In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-21-00164-CR

___________________________

On Appeal from the 415th District Court

Parker County, Texas

Trial Court No. CR19-1139

Before Sudderth, C.J.; Kerr and Wallach, JJ.

Opinion by Justice Wallach

JAY RILEY DOMINGUEZ, Appellant

V. 

THE STATE OF TEXAS
2

OPINION

A jury convicted Appellant Jay Riley Dominguez of aggravated assault of a 

police officer and assessed punishment at thirty years’ confinement, and the trial court 

sentenced him accordingly. In two issues, Appellant contends that insufficient 

evidence supports the jury’s finding that he used or exhibited a deadly weapon during 

the assault and that the trial court erred by refusing to permit one of his witnesses to 

testify remotely via video conferencing software. Because the evidence supports the 

jury’s verdict and because Appellant did not show harm from the exclusion of the 

witness’s testimony, we will affirm.

Background

We include here only a brief summary of the background facts because we 

more fully examine the trial evidence in addressing Appellant’s evidentiary sufficiency 

challenge. Weatherford police officers Christopher Bumpas and Preston Harper went 

to the home of Appellant’s ex-girlfriend in response to a 911 call requesting a welfare 

check because of Appellant’s presence there;

1 the officers were aware that Appellant 

had an outstanding warrant for his arrest. When the officers approached Appellant, he 

tried to flee on foot, but Bumpas quickly tackled him, with Appellant landing on his

stomach with his arms underneath him. While the two officers were attempting to 

1

The ex-girlfriend had obtained an ex parte protective order against Appellant, 

and when he showed up at her home, her children called their grandmother, who 

called 911. The State conceded in the trial court that Appellant did not know about 

the order.
3

pull his arms out from under him to handcuff him, Appellant flailed about, 

announced that he had a gun, and put his hand on the butt of the gun. Bumpas 

managed to get the gun from Appellant’s hands, but in the altercation, Bumpas’s nose 

was broken, and his knee was sprained.

Appellant was charged by indictment with aggravated assault. The indictment 

alleged that Appellant caused bodily injury to Bumpas, a police officer discharging his 

official duty, and that Appellant used or exhibited a firearm during the commission of 

the offense. See Tex. Penal Code Ann. §§ 22.01, 22.02(a)(2), (b)(2). The jury found 

him guilty, and Appellant now appeals.2

Discussion

I. Legal sufficiency

In Appellant’s first issue, he argues that the evidence was legally insufficient to 

establish that he used or exhibited a deadly weapon. To prove the offense of 

aggravated assault of a public servant as alleged in the indictment, the State had to

prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to 

Bumpas while Bumpas was lawfully discharging an official duty and that Appellant 

used or exhibited a deadly weapon during the commission of the assault. See id.

§§ 22.01(a)(1), 22.02(a), (b). Appellant does not dispute that he possessed a firearm 

2

Appellant was also convicted of resisting arrest or search with a deadly 

weapon. See Tex. Penal Code Ann. § 38.03. For that offense, he was sentenced to ten 

years’ confinement, running concurrently with the sentence for this offense. Appellant 

does not challenge that judgment on appeal.
4

during the assault or that the firearm qualifies as a deadly weapon, see id. § 1.07(a)(17),

but he argues that the evidence does not show that he used or exhibited it.

A. Standard of review

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017). The factfinder alone judges the evidence’s weight and credibility. 

See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex.

Crim. App. 2021). We may not re-evaluate the evidence’s weight and credibility and

substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we 

determine whether the necessary inferences are reasonable based on the evidence’s 

cumulative force when viewed in the light most favorable to the verdict. Braughton v. 

State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 

232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not 

engage in a ‘divide and conquer’ strategy but must consider the cumulative force of all 

the evidence.”). We must presume that the factfinder resolved any conflicting 

inferences in favor of the verdict, and we must defer to that resolution. Braughton, 

569 S.W.3d at 608.
5 

B. Proving a deadly weapon’s use or exhibition

The Texas Penal Code does not define “use” or “exhibit,” but the Court of 

Criminal Appeals has applied dictionary definitions to define the terms, holding that

“use” of a deadly weapon requires that the deadly weapon to be “utilized, employed, 

or applied in order to achieve its intended result,” but that “exhibit” requires only 

“that a deadly weapon be consciously shown, displayed, or presented to be viewed” 

during the offense. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)

(quoting former Tex. Code Crim. Proc. Ann. Art. 42.12, § 3g(a)(2)). MerriamWebster’s dictionary further defines “show” to mean, among other things, “to cause 

or permit to be seen” and “to reveal by one’s condition, nature, or behavior,” and it 

defines display to mean “to put or spread before the view” or “to make evident.” See

Show, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/show; Display, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/display; see also Searcy v. State, 

115 S.W.3d 628, 631 (Tex. App.—Waco 2003, no pet.) (relying on Merriam–

Webster’s Collegiate Dictionary to define “show” and “display”).

Based on these definitions, the Court of Criminal Appeals has construed “used 

or exhibited” broadly to include any employment of a deadly weapon if it facilitates 

the associated felony or its use, in itself, fulfills an element of the offense on trial. 

Whatley v. State, 946 S.W.2d 73, 76 (Tex. Crim. App. 1997) (citing Tyra v.

State, 897 S.W.2d 796, 797 (Tex. Crim. App. 1995), and Patterson, 769 S.W.2d at 941). 
6

Mere possession is generally not enough; “[t]he deadly weapon must, in some manner, 

help facilitate the commission of the felony.” Plummer v. State, 410 S.W.3d 855, 

865 (Tex. Crim. App. 2013). However, “[i]n the context of violent offenses, the term 

‘exhibit’ contains an implicit element of facilitation” because if one exhibits a deadly 

weapon “without overtly using it to harm or threaten while committing a felony, the

deadly weapon still provides intimidation value that assists the commission of the 

felony.” Id. at 862.

C. Analysis

Appellant argues that the gun in his possession “did nothing to facilitate the 

commission of the assault.” He contends that there was no evidence that he reached 

for his gun, that the evidence was that his hands were pinned to the ground, that his 

hand could have been pressed on the gun by Bumpas’s tackle “and the struggle that 

ensued,” and that “[t]he speculation that he wanted to ‘use’ or ‘exhibit’ the gun . . . is 

not supported by the evidence.” We disagree with his characterization of the evidence.

When Bumpas and Harper arrived at Appellant’s ex-girlfriend house, they saw 

Appellant and his ex-girlfriend outside. The officers knew Appellant had an 

outstanding arrest warrant, which they mistakenly believed to be a misdemeanor 

warrant. They later found out that it was actually a felony warrant.

The officers approached Appellant, both wearing their uniforms. Bumpas’s 

bodycam recorded him saying to Appellant, “Hey, Jay, come here. Are you Jay? Come 

here.” Appellant responded “No. . . . I’m not—what—,” and then attempted to flee.
7

Bumpas almost immediately tackled Appellant in a bear hug, knocking off his

bodycam in the process. Appellant landed on his stomach, with both his and 

Bumpas’s hands under Appellant’s body.

Appellant was much larger than Bumpas—Bumpas testified that he is 5′6′′ tall 

and that Appellant is “over six feet” tall—and Bumpas could not control Appellant’s 

arms or stop Appellant from moving around. Appellant was “kicking with his feet on 

the ground trying to get back up” and “flailing a lot” with his elbows and head, and 

Appellant managed to move his body enough so that “his body turned back towards 

the east but [Bumpas] was still facing towards the west.” Bumpas still had his hands 

under Appellant’s body and was trying to pull Appellant’s left arm out from 

underneath him so the officers could handcuff him. Harper was able to pull 

Appellant’s right arm out from underneath his body, but he did so against Appellant’s 

resistance. He had to strike Appellant in the back four or five times to dislodge the 

arm.

Bumpas testified that “[a]t first [he] was just yelling [to Appellant], give me your 

hand, give me your hand” while trying to keep Appellant’s flailing arms down. That 

changed when Appellant told the officers that he had a gun. Bumpas’s bodycam had 

fallen close enough to record Appellant say, “I got a gun, I got a gun, I got a gun. I 

don’t wanna fucking do this.” Although before then Bumpas had been attempting to 

get Appellant’s left arm out from under Appellant’s body, he testified that at that 

point he “ke[pt] his body weight on [Appellant] as much as [he could] just to make 
8

sure [Appellant’s] arms didn’t come out from under him.” [Emphasis added.] With his 

arm still under Appellant, Bumpas felt Appellant’s hands on the butt of a pistol, 

holding it “in a way he could shoot” it. Bumpas told Harper, “He does have a gun—

he’s got a gun. Shoot him in the fucking head!” Bumpas explained that he told Harper 

to shoot because he “knew that if [Appellant] was able to get his arm out from under 

him with that gun [they] were both in trouble[;] there’s no telling what would 

happen.” Bumpas said, “I remember thinking that one of us was going to get shot if 

the gun comes out of his waistband.”

Harper responded, “Dude, are you sure?” As soon as Harper said that, 

however, Appellant’s arm “came out a little bit,” and Bumpas was able to twist the 

gun away from Appellant’s hand and fling it a few feet away. Bumpas told Harper, “I 

got it, I got it, I got it.” He then managed to take control of Appellant’s arm enough 

that the officers were able apply handcuffs, although Appellant continued to fight 

against them. Bumpas testified that the firearm that he had pulled from Appellant’s 

hand was a loaded Ruger LCP semiautomatic pistol.

While the officers handcuffed Appellant, he told them to shoot him, that they 

were “gonna have to [shoot him] in the end,” and that he “didn’t do anything violent 

until this.” Appellant also informed the officers that he had another firearm—which 

Bumpas identified at trial as a Taurus revolver—in his boot. While Bumpas and 

Harper waited for other police officers to arrive, Appellant said that he had grabbed 

the Ruger because he was trying to “unarm” himself. When Bumpas said, “I had to 
9

wrench it out of your hand, bro,” Appellant replied that he had not aimed the gun at 

anyone.

Bumpas told the jury that during the altercation, he sprained his knee and his 

nose was broken and that he believed that his nose had been broken by Appellant’s 

elbow or head. Bumpas denied that the injuries could have happened when he tackled 

Appellant.

In summary, the jury heard evidence from which it could find that the pistol 

was related to and facilitated the assault. Rather than submit to having his arm 

brought out from underneath him and put in handcuffs, Appellant announced that he 

had a gun, flailed against Bumpas violently enough to injure Bumpas’s nose and knee,

and grabbed the gun. The jury also heard evidence that Bumpas, with his arm under 

Appellant, felt the gun and feared that Appellant would shoot him or Harper. Bumpas

further testified that when he felt Appellant’s hand on the gun, rather than continuing 

to try to get Appellant’s arm out to handcuff him (and thereby end the assault against 

him), Bumpas had to focus on getting the gun away from Appellant and use his body 

weight to keep Appellant’s arm underneath him. The jury thus had evidence that 

Appellant’s announcing that he had a gun and then grabbing it prolonged the period 

in which Appellant was able to flail his body against Bumpas because Bumpas had to 

focus on controlling the gun rather than handcuffing Appellant. Bumpas also testified 

that the assault occurred during that altercation. From this evidence, a rational fact 

finder could have found beyond a reasonable doubt that Appellant used or exhibited 
10

the gun during the assault. See Whatley, 946 S.W.2d at 76; Jeffery v. State, No. 08-01-

00060-CR, 2002 WL 1397141, at *4 (Tex. App.—El Paso June 27, 2002, no pet.) (not 

designated for publication) (holding evidence sufficient to support finding that gun 

was exhibited during assault, despite complainant’s not seeing gun in the dark room, 

when complainant testified that she felt the gun and she and defendant struggled over 

it); but cf. Plummer, 410 S.W.3d at 862, 865 (holding handgun was not used or exhibited 

during possession-of-body-armor offense because the gun did not play any role in 

enabling, continuing, or enhancing the offense).

Appellant argues that the jury could only speculate that he intentionally put his 

hand on his gun, and that it is just as likely that his hand fell on the gun when he was 

tackled. However, the jury heard evidence that Harper had to strike Appellant 

multiple times to get control of Appellant’s right arm; that Appellant was flailing so 

hard against Bumpas that he broke Bumpas’s nose; and that while committing that 

assault, Appellant not only announced that he had a gun but followed that 

announcement by saying that he “d[id]n’t wanna fucking do this.”3 The inference that 

Appellant placed his hand on the gun was not unreasonable given the evidence.

3

Additionally, in the bodycam footage played for the jury, one of the officers 

stated that Appellant had pulled a gun on them, to which Appellant replied that had 

been trying to “unarm [him]self,” which the jury could interpret as an 

acknowledgment by Appellant that he had put his hand on the weapon.
11

Appellant argues that the case is like Griffith v. State, an unpublished opinion4 in 

which the Court of Criminal Appeals held that the evidence was insufficient to 

support the defendant’s conviction for continuous sexual assault of child. See No. PD0639-18, 2019 WL 1486926, at *1 (Tex. Crim. App. Apr. 3, 2019) (not designated for

publication). That case is readily distinguishable because it did not involve the use or 

exhibition of a deadly weapon. Id. Further, in that case the State relied in part on the 

complainant’s mother’s testimony to prove the alleged continuous sexual assault, and 

the court held that for the State’s characterization of the mother’s testimony to be 

true, the jury would have had to believe that what the mother said was not what she 

actually meant. Id. at *4. The court further noted that some of the evidence that could 

have supported the State’s theory was not presented to the jury, and “[a] jury cannot 

make inferences based on evidence that they never heard.” Id. at *5. Here, the jury 

could have drawn reasonable, permissive inferences based on the evidence actually 

presented, taking Bumpas’s and Harper’s testimony—supplemented with the 

bodycam footage—to mean what they said. We overrule Appellant’s first issue.

II. Zoom witness

In Appellant’s second issue, he contends that the trial court erred by not 

allowing one of Appellant’s witnesses at punishment to appear by Zoom, as required 

by the governor’s Twenty-Sixth Emergency Order under Texas Government Code 

4

See Tex. R. App. P. 77.3 (providing that unpublished opinions from Court of 

Criminal Appeals have no precedential value and must not be cited as authority).
12

Section 22.0035. See Tex. Gov’t Code Ann. § 22.0035(b); Twenty-Sixth Emergency Order

Regarding COVID-19 State of Disaster, 609 S.W.3d 135 (Tex. 2020). At punishment, 

Appellant’s attorney informed the trial court, “We did want to put one other witness 

thing on the record, Your Honor. [Appellant’s] ex-wife[ ] is not here, but she would 

have been willing to testify via Zoom. The State is opposed to that. Are you opposed 

to that?” The court answered, “Yes,” and Appellant’s attorney then stated, “Okay. 

We’d like to put it on the record that we asked.” The trial court confirmed that the

request had been denied, and the State and defense both rested.

Appellant’s attorney did not make an offer of proof to show the substance of 

the witness’s testimony. See Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App.

2009) (stating that an offer of proof is necessary to show error or harm from the 

exclusion of evidence unless the substance is apparent from the context). We thus 

have no record of what Appellant’s ex-wife would have said in her testimony, and the 

substance of her testimony is not apparent from the context. Accordingly, even if we 

concluded that not allowing the witness to appear by Zoom was erroneous, we could 

not determine whether that error was harmful. See Tex. R. App. P. 44.2 (stating that 

non-constitutional error must be disregarded if it does not affect a party’s substantial 

rights); Holmes, 323 S.W.3d at 168; cf. Ferguson v. State, 97 S.W.3d 293, 297 (Tex. 

App.—Houston [14th Dist.] 2003, pet. ref’d) (stating appellant failed to show harm 

from trial court’s limiting of cross-examination when counsel made no offer of proof 

detailing the questions he wanted to ask).
13

Appellant asserts that no bill of exceptions was made or requested “presumably 

because the bill would have had to have been made over Zoom, which the State 

objected to, and the trial court refused to allow.” However, questioning the witness 

was not the only option for making an offer of proof. Appellant’s attorney could have 

made a concise statement that included “a reasonably specific summary of the 

evidence offered” and stated the relevance of the evidence. See Holmes, 323 S.W.3d at

168 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)). Because 

Appellant did not show harm, we overrule his second issue. See Tex. R. App. P. 44.2; 

Holmes, 323 S.W.3d at 168; cf. Tex. R. Evid. 103(a)(2); Hawk v. State, No. 11-20-00140-

CR, 2022 WL 1179366, at *5 (Tex. App.—Eastland Apr. 21, 2022, no pet.) (mem. op., 

not designated for publication) (holding appellant failed to preserve complaint that

witness had been improperly excluded for violating the Rule).

Conclusion

Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

/s/ Mike Wallach

Mike Wallach

Justice

Publish

Delivered: September 15, 2022