A ffirmed and Memorandum Opinion filed Ja n uary 9 , 202 4
.

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 C our t Cause No. 93011

- CR

M E M O R A N D U M O P I N I O N 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 th e ju dgment is not sup ported by legal ly sufficien t evid ence. C onclud ing otherwise , we overrule appellant’s issue and affirm the judgment

. Background The charge against appellant arose from an argument at a “Take 5” auto2

service franchise , which is a drive

- thro ugh auto

- serv ice center wh ere drivers remain in their vehicles . On the day in question, appellant was in his car waiting fo r service. I n line ahead of him was a truck driven by complainant, Petric Nichols. Apparently upset that Nic hols was not m oving his truc k forwa rd , appellant began hon king his hor n. An a ssi stant manager, Peter Garcia, greet ed appellant, who was cussing and yelling at Nichols. Garci a directed Nichols into the first bay and directed appellant in to the third b ay
. Garcia approa ched appellant ’ s car , wh ile appella nt continued yelling at Nic hols. Nichols rolled down the back windo w of his truck

. According to Nichols, a ppellant said things like , “Don’t get out of your c ar. You better not get out of your car. Oh, oh, why d on’t you get o ut of yo ur ca r, you effing B .” Then Nichols bega n walking toward appellant ’ s car , while the two of them kept arguing

. Appellant, still seated in his driver ’ s seat , lifte d up a gun and pointed it at N ichols , who was ten to fift een feet
away
. Nichols stop ped w alk ing b ut continued ye ll ing at appellant. Nichols testified that he “noticed a red dot floating around [his] chest , ” which he assume d

was a laser si gh t com ing from appellant ’ s gun. A ppellant used slang that Nichols construed as a threat to shoot hi m
. Acco rding to Garcia, however, appellant never threat ened 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 a t trial. H e ack nowledged honking his hor n at Nichols and that t hey exchanged profanities. Appellant testified that, a f ter to being directed to separate service bays, and w hile he was speaking w ith Garcia about a vehicle inspection, Nichols began yelling at him

. He s aid Nichol s told him repeatedly, “ [w ]hy don ’ t you get out [sic] the car? ” Appellant hea rd a car door

s lam and saw Nichols walking quickly t o ward him . A ppellant panicked and pulled3

out his gun
. Appellant said he show ed it to Nichols but did not point it at him. He testifie d t hat when Nichols saw the gun he said, “I can shoot you, too, if that’s

w hat you want to do. I’ll go get my gun.” In response, appellant said he pointed his g un at Nichols. Nancy Thompson , who was having her oil changed in the serv ice bay betw een appe lla nt and Nichols , witnessed the commotion and called 9

- 1

- 1

. She

cou ld 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, how e ver, that a ppellant did not ex tend any part of the gun ou tside his car window. Thompson could not say whether appellant was

“ g oing t o fire ” the gun.
A T ake 5 employee in tervened and told appellant that he need ed to leave , and a pp ellant 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 indic tment alle ged that
app ellant “ intenti onally or kn owingly threat e n[ed] Petric Nichols with imminent b odily injury an d did use or exhibit a deadly weapon, namely, a fir ear m. ” Trial was to a j ury
. T he jury charge includ ed instructions on aggr avated ass a ult and attemp ted aggra vat ed assault , a lesser includ ed offense

. 1 The jury acquitted appellant on the charged offense of aggra vated assault but found him guilty of attempted aggravated assault. After hearing punishment evidence, the jury

a ssessed appellant ’ s puni shmen t a t six yea rs confinement in the penit entiary and

1 It is uncl ear from the record whether the State requ ested an instruction on attempted aggrava t ed ass ault or whet her the court included th e instruct ion on its own. Appellant did not request it, as he objected to the instruction on no e v idence g rounds.4

recommended that appellant be granted community superv ision . The court signed a judgment of conviction , which assessed punishment of confinement for six years in the Te xas Department of Criminal Justice

— Instituti ona l Divisio n but suspended th e sentence and placed appellant on community supervision for t en y ears
. Appellant timely appealed to this court and raises one issue: the evidence is insufficient to support the conviction for attempted ag gravated assault.
A nalysis
A. Standard o f Revi ew 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 fact fin der could have found the el ements of the offense beyond a reason able doubt. Sifuentes v. State , 494 S.W.3d 806, 810 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) (citin g Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979)). We do not sit as a thirteenth ju ror 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 def er to the factfinder to fairly resolve conflicts in testimony, weigh th e evidenc e, and draw reas onable inferen ces from basic facts to ultimate facts. I d

. 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

cu mulative e ffe ct of all in criminating fac ts is sufficient to support the convicti on. Id

. B. Su ffici ent Evidence Supports the Conviction for Attempted Aggravated Assault
T he jury found appellant not guilty of aggravated assault but guilty o f attempted aggra vated ass aul t. Attempted aggravated assault is a lesser

- included5

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 commi ts 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. Se e Tex. Penal Code § 15.01(a). A person commits an aggravated assa ult if the p erson commits assault as defined in section 22.01 and the person uses or exhibi ts a deadly weapon during the commission of the assault. Tex. Penal Code Ann. §22.02(a)(2). A per son commits an assault if the person intentionally or knowingly th rea tens another with imminent b odily 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 a ggravated assau lt but failed to effect the commission of that o ffe nse
. The statute establishing the offense of attempt draws an “imaginary line” between mere preparatory conduct, which is usually non

- criminal, from an act wh ich tends to effect the c ommission of the offense, which is always criminal cond uct. Tex. Pe nal Cod e 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. Ad ekeye , 437 S.W.3d at 68

- 69. A person may commit an atte mpt even if he c oul d 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).
Th ere was testimony that appellant was c ursing and yelling at Nichols before they entered the service bays , that they continued ye lling at each other after dr i v ing into the bays, and that appellant shouted a warning at Nichols not to get out of his6

car
. There was evidence that appellant held up a gun and eventual ly pointed it at Nichols, though Tho mpson testified that appellant kept the gun inside his car and did not ext end it

. Garcia, t he Take 5 employee , said that appellant never thr eatened to use the gu n. The jury was free to believe or disbeliev e 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 bey ond a reasonable doubt that appellant specifically intended to commit aggra vated 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

. A ppellant stresses that the prosecutor misstated the law of attempt during closing argument by commenting , “ [a ]nd if you think so mewhere in this continuum of this event ha pp eni ng that the defendant was th inking about committing aggravated assault but hadn ’ t completed it , then you could say he was attempting to do it. ” Appellant says this does not acc urately state Texas attempt law , which requires an act in prepar ation of the of fense rather th an merely thinking about committing an offense. There was no obj ection to th is stat ement, however , and assuming the prosecu tor misstated Texas law, we disregard non

- constitutional,

un objected

- to error unless the de fendant ’ s substantial r igh ts are affected. Tex. R. App. P. 44.2(b). Given ou r holding that t he evidence could have led a rational factfinder to convict appellant of attempted aggravated assa ult based on a correct understanding of Te xas law and the jury charge as a whole, we co ncl ude that any misstatement of law by the prosecu tor did not af fect appellant ’ s su bstantial rights

. To be sure, the evidence in this case is also legally sufficient to have support ed a con viction on the g reater offense of aggravated ass ault even though th e j ury acquitted appellant of that offense

. For example, under Texas law, the display7

of a deadly weap on of and within itself constitutes a threat of the required imminent harm. Sosa v. State , 177 S.W.3d 227, 231 ( T ex. App.

— Hous ton [1st Dist.] 2005, no p et. )

. Appellant ’ s acquittal on the greater offense, however, does
not mean that evi dence is necessarily lacking on the offense of attempted aggravated assault, as appellant suggest s
. As t he Court of Criminal Appe als has stated , An offense is denominated as “lesser

- included” precisely b ecause 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. Wasylin a v. State , 275 S.W.3 d 9 08, 910 (Tex. Crim. Ap p. 2009). In a prosecution for an offense with lesser includ ed offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense. Te x. Code Crim. Proc. Ann. art. 37.08. At lea st one reasonabl e view of the e vidence in today ’ s case may support conviction of the lesser offense as a valid , rational alternative to the charged offense. Additionally, the court o r the St ate in this case may have desired to give the jury the option to b e l eni ent and decide that a conviction on the lesser offense of attempted aggravated ass ault was more appro priate under the circum stances. Texas approves this typ e of “ cautious ” approach in sub mitt ing lesser

- included offe nses to juries. See Grey v. State , 2 98 S.W.3d 644, 651 (Tex. Crim. App. 2009)

. To the extent appellant suggests that the acquittal on aggr avated a ss ault and the conv iction on attempte d aggravated assault are incon sistent, we note that i nconsis tent verdicts in prosecut ions based on the s ame evidence do not require a

revers al on the ground of legal insufficiency. Blacklock v. State , 611 S.W.3d 162, 169 (Tex. App.

— Houston [14th Dist.] 2020, pet. ref’d) ; s ee Thomas v. State , 352 S.W.3d 95, 101 (Tex. App.

— Houston [14th Dist.] 2011, pet ref ’ d ) ( possibl y8

incon sistent verdict s do not necessarily imply a lac k of evidence but may stem from jury ’ s desire to be lenient ). We overrule appellant ’ s sole issue.
Conclusion
W e affirm the trial court ’ s judgment

.

/s/ K evin Jewell Justice

Panel consists of Ch ief Ju stice Chr istopher, and Justices Wise and Jewell

. Do Not Publish

— Tex. R. App . P. 47.2( b).