Opinion issued January 23, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00350-CR

———————————

ANTHONY JEROME GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Case No. 15671

DISSENTING OPINION

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
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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, 1993, 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 
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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, building, 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 resultoriented 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 
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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 (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. ref’d). 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 (1972)
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(“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. 
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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 
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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.
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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.”
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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 
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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, 254 S.W.3d at 381.
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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.

Evelyn V. Keyes

Justice 

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).