## In the Court of Appeals Second Appellate Distric t of Texas at Fort Wor th

___________________________ No. 02

- 21

- 00164

- CR

_

__________________________

On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR19

- 1139

Bef ore Sudderth, C.J.; Kerr and Wallach, JJ. Opinion by Justic e Wallach 

### J AY 

### R ILEY 

### D OMINGUEZ 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 OPINION A j ury convicted Appellant Jay Riley Do minguez of aggravated assault of a police officer an d assessed punishment at thirty years ’ confinement , and the trial court sentenced him a ccordingly. In two issues, Appellant co n t ends that insufficient evi d e nce sup ports t he 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 h is witnesses t o testify remotely vi a video conferencing software

. Becaus e the evidence support s the ju r y ’ s verdict and because A ppellant did not show harm from the exclusion of the witnes s ’ s testimony , w e will affirm

. Bac kground W e include h ere only a brief su mmar y of the background facts b ecause we

m ore fully examine the tria l evidence in addre ssing Appellant ’ s e videntiary sufficiency challenge

. Weatherford police officers Christopher Bumpas and Pres ton Harper went
t o the home of Ap pellant ’ s ex - girlfriend in response t o a 911 call request ing a welfare check bec ause of Appellan t ’ s presence there ; 1 the officers were aware that Appell ant had an outstanding warran t for h is arrest

. When th e officers appr oached Appellant , he tried to flee on foot, but Bumpas quic kly tackled him , with Appellant l anding on his stomach with his arms unde rneath him . Whi l e the two officers were attempting to

1 The ex

- gir lfriend had obtained a n ex pa r t e p rotective order against Appellant, and when he showed up at he r home, her chi ldren called their grandmother , w ho ca lle d 91 1. T he State conceded in the tr ial court that Appellant did not know about the order.3 pull his arms out from under him to handcuff him, Appellant f lailed ab out , announced that h e had a gun, and put his hand on th e b utt of the gun. Bumpas managed to get the gun from Appel lant ’ s hands, but in the alte r cation , Bumpas ’ s nose

was broken, and his knee was sprained. Appellant was ch arged by indictment with aggravat e d assault

. The indictment alleged that Appellant cau sed bo dily injury to Bumpas , a police of ficer discharging his official duty, and that Appel l ant used or exhibited a firearm during th e commission of the offense. See Tex. P enal Code Ann. § § 22.01 , 22.02( a)(2), (b)(2). The jury found him guilty, and Ap pel lant now appeals. 2 Discussion I. Legal su fficiency In Appellant ’ s first issue, he argues that the evidence was legally insuffi cient to establish that he used or ex hibited a de adly weapon

. To prov e the offense of aggravat e d assault of a public serv ant as alleged in the indictment, the State had to prove that Appellant intentionally, knowingly, or recklessly cause d bodily injury to Bumpas while Bumpas was lawfully discharging an official duty an d th at Appellant used or exhi b ited a deadly weapon during th e c ommission of the assault. See id

. § § 22.01( a)(1), 22.02( a) , (b)

. Appellant does not dispute that he p ossessed a firearm

2 Appellant wa s also convicted of r esist ing a r rest or search with a deadly weapon. See Tex. Penal Code Ann. § 38.03. For th at offe nse , he was sent enced to ten years ’ confinement, running concurrently with the sentence for this offense

. Appellant does not challenge that judgme nt on appeal.4 during the assault or that the fire arm qualifies as a deadly weapon , see id

. § 1.07 (a) (17) , but he argues that the e vidence does not sho w that he used or exhibited it

. A. Standar d of r evie w In our evidentiary

- sufficie n cy review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found th e crime ’ s essential elemen ts beyond a reasonable doubt. Jackson v. Virgin ia , 443 U. S. 307, 319, 99 S. Ct. 2781, 2 789 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Te x. Crim. App. 2017). The factfinder alone judges the evidenc e ’ s weight and credibility. See Tex. Co de Crim. Proc. An n. 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 wh ether the necessa ry inferences are reasonable based on the evide nce ’ s

cumu lative force when viewed in t h e light most favorable to the verdict. Braughton v. S tate , 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State , 514 S.W.3d 227, 232 (Tex. Cri m. App. 2017) ( “ T he court conducting a sufficiency review must n ot engage in a ‘ divide and conquer ’ str a tegy but must consider the cumulative force of all th e evidence. ” ). We must presume that the factfinder re solved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton , 56 9 S.W.3d a t 608

.5 B. Proving a deadly we a pon ’ s use or exhibition The Texas Penal Code does not defi ne “ use ” or “ exhibit, ” but the Court of Criminal Appeal s has applied dict ionary definitions to define the terms , h olding that

“ use ” of a deadly weapo n r equi re s that the deadly weapon to be “ utilized, employed, or applied in order to achieve its intended result ,” but that “ exhibit ” requires only

“ that a d eadly weapon be consciously shown, disp layed, or presented to be viewed ” during the offense. Patterson v. St a te , 769 S.W.2d 938, 941 (Tex

. Crim. App. 1989) ( quoting former Tex. Code Crim. Pr oc. Ann. A rt. 42.12, § 3g(a)(2) )

. MerriamWebster ’ s dictionary further defines “ show ” to mean , among other things , “ to ca use or permit to be seen ” and “ to reveal by one ’ s cond ition, nature, or behavior ,” and it defines disp l ay to mean “ to put or spread before the view ” or “ to make evident .” See Show, Merriam- Webster Online Dictionar y, https :// www.merriamwebster.com/dictionary / show ; D isp lay, Merriam

- Webster Online Dictionary, https:// www.merr iam

- webster.com/dictionary/ di splay ; see also Searcy v. State , 115 S.W.3d 628, 631 (Tex. App.

— Waco 2003, no pet.) (relyi ng on Merriam– W ebste r’s Coll egi ate Dictionary to define “ show ” and “ display ” ). Based on these definitions, t he Court of Criminal Appeals has construed “ use d or exh ibited ” broadly to inclu de an y employment of a deadly weapon if it facilitates the associated felony o r its use, in itself, fulfills an element of the offe nse on tria l. Wh atley 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 M e r e possession is generally not enoug h ; “ [t] he de adly weapon must, in some manner, help facil ita te the commission of the felony. ” Plummer v. State , 410 S.W.3d 855, 8 65 (Tex. Crim. App. 2013)

. Ho wever, “ [i] n the context of violen t offenses, the term

‘ exhibit ’ contains an implicit element of fa cilitation ” because if one exhibits a deadly weapon “ wit hou t overtly using it to harm or threaten while committing a felony, the deadly weapon still provides intimidation value that assists t he commission of the felony. ” Id. at 862

. C . A nalysis Appellant ar gues t hat the gun in his possession “ did nothing to f aci litate the commission of the assault

. ” He contends that the re was no evidence that he reached for his gun , that the evi dence was that his hands were pinned to the ground , that his hand could have been pressed o n the gun by Bumpas ’ s tackle “ and the struggle that ensued , ” and that “ [t]he specu lat ion th at he wanted t o ‘ use ’ or ‘ exhibit ’ the gun . . . is not supported by the e vidence

. ” We disagree with his characterizati on of the evidence. When Bumpas and Har per arr ived at Ap pel lant ’ s ex - girlf riend house , they saw Appella nt and his ex

- gi rlfrie nd outside. The officers knew Appellant had an outstandi ng arrest warrant , which they mistakenly believed to be a misdeme anor
warrant . T hey later found out that it wa s a ctually a felon y warrant. The officers approached Ap pellant, both wearing their uniforms. Bumpas ’ s b odycam record ed him saying to Appellant, “ Hey, Jay, come here. Ar e you Jay? Come here. ” Appellant responded “ No
. . . . I ’ m not

— what

— , ” and then attempted to flee

.7 B umpas almost immediately ta ckled Appellant in a bear hug , kno cking off his bodycam in the process. Appe l lant landed on his stom ach , with bo th his and Bumpas ’ s hands under Appellant ’ s body

. Appel lant was much larger t han Bumpas

— Bumpas testified that h e is 5 ′ 6 ′′ tall and that Appellant is “ over six feet ” tall

— and Bu mpas could not control Appell a nt ’ s
arms or stop Appella nt from moving around

. Appellant was “ ki cki ng with his feet on the ground trying to get back up ” and “ f lailing a lot ” with his elbows and head , and Appellant managed to move his body en ough so that “ his body turned back towards the east but [ Bumpas] was still facing towards the we st . ” Bu mpas still had his hands under Appellant ’ s body and wa s trying to pull Appellant ’ s left arm out from underneat h him so the officers could hand cuff him

. Harpe r w a s able to pull Appellant ’ s right arm out from underneath his body , but he did so aga inst Appellant ’ s resistance

. He had to stri ke Appellant in the back four or five times to dislodge the

arm. Bumpas t estif i ed that “ [a] t first [he ] was just yelling [to App ellant] , give m e your hand , give me your hand ” while try ing t o keep App ellant ’ s flailing arms down. Th at changed when Appellant told the officers that he had a gun. Bumpas ’ s bodycam had fall en close enough t o record A pp e llant 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 Ap pellant ’ s body , he testified that at that po i nt he “ ke [ pt ] his bod y we ight on [Appellant] as much as [he could] just to make8 sure [ App ell ant ’ s ] arms didn ’ t come out f r o m under him. ” [E mphasis added.] W i t h his

arm still under Appellant, Bumpas felt Appellant ’ s hands on the butt of a pistol , holding it “ in a wa y he could s h o ot ” it. Bumpas told Harper, “ He does have a g un
— he ’ s got a gun . Shoot him in the fucking head ! ” Bumpas explained that he told Har per to shoot because he “ knew that if [ Appellant ] was a b le to get his ar m ou t from under him with that gun [they] were both i n troub l e [ ;] there ’ s no telling what would happen

. ” Bumpas said, “ I re member thinking t hat one of u s was going to get shot if the gun comes out of his w a istband. ” Harper responded, “ Dude, ar e you sure? ” As soon as Harper said th at , howeve r , App ellant ’ s arm “ came out a little bit, ” and Bumpas was able to twist the gun away from A ppellant ’ s hand and fling it a few feet away. Bumpas told Harp er, “ I got it , I got it, I go t i t . ” H e then managed to take control of Appell ant ’ s ar m enough that the officers w ere abl e apply handcuffs , although Appellant continued t o fight against them

. Bumpas testified that the firearm t hat he had pulled from Appell a nt ’ s hand was a loaded Ruger LCP semiautomatic pistol. Whil e the officers handcuff ed Appel lant , he told the m to shoot hi m , that they

were “ gon na have to [shoot him ] in the end , ” and that he “ didn ’ t do anything v iolent until this. ” Appellant also informed the officers that he ha d another firearm

— which Bumpas identifie d at trial as a Taurus revolver

— in hi s boot. While Bumpas a nd Harper waited for other police officers to arri ve, Appellant said that he h a d g rabbed the Ruger because he was trying to “ unarm ” himsel f. When B umpas s aid, “ I had to9 wrench it out of your han d, bro, ” Appel lant replied that he had not aimed the gun at

a n yone. Bump as told the jury that during t he altercation, he sprained his knee and his nose was b roke n a nd that he bel ieved that his nose had been broken by Appellant ’ s elbow or head

. Bumpas d eni ed that the injuries could have hap pened when he tackled Appel l ant . In summary, the jur y heard evidence from which it could find that t he pistol was related to and facilitated the assault

. R ather than submit to having his arm brought out from under neath him and put in handcuffs , Appellant annou nc ed that he had a gun , flailed aga inst Bumpas v i olently enough to injure Bumpas ’ s no se and knee ,
a nd grabbed th e gun. The jury also heard evidence tha t Bumpas , with his arm under Ap pe llant, felt the gun and feared that Appellant w ould shoot him or Harp er. Bumpas further test ifi e d that when he f elt Appel l ant ’ s hand on the gun, r ather than continuing
to try to get Appellant ’ s arm out to handcu ff him ( and thereby end the ass ault against him ) , Bumpas had to focus on getting the gun away from Appellant and use his body weight to k eep Appellant ’ s arm und erneat h h i m . The jury thus had evidence that Appellan t ’ s announcing that he had a gun and then grabbing it prolonged the period in which Appellan t was able to flail his body against Bumpas because Bumpas had to focus on controlling t he g un rather than h andcuffing Appellant. Bumpas also testified that the ass a ul t occurred during that altercation

. From this e vidence, a rational fact f inder could have found beyond a reas onable doubt that Appellant used or exhibi t ed10 the gun during the ass aul t . See Whatley , 9 46 S.W.2d at 76; Jeffery v. State , No. 08

- 01

- 00060

- CR, 2 0 02 WL 1397141, at *4 (Tex. App.

— El Paso June 27, 2002, no pet.) ( not designated for p ublication) ( holding evidence sufficient to support finding that gun

w as exhibited during assault , despi te co m plainant’s not seeing gun in the dark room, when c o mp lainant testified th at she felt the gun and she and defendant struggled over it) ; but cf. Plummer , 410 S.W.3d at 862 , 865 (holding handgun wa s not used or exhibited during possession

- of

- body

- armor offense because the gun did not play any role in enablin g, continuing, or enhancin g the offense)

. Appellant argues that the jury could only speculate th at he intentionally put his hand on his gun , and that it is jus t as likely that his hand fel l on t he gun when he was
t ackled. However, the ju ry heard evidence t hat Harper had to strike Appel lant 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 whil e committ i ng tha t assault , Appe llant not only announced that he had a gu n b ut followed that
announcement by saying that he “ d[id]n ’ t wanna fucking do this

. ” 3 The inference that App ellant placed his hand on the gun was not unreasonable given the evide nce.

3 Addit ionally, 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 acknowle dgment by Appellant that he had put his hand on the weapon.11 Appellant a r gues that the case is like Griffith v. State , an unpubli shed opinion 4 in which the C ourt of C riminal A pp eals h eld that the evide nce was insufficient to support t he defendant ’ s conviction for c ontinuous sexual assault of child

. See No. PD

0639

- 18, 2019 WL 1 48692 6 , at *1 (Tex. Crim . App. Apr. 3, 2019) (not designated for publication). That c ase is readily distinguishable because it did not involve th e use or exhibition o f a deadly weapon

. Id. Further , in that case the State relied in part o n the complain ant ’s moth er ’ s testimony to prove the alleged continuous sexual as sau lt , and the co urt held that for the State ’ s chara cterization of the moth er ’ s testimony to be
true , the jury would have had to believe that what the mother said was not w hat she actually meant

. Id. at *4. T he court furthe r noted that some of the evi dence th at could have supported the S ta te ’ s theory was not presented to the jury , and “[a] jury cannot

ma ke inferences based on evidence that they never heard

. ” Id. at * 5. Here, the jury could have dr aw n rea sonable, permissive inferences based on the evid ence ac tual ly presented , taking Bumpas ’ s and Harper ’ s testi mony
— supplemented with the body cam footage

— to mean what they said. We overrule Appellant ’ s first issue. II. Zoom witne ss In A ppellant ’ s seco n d issue , he contends that the trial cou rt erred by not allowin g on e of Appe llant ’ s witnesses at punishment to appear by Zoom, as required by the gover nor ’ s Twenty

- Sixth E mergency Order under Texas Government Code

4 See Tex. R

. App. P. 77.3 ( providing that unpub lished opinions from Court of Criminal Appeals h ave no prec edential value and must not b e cited as authority ).12 Section 22.0 0 3 5

. See T ex. Go v ’ t Cod e Ann. § 22
. 0 03 5 ( b) ; Twenty

- Sixth Emergency Order Regarding COVID

- 19 Sta te o f Disaster , 609 S.W.3d 135 (Tex. 2020)

. At punishment, App ellant ’ s a ttorney informed the trial court, “ We did want to put one other witness thing on the record, Your Honor. [Appellant ’ s] e x - wife [ ] is n ot here, but she w ould have been willing to tes tif y vi a Zoom. The State is opp osed to that. Are you opposed to that? ” The court answered, “ Yes, ” and Appellant ’ s attorney t hen s tated, “ Ok ay. We ’ d like to put it on the record that we asked

. ” T h e trial c ourt confirmed that the request had been denied, and th e St a te and def ense both res ted. Appellant ’s attorney did not make an offer of proof to show t he substan ce of the witnes s ’s testimony

. See Holme s v. State , 323 S.W .3d 163, 168 (Tex. Crim . App

. 2009) (stating that a n offer of proof is nece s sa ry t o show error or harm from the exclusion of evidence unless the substance is apparent from the context )

. We thus have no record of wha t Appellant ’ s ex - wife would have said in her test imony , and the subst a n ce of her testimony is not apparent from the con text . Accordin gly, even if we conclude d that not allowing the witness to appear by Zoom was erro neous, we c ould
not deter mine whether that error was harmful. See Tex. R. App. P. 44. 2 ( stating that

non
- const i t utional error must be disregarded if it does not aff ect a party ’ s substantial rights ) ; Holme s , 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 tria l court ’s limiting of cross

- examination when co uns el m ade no offer of proof detailing the questions he wanted to ask )

.13 A ppellan t asserts that no bill of exceptions was made or requested “ presumably because the bill w ould have had to have been mad e ove r Zoo m , which the State objected to, and the t ria l co urt re fused to allow. ” However, questioning the witness was not the only option for making an offer of proof

. Appellant ’ s atto rney could have made a con cise statement that include d “ a reasonably specific summ a r y of the evidence offered ” an d st at ed t he relevance of th e evidence

. See Holmes , 323 S.W.3d at 168 (quoting Warner v. State , 969 S.W.2d 1, 2 (Tex. Crim. App. 1998))

. Because Ap pellant did not show harm , we overrule h is second issue. See Tex. R. App. P. 4 4

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

- 2 0

- 0014 0

- CR , 2 022 WL 1179 366 , at *5 (Tex. App.

— Eastland Apr. 2 1, 2022, no pet.) (mem. op., not des ignated for publication) (holding appella nt failed to preserve complaint th a t

w

itness had been imp r operly exc luded fo r violating the Rul e)

. C onclusion Having overru led App ella nt ’ s tw o issues, we affirm the trial court ’ s judgment.

/s/ Mike Wallach Mike Wallach J ustice Publish D el ivered : September 15 , 2022