Donnovon Ray Robinson v. the State of Texas

Affirmed and Memorandum Opinion filed January 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00075-CR

DONNOVON RAY ROBINSON, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 93011-CR

MEMORANDUM OPINION

Donnovan Ray Robinson appeals his conviction for attempted aggravated
assault. Tex. Penal Code Ann. §15.01(a); Tex. Penal Code Ann. § 22.02(a)(2). In
one issue, he contends the judgment is not supported by legally sufficient evidence.
Concluding otherwise, we overrule appellant’s issue and affirm the judgment.

Background

The charge against appellant arose from an argument at a “Take 5” auto
service franchise, which is a drive-through auto-service center where drivers
remain in their vehicles. On the day in question, appellant was in his car waiting
for service. In line ahead of him was a truck driven by complainant, Petric
Nichols. Apparently upset that Nichols was not moving his truck forward,
appellant began honking his horn. An assistant manager, Peter Garcia, greeted
appellant, who was cussing and yelling at Nichols. Garcia directed Nichols into
the first bay and directed appellant into the third bay. Garcia approached
appellant’s car, while appellant continued yelling at Nichols. Nichols rolled down
the back window of his truck. According to Nichols, appellant said things like,
“Don’t get out of your car. You better not get out of your car. Oh, oh, why don’t
you get out of your car, you effing B.” Then Nichols began walking toward
appellant’s car, while the two of them kept arguing. Appellant, still seated in his
driver’s seat, lifted up a gun and pointed it at Nichols, who was ten to fifteen feet
away. Nichols stopped walking but continued yelling at appellant. Nichols
testified that he “noticed a red dot floating around [his] chest,” which he assumed
was a laser sight coming from appellant’s gun. Appellant used slang that Nichols
construed as a threat to shoot him. According to Garcia, however, appellant never
threatened to use the gun. Nichols yelled back, “Well, I guess we know now who
the real bitch is. You have a gun on me?” After these exchanges, Garcia left to
find his supervisor.

Appellant testified at trial. He acknowledged honking his horn at Nichols
and that they exchanged profanities. Appellant testified that, after to being
directed to separate service bays, and while he was speaking with Garcia about a
vehicle inspection, Nichols began yelling at him. He said Nichols told him
repeatedly, “[w]hy don’t you get out [sic] the car?” Appellant heard a car door
slam and saw Nichols walking quickly toward him. Appellant panicked and pulled

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out his gun. Appellant said he showed it to Nichols but did not point it at him. He
testified that when Nichols saw the gun he said, “I can shoot you, too, if that’s
what you want to do. I’ll go get my gun.” In response, appellant said he pointed
his gun at Nichols.

Nancy Thompson, who was having her oil changed in the service bay
between appellant and Nichols, witnessed the commotion and called 9-1-1. She
could not specifically identify either appellant or Nichols at trial, but she agreed
that the “man in the Jeep” (appellant) pointed a gun at the other man who had
exited his truck. Thompson said she could see the barrel of a gun inside
appellant’s car. She was clear, however, that appellant did not extend any part of
the gun outside his car window. Thompson could not say whether appellant was
“going to fire” the gun.

A Take 5 employee intervened and told appellant that he needed to leave,
and appellant drove away.

A Brazoria County grand jury charged appellant with aggravated assault-by-
threat. Tex. Penal Code §§ 22.01(a)(2), 22.02(a)(2). The indictment alleged that
appellant “intentionally or knowingly threaten[ed] Petric Nichols with imminent
bodily injury and did use or exhibit a deadly weapon, namely, a firearm.” Trial
was to a jury. The jury charge included instructions on aggravated assault and
attempted aggravated assault, a lesser included offense.1 The jury acquitted
appellant on the charged offense of aggravated assault but found him guilty of
attempted aggravated assault. After hearing punishment evidence, the jury
assessed appellant’s punishment at six years confinement in the penitentiary and

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It is unclear from the record whether the State requested an instruction on attempted
aggravated assault or whether the court included the instruction on its own. Appellant did not
request it, as he objected to the instruction on no evidence grounds.

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recommended that appellant be granted community supervision. The court signed
a judgment of conviction, which assessed punishment of confinement for six years
in the Texas Department of Criminal Justice—Institutional Division but suspended
the sentence and placed appellant on community supervision for ten years.

Appellant timely appealed to this court and raises one issue: the evidence is
insufficient to support the conviction for attempted aggravated assault.

Analysis

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational factfinder could have
found the elements of the offense beyond a reasonable doubt. Sifuentes v. State,
494 S.W.3d 806, 810 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We do not sit as a thirteenth
juror and may not substitute our judgment for that of the factfinder by reevaluating
the weight and credibility of the evidence. Sifuentes, 494 S.W.3d at 810. Rather,
we defer to the factfinder to fairly resolve conflicts in testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.
This standard applies equally to circumstantial and direct evidence. Id. Each fact
need not point directly and independently to the appellant’s guilt, as long as the
cumulative effect of all incriminating facts is sufficient to support the conviction.
Id.

B. Sufficient Evidence Supports the Conviction for Attempted Aggravated
Assault

The jury found appellant not guilty of aggravated assault but guilty of
attempted aggravated assault. Attempted aggravated assault is a lesser-included
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offense of aggravated assault. Tex. Code Crim. Proc. art. 37.09(4); Dixon v. State,
358 S.W.3d 250, 255 (Tex. App.—Houston [1st Dist.] pet. ref’d). Under the law
of criminal attempt, a person commits an offense if, with specific intent to commit
an offense, he does an act amounting to more than mere preparation that tends but
fails to effect the commission of the offense intended. See Tex. Penal Code
§ 15.01(a). A person commits an aggravated assault if the person commits assault
as defined in section 22.01 and the person uses or exhibits a deadly weapon during
the commission of the assault. Tex. Penal Code Ann. §22.02(a)(2). A person
commits an assault if the person intentionally or knowingly threatens another with
imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2). Appellant contends
there is no evidence that he did an act amounting to more than mere preparation to
commit aggravated assault but failed to effect the commission of that offense.

The statute establishing the offense of attempt draws an “imaginary line”
between mere preparatory conduct, which is usually non-criminal, from an act
which tends to effect the commission of the offense, which is always criminal
conduct. Tex. Penal Code Ann. §15.01(a); Adekeye v. State, 437 S.W.3d 62, 68
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Where the imaginary line falls
must be determined on a case-by-case basis. Adekeye, 437 S.W.3d at 68-69. A
person may commit an attempt even if he could have taken further actions without
actually committing the intended offense. Id. at 69. To constitute an attempt, an
act can, but need not, be the “last proximate act” before the intended crime is
effected. McCravy v. State, 642 S.W.2d 450, 460 (Tex. Crim. App. 1980); Cody v.
State, 605 S.W.2d 271, 273 (Tex. Crim. App. 1980).

There was testimony that appellant was cursing and yelling at Nichols before
they entered the service bays, that they continued yelling at each other after driving
into the bays, and that appellant shouted a warning at Nichols not to get out of his

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car. There was evidence that appellant held up a gun and eventually pointed it at
Nichols, though Thompson testified that appellant kept the gun inside his car and
did not extend it. Garcia, the Take 5 employee, said that appellant never
threatened to use the gun. The jury was free to believe or disbelieve any or all of
the testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
Viewing all the evidence in the light most favorable to the verdict, a rational jury
could have found beyond a reasonable doubt that appellant specifically intended to
commit aggravated assault, and that he performed an act that was more than mere
preparation but failed to effect the commission of aggravated assault. We hold the
evidence is legally sufficient.

Appellant stresses that the prosecutor misstated the law of attempt during
closing argument by commenting, “[a]nd if you think somewhere in this
continuum of this event happening that the defendant was thinking about
committing aggravated assault but hadn’t completed it, then you could say he was
attempting to do it.” Appellant says this does not accurately state Texas attempt
law, which requires an act in preparation of the offense rather than merely thinking
about committing an offense. There was no objection to this statement, however,
and assuming the prosecutor misstated Texas law, we disregard non-constitutional,
unobjected-to error unless the defendant’s substantial rights are affected. Tex. R.
App. P. 44.2(b). Given our holding that the evidence could have led a rational
factfinder to convict appellant of attempted aggravated assault based on a correct
understanding of Texas law and the jury charge as a whole, we conclude that any
misstatement of law by the prosecutor did not affect appellant’s substantial rights.

To be sure, the evidence in this case is also legally sufficient to have
supported a conviction on the greater offense of aggravated assault even though the
jury acquitted appellant of that offense. For example, under Texas law, the display

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of a deadly weapon of and within itself constitutes a threat of the required
imminent harm. Sosa v. State, 177 S.W.3d 227, 231 (Tex. App.—Houston [1st
Dist.] 2005, no pet.). Appellant’s acquittal on the greater offense, however, does
not mean that evidence is necessarily lacking on the offense of attempted
aggravated assault, as appellant suggests. As the Court of Criminal Appeals has
stated,

An offense is denominated as “lesser-included” precisely because
proof of the lesser offense is “included” in the offense described in the
charging instrument. If the State proves the charged offense, it
necessarily proves all lesser-included offenses.

Wasylina v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009). In a prosecution
for an offense with lesser included offenses, the jury may find the defendant not
guilty of the greater offense, but guilty of any lesser included offense. Tex. Code
Crim. Proc. Ann. art. 37.08. At least one reasonable view of the evidence in
today’s case may support conviction of the lesser offense as a valid, rational
alternative to the charged offense.

Additionally, the court or the State in this case may have desired to give the
jury the option to be lenient and decide that a conviction on the lesser offense of
attempted aggravated assault was more appropriate under the circumstances.
Texas approves this type of “cautious” approach in submitting lesser-included
offenses to juries. See Grey v. State, 298 S.W.3d 644, 651 (Tex. Crim. App. 2009).

To the extent appellant suggests that the acquittal on aggravated assault and
the conviction on attempted aggravated assault are inconsistent, we note that
inconsistent verdicts in prosecutions based on the same evidence do not require a
reversal on the ground of legal insufficiency. Blacklock v. State, 611 S.W.3d 162,
169 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); see Thomas v. State, 352
S.W.3d 95, 101 (Tex. App.—Houston [14th Dist.] 2011, pet ref’d) (possibly

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inconsistent verdicts do not necessarily imply a lack of evidence but may stem
from jury’s desire to be lenient).

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Chief Justice Christopher, and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).

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