted appellant, Anthony Jerome Gilbert, of deadly conduct — discharge of a firearm, and the trial court sentenced him to seventy-five years’ confinement based on a finding that he was an habitual offender. See Tex. Penal Code Ann. § 22.05(b)(1) (Vernon 2011). Because I believe the evidence was insufficient to support appellant’s conviction under Penal Code section 22.05(b)(1), I respectfully dissent. I would reverse the judgment and render judgment of acquittal.

Background

Appellant was indicted under Penal Code section 22.05 as follows:

The Grand Jurors for the County of Washington, State of Texas, duly selected, impaneled, sworn, charged and organized as such at the September Term, A.D. 2009, of the Twenty-first Judicial District Court of said County, upon their oaths present in and to said Court that ANTHONY JEROME GILBERT, defendant herein, on or about the 26th day of September, 2009, and before the presentment of this indictment, in said County and State, did then and there knowingly discharge a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr.

The indictment was enhanced by a prior conviction for the felony offense of aggravated assault, committed March 31, 1998, and the felony offense of aggravated assault of a peace officer, for which appellant was convicted on June 16,1994.

Analysis

The indictment alleged that appellant “knowingly discharge[d] a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr.,” in violation of Penal Code section 22.05(b)(1). Appellant argues that the evidence presented at trial was insufficient to convict him of deadly conduct under subsection 22.05(b)(1). I agree.

Penal Code section 22.05, “Deadly Conduct,” provides, in relevant part:

(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:
(1) one or more individuals; or
(2) a habitation, building, or vehicle and is reckless as to whether the habitation, budding, or vehicle is occupied.
(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

Tex. Penal Code Ann. § 22.05(b)(1).

A person commits the offense of deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals. See id. Deadly conduct requires intent that falls short of harming another person; that is, although no physical harm results, the act is highly dangerous. Walker v. State, 994 S.W.2d 199, 203 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). It is not a result-oriented offense because it does not prescribe a specific result; it requires only that the actor have engaged in the proscribed conduct. Ford v. State, 38 S.W.3d 836, 845 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); see Tex. Penal Code Ann. § 22.05. Because it is not a result-oriented offense, the State can prove the offense merely by proving that the defendant engaged in the conduct without the additional requirement that a specific result was caused with the requisite criminal intent. Ford, 38 S.W.3d at 845.

The appellate courts apply the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to determine whether the evidence is sufficient to support each element of a criminal offense that the State must prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010). Under this standard, an appellate court views the evidence “in the light most favorable to the verdict.” Id. at 899 (quoting Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006)). Viewing the evidence in the light most favorable to the verdict means that the reviewing court is required to defer to the jury’s credibility and weight determinations. Id. The evidence is insufficient under this standard if (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Kiffe v. State, 361 S.W.3d 104, 107 (Tex.App.-Houston [1st Dist.] 2011, pet. refd). The jury’s verdict should be upheld “unless a rational factfinder must have had reasonable doubt as to any essential element.” Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1625, 32 L.Ed.2d 152 (1972) (“That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.”).

When assessing whether evidence is sufficient to support a conviction, an appellate court must determine “whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108 (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007)). Direct and circumstantial evidence are treated equally, and circumstantial evidence is considered to be as probative as direct evidence. Id. The appellate court’s duty is “to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Winfrey v. State, 323 S.W.3d 875, 882 (Tex.Crim.App.2010) (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007)). “[T]he evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged.” Kiffe, 361 S.W.3d at 108.

“When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and therefore defer to that determination.” Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013) (citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793). However, if the evidence, when viewed in the light most favorable to the verdict, merely raises a suspicion of guilt, it is legally insufficient to support a conviction beyond a reasonable doubt. Winfrey, 323 S.W.3d at 882. If circumstantial evidence provides no more than a suspicion of guilt, the jury may not reach a speculative conclusion. Deschenes v. State, 253 S.W.3d 374, 381 (Tex.App.-Amarillo 2008, pet. ref'd) (citing Allen v. State, 249 S.W.3d 680, 704 (Tex.App.-Austin 2008, no pet.)).

Here, the evidence clearly establishes that appellant knowingly discharged a firearm. Four eyewitnesses testified to seeing him intentionally fire a shotgun several times. However, there is no more than a scintilla of evidence that appellant knowingly discharged the shotgun “at or in the direction of an individual, namely, James Charles Daniels, Sr.,” as charged in the indictment. Rather, all of the witnesses testified that appellant shot towards the house — including those witnesses who testified that appellant might have shot at Daniels, among several other individuals. Discharging a firearm towards a habitation is a separate offense that was not charged in the indictment. Compare Tex. Penal Code Ann. § 22.05(b)(1) (discharging firearm towards individual or group of individuals) with id. § 22.05(b)(2) (discharging firearm towards habitation with recklessness as to whether it might be occupied); see also Clinton v. State, 354 S.W.3d 795, 799 (Tex.Crim.App.2011) (holding that we look to “the hypothetically correct jury charge” to identify essential elements of crime and that when statute defines alternative methods of manner and means of committing offense and indictment alleges only one of those methods, “the law” for purposes of hypothetically correct jury charge is single method alleged in indictment). Therefore, if the evidence of the direction in which appellant fired the shotgun is meager, but the only rational inference from the totality of the evidence is that he fired at the house — an offense chargeable under Penal Code section 22.05(b)(2) — the evidence was insufficient as a matter of law to establish appellant’s guilt under the subsection under which he was charged — section 22.05(b)(1).

The evidence was meager as to the direction in which appellant shot the one shot that was not aimed in the air, but it is clear that the much stronger inference from the testimony of all the witnesses is that appellant shot at the house — not at Daniels. Investigating Officer Snowden testified that Amy Daniels, the complainant’s wife, said that appellant originally pointed the gun at her husband, but he pointed the gun away from the direction of Mr. Daniels before firing the second shot. All witnesses stated that appellant fired the first shot in the air. Officer Snowden further testified, “[I]t appeared that there was a gun shot, a shotgun spread of the little BBs or little pellets, on the window to the far right of the house.”

Daniels, the complainant, himself testified:

The trunk was popped and [appellant] ran back to the trunk and got a shotgun, he loaded it, and he shot in the air two times and then the next shot was towards my house by the window.... I was standing right here on the side of the corner, by the porch, and then I had peeked around and he had fired the shot and he hit the window. And we just all fell down then on the front porch.

In short, the complainant testified that he did not even peek around the corner of the porch where he and his family were all gathered until after appellant had fired a single shot at the house. Daniels further testified that the shotgun blast hit “on the second window.” And he testified that appellant aimed “at the house” and shot, and he did not know whether “it was at the house or me.”

Willie Mathis likewise testified that appellant “didn’t fire the gun at the house, he shot it on the side of the house”; that he shot “at the porch”; that “[h]e shot on the side of the house”; that he shot “at the house”; and that Daniels was “in the house” when appellant shot “that one time.”

Earline Mathis testified that appellant “just went up under this trunk and got the gun and started shooting. My husband was on the porch, and I dived in the house on the floor, and the kids was in the bedroom while he shot it.” She further testified that “there was holes up there by the windows and stuff where he could have shot my husband”; that appellant “shot right where the kids were in their rooms,” “towards the bedroom in the house,” and “[a]t the porch, right there by the window, by the bedroom”; that “my husband was sitting right here and he shot right here at this window here where the kids were in the bedroom”; that “he shot at the window that’s closest to the porch”; and that “I just know that he shot at the window right there by the porch.”

Finally, Amy Daniels testified that appellant “got out of the car, he popped the trunk, he pulled a gun, he fired once I think in the air and then two more times at the house. One time was where my husband was walking towards the house.” She further testified,

When [appellant] first pull up [the complainant] went out there to try to talk to [appellant], but [appellant] didn’t have no understanding because he pulled his gun and he fired. [The complainant] was walking back toward the house and [appellant] fired again, and then he fired one last time. He picked up the shells, got in the car and drove off.”

“It was hard to tell” what appellant was shooting at “because it was kind of dark.” But, she testified that appellant shot towards “[t]he house.”

There was literally no clear, direct, positive testimony from any eyewitness or from any investigating officer that appellant was shooting “at” the complainant. While some of the testimony can be construed as stating that he was shooting “in the direction of’ the complainant, all of that same testimony confirms that appellant shot twice in the air and fired only one shot “in the direction of’ and indeed “at” the house that was occupied by Daniels and others. This testimony that appellant discharged a firearm towards a habitation with recklessness as to whether that habitation was occupied — an offense chargeable under Penal Code section 22.05(b)(2) — does not support his conviction for discharging a firearm toward an individual — an offense charged under Penal Code section 22.05(b)(1) and alleged in the indictment. The evidence, then, when viewed in the light most favorable to the verdict, merely raises a suspicion that appellant was shooting at the complainant. Thus, the only rational inference from the testimony regarding the direction in which appellant shot the one shot that was not aimed into the air was that he discharged the shotgun at the house.

This evidence is insufficient to do more than merely raise a suspicion that appellant was guilty of the crime charged; it is, therefore, insufficient to support appellant’s conviction beyond a reasonable doubt. See Winfrey, 323 S.W.3d at 882; Deschenes, 253 S.W.3d at 381. Thus, I would hold that the trier of fact could not rationally have found beyond a reasonable doubt the essential element that appellant shot at or in the direction of the complainant as alleged in the indictment. See Winfrey, 323 S.W.3d at 882; Deschenes, 253 S.W.3d at 381.

Conclusion

I would hold that the evidence was insufficient to support appellant’s conviction for knowingly discharging a firearm at or in the direction of an individual, namely, James Charles Daniels, Sr. Therefore, I would reverse and render judgment of acquittal. 
      
      . E.g., Williams v. State, 270 S.W.3d 140, 146 (Tex.Crim.App.2008); State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997).
     
      
      . See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176-77 (2012) ("Put to a choice ... a court may well prefer ordinaiy meaning to an unusual meaning that will avoid surplusage.... Sometimes drafters do repeat themselves and do include words that add nothing of substance .... ”).
     