## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00091

- CR

RODERICK RYDELL MINTER , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 28061

Befor e Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION Following a bench trial, Roderick Rydell Minter was found guilty of aggravated assault with a deadly weapon . After finding a deadly weapon enhancemen t to be true, the trial court sentenced Minter to fourteen years’ imprison ment. Minter appeals, maintaining that the evidence was insufficient to support the guilty verdict and that the trial court ’s judgment included a typographical error. Because (1) s ufficient evidence support s the guilty verdict , but (2) the judgment contain s a typographical error, we modify the judgment and affirm it , as modified.
On the afternoon of June 26, 2018, while Nathaniel Lee McDonald , Minter’s cousin, was mowing the lawn a t Oak Hill Baptist Church using a riding lawnmower , he was shot in the mouth with a

. 22 caliber rifle. Minter lived behind the church, and a loaded

. 22 caliber rifle , with a sock over the barrel, was later found at his home. At trial, McDonald testifi e d that he had known Minter “[a]ll his life.” According to McDonald, Minter was much younger than he was. McDonald said that , while he was mowing and just before he got shot, he had seen Minter’s aunt, Mildred Battle, 1 north of McDonald’s location, but “ r unning east, back toward [ Minter ]’s house

. . . waiving her hands in the air.”
Minter s aid that he could not hear what Battle was saying due to the noise coming from the lawnmower. Right about that time, McDonald hit the flowerbed with the lawnmower. A s he turned his head to see what he had done , the bullet hit him in the right side of his jaw. McDonald turned around and noticed that Battle had stopped running. McDonald said that his

1 Battle lived next door to Minter and was also related to McDonald.3

j aw dropped , that is, it had become “unhinged” from his body. Accor d ing to McDonald, after he was shot, he drove away to avoid getting shot again. A second shot missed. By the time McDonald had gotten back to the church parking lot , his son had arrived. Shortly after that, McDonald’s wife contacted the police , and Mc D onald was transported by ambulance to th e hospital. McDonald said that he did not see Minter shoot him but believed he had , because “the shot came from [Minter’s] property.” 2 He also stated that Minter had been upset with him , because , a few years ago, McDonald had blown grass shavings on Minter’s property while he was mowing. On cross

- examination, McDonald conceded that it was not unusual for individuals living in the area to fire rifles or shotguns. McDonald’s son, Nathaniel McDonald, Jr. (Nathani e l) , testified that , on the day of the incident, he had been outside helping his father change the blades on the mower. On the way back to his nearby house , Nathaniel saw Minter “ going down the trail” t oward his aunt Battle’s
hous e. According to Nathaniel , he could see Minter well, and Minter was carrying a . 22 rifle, which “he carried

. . . everywhere.” 3 Nathaniel said that by the time he arrived inside the house, he could hear that McDonald had started mowing. Nathaniel explained, “First I heard a sho t , and then I heard [Minter’s] auntie holler what are you doing, and then I heard a second shot.”
Nathaniel then heard McDonald yell and drive the mower down the road

. Nathaniel said that , in the immediate aftermath of the shooting, only Minter, McDonald , Battle, and he w ere in the area

2 McDonald testified that the gunshots were “ coming from the northeast[,]” which was the area in which Minter lived. In ad dition, T exas Ranger Stacy McNeal, wh o investigated the s h o o ting, said that the shots “[m]ost likely” came “from the north, northeast , ” that Minter lived “ directly back to the east, ” and that his aunt lived “ north of the church. ”

3 Nathaniel estim ated that he had s een Minte r with the rifle “a li ttle over an ho u r ” b efore McDonald was shot, and he believed the two of them were about 150 yards apart.4

and that Minter was carrying a rifle. According to Nathaniel, McDonald told him that it was Minter who had shot him. Nathaniel also testified that n o one else could have been the shooter

. In addition, Nathaniel explai n ed that he also had had problems with Minter, stating that Minter had previously hidden in the bushes and pointed his rifle at Nathaniel. According to Nathaniel, Minter behaved in this manner several times , though he had no reason to threaten him. John Warren, 4 a nearby neighbor, said that , later , the day of the incident, Minter had visited Warren ’s house, did not have a weapon at that time, and seemed to be in a good mood. Warren also said that he did not hear any gunshots that day but learned abou t the shooting “after the fact.”
Minter ’s testi mony contradicted much of the above. M inter t estified that Nathaniel was “lying” about seeing Minter running with a rifle, denying that he carried a rifle on that occasion or ran from the scene

. Minter al so cl aimed that he had not previously hidden in the bushes, with a gun, waiting for Nathaniel. Minter stated that he had heard a person mowing that day but that it was not McDonald. He als o contradicted McDonald’s testimony that Minter had been angry at
h im f or blowing grass in his yard

. According to Mi nter, he had not shot , or even been in possession of, a gun on the day of the incident

. On the other hand, McNeal testified that Minter told Deputy Draper, who transported Minter t o jail, that he had been shoo ting a gun earlier that day. During McNeal ’ s interview, however, Minter denied shooting a gun that day

. N o guns hot residue was found on

4 Warren, Minter, the McDonalds, and Battle were all related.5

Minter’s hands , and no shell casings were found in the area. Minter conceded tha t he owned two

. 22 rif l es and some sh otguns. 5 (1) Sufficient Evidence Supports the Guilty Verdict Minter contends that the evidence was insufficient to identify him as the person who shot McDonald. We disagree. In evaluating legal sufficiency, we revi ew all the evidence in the light most favorable to the trial court’s judgment to determine wheth er any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019, p e t. ref’d) (cit ing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2 010) (plurality op.); Jackson v. Virginia , 443 U.S. 307, 319 (1979); Hartsfield
v. State , 305 S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref’d)). In eithe r a bench trial or a j u ry trial, lega l sufficiency of the evidence is measured by the elements o f the offense as defined by a hypothetically correct jury charge. Matlock v. State , 20 S.W.3d 57, 61 (Tex. App.

— Texarkana 2000, pet. ref’d). The “hypothetical ly correct” jury charg e is “one that accurately sets out the law, is authorized by the indictment , does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particu lar offense for which th e defendant w as tried.” Id

. In this case, the State alleged that on or about June 26, 2018, Minter “did then and there intentionally, knowingly, and recklessly cause bodily injury to Nathaniel McDonald by shooting him with a firea rm, and the

5 In his intervi ew with investigators, Minter said that he had s everal weapons in his home but that some o f t h e m were not functional.6

defendant di d then and th ere use or exhibit a deadly weapon, namely a firearm [,] during the commission of the assault.” Here, Nathaniel testified that he saw Minter with a .22 rifle a short time before the shooting took place. Nathaniel state d that Minter often carri ed a . 22 rif le, and Minter admitted during his interview and at tria l that he owned multiple weapons, including two

. 22 rifles. During the search of Minter’s house, a loaded

. 22 rifle was found with a sock over the barrel. Furth er, McDonald testified th at j ust befo r e he was shot, he had seen Battle running toward Minter’s house , wa ving her hands and yelling. Although McDonald could not hear what Battle was saying, Nathaniel testified that he had heard Battle yell , “What a re you doing?” In addition, mult iple witnes s es testified that the shots came from the north east , that is, the direction of Minter’s property. Further, although Minter denied having any former confrontations with McDonald about the way he m owed the church yard, McDonal d said that Minter had been
fr u strated with him in the past for bl owing grass shavings onto Minter’s yard. While one might find this to be a petty complaint, and certainly not something to warrant such aggressive behavior, Nat haniel testified that, on mor e than one occasion and for no reason, Nathaniel had returned home to find Minter beside a tree or in a bush pointing a rifle at McDonald

. Nathaniel testified that it was not possible that anyone else could have shot at McDona ld that day.
M inter claimed t hat he was at Warren’s house a t or around the time McDonald was sh ot. Yet, Warren testified that Minter did not come to his home until around six p.m., which would have given Minter plenty of time to shoot McDonald, get rid of any gunshot residue on his b ody,

an d pick up any shell cas i ngs .7

Minter’s testimony contradicte d much of the other evidence presented at trial , and he even contradicted himself

. As the State contends, “Attempts to conceal incriminating evidence,
inconsist ent statements, and implausib le expl anations to the police a re probative of wrongful conduct an d are also circumstances of guilt.” See Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (citing Graham v. State , 566 S.W.2d 941, 951 (Tex. Crim. App. 1978); United
States v. Cano

- Guel , 167 F.3d 900, 905 (5 th C ir. 1999) ) . Moreover, i t is within the province of the fact

- finder to judge the credibility of the witnesses and the weight to be given to their testimony , and it may reconcile or resolve conflic ts in the testimony, rejecting or acc epting such portions a s it see s fit. Thomas v. State , 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). The trial court, as the fact

- finder, was entitled to accept the State’s version of the facts and to reject Minter’s versio n. Moore v. State , 804 S.W.2d 165 (T e x. App.

— Houston [14t h Dist.] 1991, no pet.)

“ Ci rcumstantial evidence is as probative as direct evidence in establishing guilt.” Hooper
v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

. In drawing reasonable infere nces, the trier of fact “ may us e commo n sense and apply co m m on knowledge, observation, and experience gained
i n the ordinary affairs of life .” Duren v. State , 87 S.W.3d 719, 724 (Tex. App.

— Texarkana 2002, pet. struck) (citing Manrique v. State , 994 S.W.2d 640, 649 (Tex. Crim. App. 1999 ) (Meye rs, J., concurring))

. It is true that much of the evidence in this case would be considered circumstantial and, w hile each piece of evidence, alone, would be insufficient to support a guilty verdict, when we review al l the evidence in the light most fa vorable to the trial c o u r t’s judgment,
we find that the fac t

- finder coul d have found the essential elements of the charged offense8

beyond a reasonable doubt , including that Minter was the shooter. See William son , 589 S.W.3d at 297.
We overru le t his point of error. (2) The Ju d

g ment Contains a Typographical Error Minter also contends that the trial court’s judgment erro neously references a plea of not true to an enhancement allegation and a finding of true i n the judgment , although the indictment did not include such an enha nc e m ent allegation but, instead, contained a deadly

- weapon allegation

. Minter contends that the judgment should be reformed to correct the e rror . We
agree. In the indictment, the State alleged that Minter c ommitted aggravated assault wi th a deadly weapon b y “intentionally, knowingly, and recklessly caus[ing] bodily injury to Nathaniel McDonald by shooting him with a firearm, and that [Minter] did then and there use or exhibit a deadly weapon, namely a firear m [,] during the commission of the assault.” 6 Aft e r hearing the evidence, the trial court orally stated that it believed the State had met its burden of proof beyond a reasonable doubt and found Minter guilty “ as charged in the indictment. ” However, t he trial

co urt also orally found “as true the enhance m e nt paragraph alleging the discharge of a firearm or the use o r commission of a firearm during this event.” 7

6 By statute, a firearm is considered a deadly weapon per se. See T EX
. P ENAL C ODE A NN . § 1 .07(17) (A)

.
7 At his initial arraignment held on October 16, 2018, Minter was asked only if he desired to plead guilty or not guilty to th e o f

f ense as charged in the indictment, to which Minter responded, “Not guilty.” Ho wever, just before trial began, Minter a gain entered a not guilty plea to the charged offense, but the trial court s tated, “I t may be a stretch here but to the allegation t h a t a deadly weapon was used during the commission of the offense, how do you plead to that, true or not true?” Minter resp onded, “Not true.”9

In its written judgment, the trial cour t (1) m ade a n affirmative deadly

- weapon finding

— a firearm, 8 (2) state d that Minter ple d not true to the f irst enhancement paragraph, and (3) made a finding of true to the first enhancement paragraph. Yet, Minter is correct that the inclusion of the enhanceme nt paragraph language was error. 9 This is because Min ter’s ind ictment did not allege an enhancement p aragraph 10 but, instead, alleged a deadly

- weapon allegation which, according to the trial court ’s ju dgment , was adequately proven by the State. 11 An app ellate court has the power to correct and reform the ju dgment of a trial court to make the record sp e a k the truth when it has the necessary information to do so or to make any appropriate order as the la w and the nature of the case may require. T EX
. R. A PP
. P . 43.2; French
v. State , 8 30 S.W.2d 607, 609 (Tex. Cr im. App. 1992)

. Here, the reco rd supports m o d ification of the judgment regarding Minter’s plea to , and the trial court’s finding on , a non - e xistent enhancement paragraph. Accordingly , we sustain Minter’s second point of error and modify the trial c ourt’s ju dgment to reflect Mint er’s plea to the f i r s t enhancement paragraph to be “N/A” and the trial court’s finding of true on the first enhance ment paragraph to be “N/A.”

8 As in the case before us now, an affirmative finding of a d ead ly weapon was properly before the trial court b e c a u se
“ the indictment specifically allege [d] the words “deadly weapon” in describing the weapon used and the verdict reads guilty “as charged in the indictment.” Polk v. State , 693 S.W.2d 391, 394 ( Tex. C rim . App. 1985). Moreover, Section 42A.054 , su bse c t i o ns ( c) and (d) , of the Texas Code of Criminal Procedure req uires the trial court to enter an affirmative finding in its judgment. Among other things, t he entry of a deadly weapon finding in a judgment affects a de fendan t’s parole eligibility. See T EX
. G O V ’ T C ODE A NN . § 508.145(d).

9 Minter contends that the error in the trial court’s judgment was a clerical one , and he is correct.

10 See T EX
. P ENAL C ODE A NN . § 12. 42

.
11 Minter does not claim that the St ate pr ese nted insufficient evidence t o s upport the t r ial court’s deadly

- weapon finding.10

Accordingly, we modify the trial court’s judgment to reflect Minter’s plea to t he first enhancement paragraph to be “N/A” and th e t rial court’s finding of true on the first enhancement paragraph to be “N/A.” We affirm the trial court’s judgment , as modified.

Josh R. Morriss, III Chief Justice

Date Submitted: Decem ber 28, 2 020 Date Decided: January 6 , 202 1
Do N o t P u blish