COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CLINTON W. AIRHEART,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-11-00037-CR

Appeal from the

Criminal District Court No. 2

of Tarrant County, Texas 

(TC# 1215028R) 

O P I N I O N

Clinton W. Airheart appeals his conviction for aggravated assault on a public servant, a 

first degree felony. Appellant brings eleven issues arguing that the trial court erred: (1) in 

denying Appellant’s motion for a recess; (2) through (6) in admitting five exhibits because the 

admission violates provisions of the Texas Rules of Evidence; (7) in overruling an objection to 

inadmissible testimony under the Texas Rules of Evidence; (8) by not submitting a lesser-included 

offense of reckless conduct; (9) in rejecting Appellant’s application paragraph incorporating 

voluntary conduct. In Issue Ten, he contends that the prosecutor engaged in improper jury 

argument, and in Issue Eleven that the evidence is legally insufficient. We affirm.1

PROCEDURAL BACKGROUND

Appellant was indicted on one count of aggravated assault on a public servant and entered 

a plea of not guilty on December 7, 2010. The jury found Appellant guilty of aggravated assault 

on a public servant following a five-day trial. During the punishment phase, Appellant pleaded 

 

1 This case was transferred from the Second Court of Appeals to this Court pursuant to a docket equalization order 

entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied 

precedent of the Fort Worth Court of Appeals. See TEX.R.APP.P. 41.3.
2

true to a repeat offender allegation.2 The jury assessed his punishment at life imprisonment in the 

Institutional Division of the Texas Department of Criminal Justice. Appellant timely appealed 

his conviction and sentence.

FACTUAL BACKGROUND

On June 5, 2009, Starlet Airheart (“Mrs. Airheart”) phoned 911 to report that she had been 

assaulted by Appellant. Appellant dumped her purse on her head while she was sleeping, which 

was followed by an argument that developed into physical violence, including Appellant choking 

Mrs. Airheart several times. Mrs. Airheart left their residence, located at 4709 Forbes Street, 

went to a neighbor’s house, called the police, and then waited outside with her children.

Officer J. B. McGinty, Jr., (“Officer McGinty”) was dispatched to the Forbes Street 

residence on a domestic disturbance call, arriving at approximately 8 a.m. Officer McGinty was 

driving a marked patrol car and was wearing a police uniform. He spoke with Mrs. Airheart and 

noticed she had visible injuries. Officer McGinty called for an assist unit based on a number of 

factors including that the door was secured, he could not get inside, did not have a family violence 

packet with him, and needed a camera. Officer Sean Kelm (“Officer Kelm”) was dispatched as 

the assist unit, arriving in a marked police car and wearing his police uniform. When Officer 

Kelm arrived, Officer McGinty relayed to him the information provided by Mrs. Airheart, 

including her concern that the Appellant might have access to a “pistol” and an “AK-47.”

The officers knocked on the front door and announced “Fort Worth police” several times.

When no one answered, Mrs. Airheart retrieved a key and unlocked the front door of the residence, 

 

2 Appellant had prior convictions for burglary of a habitation, evading arrest, driving while intoxicated, driving with 

license suspended, assault, possession of a controlled substance, theft of property $500 to $1500, theft of service or 

property $50 to $500, and forgery. At the time of his arrest, Appellant had a warrant for his arrest issued after 

Appellant violated conditions of pretrial bond for another theft offense.
3

and the officers entered the residence with their weapons drawn. The officers moved through the 

residence, briefly looking in each room for Appellant. When they reached the back bedroom, 

Officer McGinty observed a mattress move, indicating someone was hiding there. Calling from 

the hallway for the person to come out, Appellant eventually emerged from under the mattress. 

Officer Kelm ordered Appellant to stand up and put his hands in the air, which Appellant complied 

with.

As Officer Kelm entered the bedroom to handcuff Appellant, Officer McGinty noticed that 

Appellant had a gun stuffed in his waistband, and yelled “gun.” Appellant drew the gun, pulling it 

from his waistband and pointing it at the officers. Officer McGinty was not sure who fired first. 

Officer Kelm testified that Appellant fired first. The record is clear that Appellant fired at the 

officers, and that both officers fired at Appellant. Officer Kelm testified that he saw the muzzle 

blast and felt the heat from the blast on the left side of his face. Officer McGinty thought Officer 

Kelm had been shot. Appellant was shot in the abdomen and fell to the floor.

While Appellant was on the floor, the officers ordered him to put his hands where they 

could see them. Appellant complied, and was handcuffed by the officers. The officers found 

Appellant’s gun beneath his body and secured the weapon. The officers dragged Appellant to the 

living room and called for an ambulance and additional officers. During their investigation 

following the shooting, crime scene officers discovered an AK-47 in a sleeve of a jacket, and 

bullets for it in a shoebox, in a closet in the back bedroom where the shooting took place.

DISCUSSION

Appellant presents eleven issues, seeking to have the Court reverse the judgment and enter 

a judgment of acquittal, remand the cause for a new trial on both guilt/innocence and punishment, 
4

or remand for a new trial on punishment.

Motion for Continuance

In Appellant’s first issue, he argues that the trial court erred by not granting him a recess 

during the penalty trial until after the effects of medications he had been given the night previous 

wore off. Appellant argues that he was extremely drowsy, nauseated, and was unable to 

participate in the trial. Appellant asserts that the jury would have seen this and drawn any number 

of negative inferences against Appellant. The State contends that Appellant failed to preserve this 

issue because there was no written motion for a continuance, or in the alternative, that the trial 

court did not abuse its discretion in denying the request.

On the start of the last day of the punishment trial, December 10, 2010, outside the 

presence of the jury, Appellant’s counsel made an oral motion for a recess requesting a 

continuance until either later the same day or until the following Monday, as Appellant was 

“feeling sick” from the effects of the medication that the nurse had given him the night before. In 

response to questions posed by the trial court while under oath, Appellant testified he was being 

denied his right to counsel and ability to confer with counsel due to his “physical limitation.” 

Appellant’s counsel advised the court that Appellant did not intend to testify. There was no 

evidence presented indicating what type of medication was given to Appellant, when it had been 

given, the dosage, or why it had been given. The trial court denied the continuance, but stated that 

“if [Appellant] gets to the point that he feels nauseated or something like that, I want him to notify 

the bailiff and we’ll provide something for him in that event.”

Appellant argues that by “sitting before the jury while extremely drowsy, nauseated, and 

sick” and that the jury “might have concluded” that the Appellant “had been medicated for a 
5

reason.” Furthermore, that reason would be prejudicial to Appellant, “because he had been 

violent or was potentially violent and needed sedation for purposes of the remaining punishment 

proceedings.” Appellant argues that this is “comparable to displaying a defendant before the jury 

in shackles,” particularly in light of testimony from the day when Appellant’s maladaptive 

behavior was discussed.

Nothing in the record shows that this argument was raised before the trial court. 

Appellant has failed to preserve this due process complaint for review by this Court. See

TEX.R.APP.P. 33.1; Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993)(rejecting due process 

complaint when party failed to raise it at trial); Sano v. Greenlee, 2011 WL 2436737, at *8 

(Tex.App.--Fort Worth June 16, 2011, no pet.)(mem. op.)(same).

However, assuming arguendo, that the issue remains ripe for appellate review, the Texas 

Code of Criminal Procedure permits a continuance only upon a written motion sworn by the State 

or the defendant. TEX.CODE CRIM.PROC.ANN. arts. 29.03, 29.08 (West 2006). The Court of 

Criminal Appeals has stated, “[a] motion for continuance not in writing and not sworn preserves 

nothing for review.” Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999), cert. denied, 

529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Appellant’s argument here is that his 

request was a motion for a recess based on equitable grounds. See Munoz v. State, 24 S.W.3d 

427, 431 (Tex.App.--Corpus Christi 2000, no pet.). The Munoz court notes that case law supports 

such a request, and that such a motion, “based on equitable grounds rather than statutory grounds, 

is entirely within the sound discretion of the court, and will only call for reversal if it is shown that 

the court clearly abused its discretion.” Munoz, 24 S.W.3d at 431, citing Alvarado v. State, 818 

S.W.2d 100, 103 (Tex App.--San Antonio 1991, no pet.). The Munoz court notes a separate line 
6

of cases which generally, but not uniformly, recognizes a counsel’s right to make an oral motion 

for a continuance which is enforceable via the equitable powers of the court of appeals. Munoz, 

24 S.W.3d at 431. This would require a showing that the denial of the motion by the trial court 

amounts to a denial of a fundamental principal of due process, at which point that ruling is subject 

to appellate review. Id., citing Petrick v. State, 832 S.W.2d 767, 770-71 (Tex.App.--Houston [1st 

Dist.] 1992, pet. ref’d); O’Rarden v. State, 777 S.W.2d 455, 459 (Tex.App.--Dallas 1989, pet. 

ref’d).

As in Munoz, Appellant did not file a sworn, written motion for a continuance. The 

unsworn oral motion made by Appellant’s trial counsel, whether a motion for a continuance or a 

motion for a recess, can therefore only be based on equitable grounds rather than statutory 

grounds. Therefore the trial court’s decision will only be overturned if there was a clear abuse of 

discretion. Munoz, 24 S.W.3d at 431-32, citing Hernandez v. State, 492 S.W.2d 466, 467 

(Tex.Crim.App. 1973).

There is no evidence that the trial court abused its discretion in this case. The record 

shows that the trial court was ready to take action should Appellant’s condition have worsened

during the proceedings. Nothing in the record indicates any change in Appellant’s condition 

following the denial of the motion. The record reflects a discussion later that same morning 

between the judge and Appellant regarding Appellant’s decision not to testify. No mention was 

made of Appellant’s condition at that time. We find no abuse of discretion in the trial court’s

denial of Appellant’s motion. Issue One is overruled.

Errors in Admitting Evidence

Appellant’s second through sixth issues relate to admission of State’s Exhibits 146, 147, 
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148, 149, and 179 on the basis that their admission violated Rules 401, 403, and 404(b) of the 

Texas Rules of Evidence. The State argues that Appellant failed to preserve complaints regarding 

these exhibits as Appellant did not object to them prior to their admission or, alternatively, that the 

trial court did not abuse its discretion in admitting the exhibits.3

Exhibits 146 through 149 are photographs of the AK-47 and of items related to it, while 

Exhibit 179 was the AK-47 rifle itself. The exhibits were introduced as part of the testimony of 

Officer Presney, who was assigned to the crime scene search unit. Officer Presney testified that 

he found the AK-47 inside the sleeve of a jacket in the closet in the back bedroom and ammunition 

for the weapon in a shoebox. He was shown Exhibits 146 through 149 and indicated that these 

photographs showed where the weapon and the ammunition were found. Following this 

identification, the State offered the photographs as exhibits, at which time counsel for Appellant 

objected on the grounds that their admission violated Rules 401, 403, and 404(b). The court 

viewed the photos and overruled the objections. Officer Presney was shown and identified 

Exhibit 179, the AK-47, which was then introduced as an exhibit, subjected to an objection from 

Appellant on the same ground as above, which the court overruled.

A similar situation occurred in Ratliff v. State, 320 S.W.3d 857 (Tex.App.--Fort Worth 

2010, pet. ref’d). In Ratliff, the appellant filed a motion to suppress evidence but did not obtain a 

ruling on the motion or a pretrial hearing. The appellant in Ratliff allowed a detective to testify 

about the evidence before objecting to the admission of the physical evidence. The Ratliff court 

held that the appellant’s failure to object at the time the detective specifically described the 

 

3 During a pretrial hearing, counsel for Appellant asserted a general Motion to Suppress seeking to suppress all 

evidence obtained as being obtained without a search warrant. The trial court held it in abeyance, based on both 

counsels advising that the motion can be handled through the course of the trial. No ruling was obtained regarding 

this motion.
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physical evidence and how he obtained the evidence resulted in appellant forfeiting any error 

relating to his objection to the State’s later introduction of the evidence. See TEX.R.APP.P. 33.1; 

Ratliff, 320 S.W.3d at 862, citing Tell v. State, 908 S.W.2d 535, 538, 543-44 (Tex.App.--Fort 

Worth 1995, no pet.)(concluding that “[b]ecause Tell failed to object at the time the ski mask was 

mentioned and allowed further questions and answers before finally objecting,” he “waived any 

error in the admission of the ski mask.”); Turner v. State, 642 S.W.2d 216, 216-17 

(Tex.App.--Houston [14th Dist.] 1982, no pet.)(holding that the defendant forfeited his objections 

at trial by allowing the detective to testify “extensively to the arrest and the items found in the 

search” where appellant did not object to the testimony but only to five exhibits). Here, Appellant 

did not seek a ruling on his motion to suppress evidence instead he agreed to permit the trial court 

to hold it in abeyance during the trial. Appellant allowed testimony regarding the AK-47 and 

associated items to proceed without objection, objecting only once to the State attempting to 

introduce the physical evidence itself. Appellant has waived any error in admission of the AK-47 

and the associated photographs.

Even if he had not waived error, we still find no abuse of discretion in admitting the 

exhibits. A trial court’s decision to admit or exclude evidence is reviewed under an abuse of 

discretion standard. See De la Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009). A trial 

court abuses its discretion when its decision lies outside the “zone of reasonable disagreement.” 

De la Paz, 279 S.W.3d at 343-44.

As a general matter, relevant evidence is admissible. See TEX.R.EVID. 402. Evidence 

may be excluded despite its relevance, however, if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 
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considerations of undue delay, or needless presentation of cumulative evidence. TEX.R.EVID.

403. An objection under Rule 403 requires the trial court to weigh the probative value of the 

evidence to determine whether it is substantially outweighed by its potential for unfair prejudice. 

Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). A Rule 403 balancing test 

includes consideration of several factors: (1) the inherent probative force of the proffered item of 

evidence; (2) the proponent’s need for the evidence; (3) the evidence’s tendency lead to a decision 

on an improper basis; (4) any tendency of the evidence to confuse or distract the jury from the main 

issues in the case; (5) the tendency of the evidence to be given undue weight by a jury that has not 

been equipped to evaluate the probative force of the evidence; and (6) the likelihood that the 

presentation of the evidence will consume an inordinate amount of time, or be cumulative of 

evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 n.8 (Tex.Crim.App. 

2006).

1. Probative Value and Need

With regard to both the photographs and the weapon, the trial court could reasonably have 

concluded that the evidence was probative to show that Appellant had access to an AK-47, which 

was located in a closet in the same room as Appellant.

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2. Unfair Prejudice

Appellant argues that the exhibits had the tendency to incite the jury into deciding the case 

on an improper basis, contending he was not being tried for illegally possessing an assault rifle or 

with threatening anyone with an assault rifle. While the exhibits were certainly prejudicial to 

 

4

Indeed, the evidence was relevant given the fact that Mrs. Airheart had informed the police officers that Appellant 

did have access to a pistol and an AK-47.
10

Appellant, the trial court could reasonably have concluded that the prejudice was not so unfair as to 

warrant exclusion.

3. Confusion of the Issues

As was discussed in factor one, supra, the evidence presented by the State was consistent 

with the theory that Appellant had access to an AK-47 in the same room he was found and where 

he opened fire on police officers. There is no indication in the record that the challenged exhibits 

created or added any confusion regarding the events leading up to and following the shooting. 

Accordingly, the trial court could reasonably have concluded that the evidence had very little 

tendency to confuse, and that the evidence assisted the jury in understanding the entirety of the 

circumstances surrounding the shooting.

4. Misleading the Jury

Similar to our analysis under factors one and three, due to the nature and content of the 

evidence at issue, the trial court could reasonably have concluded that there was little danger the 

exhibits would mislead the jury.

5. Undue Delay and Needless Presentation of Cumulative Evidence

As is evident from the record, the State presented evidence regarding the AK-47 during the 

guilt-innocence phase of trial through multiple witnesses, including Mrs. Airheart and crime scene 

officers. However, in light of the probative value of the exhibits, the trial court could reasonably 

have concluded that there was no undue delay implicated by their presentation and could 

reasonably have concluded that to the extent the exhibits were cumulative, their presentation was 

necessary.

In sum, having considered the Rule 403 factors as they relate to the challenged items of 
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evidence, we conclude that the trial court could reasonably have concluded that the probative value 

of the evidence was not substantially outweighed by the potential for undue prejudice. Therefore, 

the trial court’s decision to admit the evidence over Appellant’s objection was not an abuse of 

discretion in either instance.5 Issues Two through Six are overruled.

Error in Admission of Statement

Appellant’s seventh issue asserts that the trial court erred in overruling his objection to a 

statement made by Mrs. Airheart that he argues was inadmissible under Rules 401, 403, and 

404(b) of the Texas Rules of Evidence. The State argues that the Appellant has failed to preserve 

this issue for review and even if it was properly preserved, that the court did not abuse its 

discretion in overruling the objection. The State argues that Appellant’s objection was untimely, 

as the objection was not raised until the prosecutor had proceeded into asking the next question and 

therefore, the objection was not made at the “first opportunity” or “as soon as the ground for 

complaint is apparent or should be apparent.” Aguilar v. State, 26 S.W.3d 901, 905-06 

(Tex.Crim.App. 2000). The State cites to Lagrone v. State, 942 S.W.2d 602, 618 

(Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997), in support of 

their argument that the objection was untimely and therefore waived. In Lagrone, the prosecutor 

asked two questions then passed the witness before the defense counsel raised an objection to both 

questions. The Court of Criminal Appeals found that the objection there was untimely and 

therefore the error was not preserved. We agree.

Mrs. Airheart testified that before the police entered the residence, she heard noises coming 

from inside the house but did not know what the noises were at the time. She then testified that 

 

5 Having concluded that the rulings were not erroneous, there is no need to conduct a harm analysis. See

TEX.R.APP.P. 44.2(b).
12

when the police allowed her back inside the house she found that Appellant had broken all the

pictures of her children. As the prosecutor began asking his next question, counsel for Appellant 

objected on the basis of Rules 401, 403, and 404(b) and the trial court overruled the objection. 

Here, the record reflects that the State asked a series of four questions regarding the noises, each of 

which were asked and answered, and was in the process of asking a fifth question when the 

objection was made. The objection was not timely and the record reflects no good cause offered 

to explain why there was a delay in making the objection. Therefore, nothing is preserved for our 

review. Lagrone, 942 S.W.2d at 618. See also Polk v. State, 729 S.W.2d 749, 753 

(Tex.Crim.App. 1987). Appellant’s seventh issue is overruled.

Even assuming the error was preserved, we find no harm. Rule 44.2(b) of the Texas Rules 

of Appellate Procedure provides that “[a]ny other error, defect, irregularity, or variance that does 

not affect substantial rights must be disregarded.” TEX.R.APP.P. 44.2(b). A conviction should 

not be overturned if the appellate court, after examining the record as whole, has fair assurance that 

the error did not influence the jury, or had but a slight effect. See Ex parte Martinez, 330 S.W.3d 

891, 903 (Tex.Crim.App. 2011). In examining the record, pointing out that Appellant broke 

pictures of Mrs. Airheart’s children was not the likely “tipping point” which led to Appellant’s 

conviction for aggravated assault on a public servant. The testimony explained the entirety of the 

circumstances, specifically the domestic violence call, which precipitated the police involvement

that morning.6The other evidence submitted during the course of the trial overwhelmingly 

supported the jury’s determination of guilt. Therefore, even assuming Appellant’s objection was 

timely made, any error was harmless. Appellant’s seventh issue is overruled.

 

6

For example, Mrs. Airheart testified, without objection, that Appellant physically assaulted her prior to her calling 

911.
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Lesser Included Offense

Appellant’s eighth issue argues that the trial court erred by not submitting the lesser 

included offense of reckless conduct. On the final day of the trial, Appellant requested that the 

charge include the lesser-included offense of deadly conduct7and submitted a proposed charge, 

which the court rejected. Appellant claims that the error was harmful because it left the jury no 

alternative but to convict Appellant of the charged offense. Appellant cites to Bell v. State, 693 

S.W.2d 434, 436, 439 (Tex.Crim.App. 1985)(identifying Section 22.05 as reckless conduct) in 

support of his argument that deadly conduct is a lesser included offense of aggravated assault.

In Bell, the Court of Criminal Appeals noted that “[w]hether one offense bears such a 

relationship to the offense charged so as to constitute a lesser included offense” is determined on a 

case-by-case basis. Id. at 436. “An allegation that an offense has been committed in one way 

may include a lesser offense, while an allegation that the offense was committed in another way 

would not include the lesser offense.”

Courts must perform a two-step analysis in determining whether to submit a 

lesser-included charge: (1) the requested charge is for a lesser-included offense of the charged

offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser 

offense. Amaro v. State, 287 S.W.3d 825, 827 (Tex.App.--Waco 2009, pet. ref’d). The first 

prong is determined from a review of the pleadings. Performed by comparing the statutory 

elements of the offense charged in the indictment with the elements of the requested lesser offense, 

this determination is one of law and does not depend on the evidence presented at trial. If the first 

requirement is met, the second prong requires a review of the evidence to determine if there is any 

evidence that, if Appellant is guilty, he is guilty of only the lesser offense. See Hall v. State, 225 

 

7 TEX.PENAL CODE ANN. § 22.05(b)(1)(West 2011).
14

S.W.3d 524, 535-36 (Tex.Crim.App. 2007).

We first turn to the language of the indictment for aggravated assault against a public 

servant.8 The indictment charged that Appellant:

[D]id intentionally or knowingly threaten imminent bodily injury to S. Kelm, a 

public servant, to-wit: an employee or officer of government, namely a police 

officer for the city of Fort Worth, while S. Kelm was lawfully discharging an 

official duty and the defendant knew that S. Kelm was a public servant, and the 

defendant did use or exhibit a deadly weapon during the commission of the assault, 

to-wit: a firearm.

An offense is a lesser included offense if: (1) it is established by proof of the same or less 

than all the facts required to establish the commission of the offense charged; (2) it differs from the 

offense charged only in the respect that a less serious injury or risk of injury to the same person, 

property, or public interest suffices to establish its commission; (3) it differs from the offense 

charged only in the respect that a less culpable mental state suffices to establish its commission; or 

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

TEX.CODE CRIM.PROC.ANN. art. 37.09 (West 2006).

Here the indictment alleges the following statutory elements of aggravated assault on a 

public servant: (1) Appellant; (2) intentionally or knowingly; (3) threatened Officer Kelm with 

imminent bodily injury; (4) while exhibiting or using a deadly weapon; and (5) knew that Officer 

Kelm was a public servant lawfully discharging an official duty. See TEX. PENAL CODE ANN. 

§§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B), (c)(West 2011). The statutory elements of deadly conduct 

are: (1) a person (2) recklessly (3) engages in conduct that places another in imminent danger of 

serious bodily injury. TEX.PENAL CODE ANN. § 22.05(a)(West 2011). Recklessness and 

 

8

For comparison, the indictment in Bell alleged that the defendant: “[D]id then and there knowingly and 

intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten George Smith with imminent 

bodily injury by the use of said deadly weapon.” Bell, 693 S.W.2d at 437.
15

danger are presumed if the actor knowingly pointed a firearm at or in the direction of another. Id. 

at § 22.05(c).

The Amaro court performed a comparison of Bell, which held that deadly conduct is a 

lesser-included offense of aggravated assault, with Miller v. State, 86 S.W.3d 663 

(Tex.App.--Amarillo 2002, pet. ref’d), where the court held that deadly conduct was not, based on 

the indictment, a lesser-included offense of aggravated assault against a public servant.9 The 

Amaro court questioned Miller, concluded that Bell was more persuasive and held that deadly 

conduct is a lesser-included offense of aggravated assault on a public servant “under the 

circumstances of this case because it is established by proof of the same facts required to establish 

the commission of aggravated assault on a public servant by exhibiting a deadly weapon.”

Amaro, 286 S.W.3d at 829. We find that the first prong of the Amaro test is met in this case.

Turning to the second prong of the analysis, if there is some evidence in the record that 

would permit a jury to rationally conclude that Appellant is guilty and “guilty only of the 

lesser-included offense,” then Appellant would be entitled to a deadly conduct instruction. 

Amaro, 286 S.W.3d at 830, citing Hall, 225 S.W.3d at 536 [Emphasis added]. Appellant argues 

that Officer Kelm, as a public servant, is necessarily also an “individual” and that Appellant 

 

9 As the court notes in Miller: 

Whereas the indictment in Bell charged the defendant in that case with committing the offense of 

aggravated assault by ‘using’ a deadly weapon, the indictment in appellant’s case charged appellant 

with committing the offense by ‘using or exhibiting’ a deadly weapon. Thus, proving the offense 

as alleged in the indictment does not require proof that appellant ‘used’ a deadly weapon; proof that 

appellant ‘exhibited’ a deadly weapon in the commission of the offense would suffice. The 

difference is dispositive, as it does not necessarily follow that the danger of serious bodily injury 

is established when a deadly weapon is ‘exhibited’ in the commission of the offense as opposed to 

being ‘used.’

Miller, 86 S.W.3d at 666-67 [Emphasis added].
16

discharged his firearm at an “individual” named Sean Kelm. We are not persuaded by this 

argument. The record clearly reflects that Appellant knowingly and intentionally exhibited or 

used a firearm by pointing and firing it at two uniformed Fort Worth police officers who 

announced their presence and were acting in accordance with the law. The testimony at trial 

showed that Appellant deliberately drew a pistol when Officer McGinty spotted it and shouted 

“gun,” pointed it at the officers, then fired at them. The record contains no evidence that shows 

that Appellant is guilty only of deadly conduct. See Amaro, 287 S.W.3d at 830-31. See also

Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994)(“If a defendant either presents evidence 

that he committed no offense or presents no evidence, and there is no evidence otherwise showing 

he is guilty only of a lesser included offense, then a charge on a lesser included offense is not 

required.”). Because the second prong is not met, Appellant was not entitled to an instruction on 

deadly conduct and we overrule Appellant’s eighth issue.

Application Paragraph

The ninth issue asserted by Appellant is that the trial court erred in rejecting Appellant’s 

application paragraph incorporating voluntary conduct. The trial court included the instruction

requested by Appellant regarding voluntary conduct, but not the application paragraph 

incorporating the same.

Appellant requested the following instruction be included:

Therefore, if you believe from the evidence beyond a reasonable doubt that 

on the occasion in question the defendant . . . did threaten a public servant . . . with 

imminent bodily injury and that he did use or exhibit a deadly weapon, to-wit: a 

firearm, as alleged in the indictment, but you further believe from the evidence, or 

you have a reasonable doubt thereof, that the threat was the result of an accident 

and was not the voluntary act of conduct of the defendant, you will acquit the 

defendant and say by your verdict ‘Not Guilty.’
17

Appellant contends that the trial court agreed that voluntary conduct was the law that applied to the 

case but declined to incorporate voluntary conduct into the application paragraph, which was error. 

Appellant argues that because the record is not clear as to who fired first, that “[i]t is possible 

Appellant returned fire as an involuntary reflex to being fired upon.”

Appellate courts undertake a two-step process when reviewing charge errors. First, the 

court must determine whether error exists in the charge, and second, the court must determine 

whether sufficient harm resulted from the error such to require reversal. Abdnor v. State, 871 

S.W.2d 726, 731-32 (Tex.Crim.App. 1994).

The record does not reflect that Appellant objected to the jury charge,10 and therefore

failed to preserve error. Because of this failure, Appellant would have to show he suffered 

egregious harm. Abdnor, 871 S.W.2d at 732, citing Almanza v. State, 686 S.W.2d 157, 171 

(Tex.Crim.App. 1984).

A person “commits an offense only if he voluntarily engages in conduct.” TEX.PENAL 

CODE ANN. § 6.01(a). “Voluntariness,” as used in Section 6.01(a):

[R]efers only to one’s own physical body movements. If those physical movements 

are the nonvolitional result of someone else’s act, are set in motion by some 

independent non-human force, are caused by a physical reflex or convulsion, or are 

the product of unconsciousness, hypnosis or other nonvolitional impetus, that 

movement is not voluntary.

Rogers v. State, 105 S.W.3d 630, 638 (Tex.Crim.App. 2003).

The Rogers court notes that both the Model Penal Code and the Practice Commentary to 

 

10 Appellant argues that he objected to the charge, however, the record does not show any objection. Appellant’s 

counsel read a proposed charge to the trial judge and the judge responded “[a]s to your request on voluntary conduct 

charge, the Court has included the language, without the application paragraph.” No objection to the charge was 

made at that time. The next day, when the charge was read in its entirety to the jury, Appellant did not object. 

Therefore, Appellant has failed to preserve error. TEX.R.APP.P. 33(1). See Irizarry v. State, 916 S.W. 2d 612, 

614-15 (Tex.App.--San Antonio 1996, pet. ref’d).
18

the 1974 Texas Penal Code focused that a “voluntary act” does not necessarily require the ultimate 

act (e.g., pulling a trigger), “but only that criminal responsibility for the harm must ‘include an act’

that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer).” Rogers, 105 

S.W. 3d at 638, citing Model Penal Code § 2.01, Comment at 217. Involuntary conduct is a

defense to prosecution. Trujillo v. State, 227 S.W.3d 164, 169 (Tex.App.--Houston [1st Dist.] 

2006, pet. ref’d). To be entitled to a charge on the issue of voluntariness, “there must be evidence 

of an independent event, such as the conduct of a third party, that could have precipitated the 

incident.” Rhodes v. State, 997 S.W.2d 692, 694 (Tex.App.--Texarkana 1999, pet. ref’d).

We have found no evidence in the record, and Appellant has failed to direct us to any, 

which suggests that his actions were somehow nonvolitional, the result of reflex, convulsion, or 

some other impetus. The record reflects that Appellant raised his arm, pointed a firearm at 

uniformed police officers, and fired it. The record establishes that Appellant’s firearm required 

more than ten pounds of pressure to pull the trigger. No evidence was introduced to suggest that 

Appellant’s actions were anything other than “voluntary.” See e.g., Rogers, 105 S.W.3d at 

638-39; Gokey v. State, 314 S.W.3d 63, 68-9 (Tex.App.--San Antonio 2010, pet. ref’d, untimely 

filed)(finding that defendant acted “voluntarily” while swinging knife at deputies and where no 

evidence was introduced that he did not act voluntarily). “In the absence of evidence that an 

appellant’s conduct was involuntary, such conduct is voluntary as a matter of law, and no jury 

instruction is required.” Rhodes, 997 S.W.2d at 695, citing Moss v. State, 850 S.W.2d 788, 795

(Tex.App.--Houston [14th Dist.] 1993, pet. ref’d). Because no evidence was introduced showing 

that Appellant’s conduct was involuntary, his conduct is voluntary as a matter of law and therefore, 

no jury instruction was required. Further, Appellant has failed to show any harm given the 
19

inclusion of Appellant voluntary conduct instruction. Appellant’s ninth issue is overruled.

Improper Jury Argument

Appellant’s tenth issue is that the prosecutor engaged in improper jury argument during the 

punishment trial. Appellant acknowledges that there was no objection made at trial to the 

prosecutor’s statement. A defendant’s failure to object to a jury argument forfeits his right to 

complaint about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 

1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997); see also Threadgill v. 

State, 146 S.W.3d 654, 670 (Tex.Crim.App. 2004)(reaffirming Cockrell).

Trial courts have a great deal of discretion to control the scope of closing arguments. 

Lemos v. State, 130 S.W.3d 888, 892 (Tex.App.--El Paso 2004, no pet.). Counsel may draw 

reasonable, fair, and legitimate inferences from the evidence presented at trial. See Allridge v. 

State, 762 S.W.2d 146, 156 (Tex.Crim.App. 1988). The applicable legal standard of review is 

whether, in light of the record as a whole, there is a reasonable possibility the improper argument 

might have contributed to Appellant’s conviction. See Wilson v. State, 938 S.W.2d 57, 61 

(Tex.Crim.App. 1996).

In determining whether the State engaged in improper jury argument, we consider the 

entire argument presented, not isolated sentences. Rodriguez v. State, 90 S.W.3d 340, 364 

(Tex.App.--El Paso 2001, pet. ref’d). Generally, proper jury argument consists of: (1) 

summation of evidence; (2) reasonable deductions from the evidence; (3) answer to argument of 

opposing counsel; and (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 

(Tex.Crim.App. 2000); Morales v. State, 11 S.W.3d 460, 463 (Tex.App.--El Paso 2000, pet. ref’d).

Under most circumstances, improper jury argument may be cured by an instruction to 
20

disregard, unless “in light of the record as a whole it was extreme or manifestly improper, violative 

of a mandatory statute, or injected new facts harmful to the accused.” Hawkins v. State, 135 

S.W.3d 72, 75 (Tex.Crim.App. 2004), citing Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 

1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993).

To preserve error regarding improper jury argument, a party is required to continue to 

object each time improper jury argument is offered. Dickerson v. State, 866 S.W.2d 696, 699 

(Tex.App.--Houston [1st Dist.] 1993, pet. ref’d). A defendant ordinarily should: (1) 

contemporaneously object to the statement; (2) request an instruction that the jury disregard the 

statement if the objection is sustained; and (3) move for a mistrial if the instruction is granted. 

Cooks, 844 S.W.2d at 727-28. However, while this sequence is not essential to preserve 

complaints for appellate review, the essential requirement is a timely, specific request that the trial 

court refuses. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). “[A]n event that could 

have been prevented by timely objection or cured by instruction to the jury will not lead an 

appellate court to reverse a judgment on an appeal by the party who did not request there lesser

remedies in the trial court.” Young, 137 S.W.3d at 70. Moreover, the appellate complaint 

challenging the motion for mistrial must comport with the motion made at trial. Braxton v. State, 

909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The mistrial motion must be timely, that is it must 

be made as soon as the grounds for the mistrial become apparent. Griggs v. State, 213 S.W.3d 

923, 927 (Tex.Crim.App. 2007).

Here counsel did not lodge a single objection to the complained arguments. Appellant did 

not request an instruction from the trial court that the jury be ordered to disregard the prosecutor’s 

statements, nor did he make a motion for mistrial. Under these circumstances, we cannot say that 
21

Appellant preserved these complaints sufficient for our review.

However, had we determined otherwise, we would be obligated to decide whether 

Appellant’s substantial rights were harmed by the arguments made by the State. See Casey v. 

State, 215 S.W.3d 870, 885 (Tex.Crim.App. 2007). A substantial right is affected when the error 

had substantial and injurious effect or influence on the jury’s verdict. Id.

As noted above, where closing argument exceeds the permissible bounds of approved 

areas, it will not constitute reversible error unless, in light of the record as a whole, the argument is 

extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to 

the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.

2000), citing Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App. 1980). “The remarks must 

have been a willful and calculated effort on the part of the State to deprive appellant of a fair and 

impartial trial.” Wesbrook, 29 S.W.3d at 115, citing Cantu v. State, 939 S.W.2d 627, 633 

(Tex.Crim.App.), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).

When analyzing any harm that may have been caused by an improper jury argument, we 

examine the following factors: (1) the severity of the misconduct (the magnitude of the 

prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the 

efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the 

misconduct (the strength of the evidence supporting the conviction). Ramon v. State, 159 S.W.3d 

927, 929 (Tex.Crim.App. 2004), citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 

1998)(op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

We conclude, after considering the entire argument presented, as well as the record as a 

whole, that the remarks made by the prosecutor were a proper plea to law enforcement. 
22

Essentially, the prosecutor’s remarks were not a willful and calculated effort to deprive Appellant 

of a fair and impartial trial.

No cautionary instruction, or instruction to disregard was given to the jury because 

Appellant never made any such request. Finally, the evidence to support the jury’s verdict was 

substantial, even had the comments never been made. Appellant’s tenth issue is overruled. 

Sufficiency of the Evidence

In his final issue, Appellant argues that the evidence is legally insufficient to support a 

conviction.

A court reviewing whether the evidence is sufficient to support a conviction is guided by 

the “legal-sufficiency standard,” set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

2789, 61 L.Ed.2d 560 (1979); see Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 

2010)(upholding legal-sufficiency test as appropriate method for review of sufficiency of evidence 

to support verdict. The Criminal Court of Appeals characterized the legal-sufficiency test as 

follows: “Considering all of the evidence in the light most favorable to the verdict, was a jury 

rationally justified in finding guilt beyond a reasonable doubt.” Brooks, 323 S.W.3d at 899, 902,

citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2781. This standard incorporates the recognition that 

“the jury is the sole judge of a witness’s credibility, and the weight to be given the testimony.” 

Brooks, 323 S.W.3d at 902, citing Lancon v. State, 253 S.W.2d 699, 707 (Tex.Crim.App. 2008). 

When performing a legal sufficiency review, a reviewing court does not sit as a “thirteenth juror,” 

re-evaluating the weight and credibility of the evidence and thus, substituting our judgment for that 

of the fact finder. Brown v. State, 2004 WL 1944722, at *4 (Tex.App.--Fort Worth Aug. 30, 

2004, no pet.)(mem. op., not designated for publication), citing Dewberry, 4 S.W.3d at 740.
23

Aggravated assault by threat is a conduct-oriented offense as opposed to result oriented. 

Landrian v. State, 268 S.W.3d 532, 540 (Tex.Crim.App. 2008); Dolkart v. State, 197 S.W.3d 887, 

893 (Tex.App.--Dallas 2006, pet. ref’d). A person acts “intentionally” “with respect to the nature 

of his conduct . . . when it is his conscious objective or desire to engage in the conduct . . . .” 

TEX.PENAL CODE ANN. § 6.03(a). A person acts “knowingly” “with respect to the nature of 

his conduct or to circumstances surrounding his conduct when he is aware of the nature of his 

conduct or that the circumstances exist.” Id. at § 6.03(b). Intent or knowledge may be inferred 

from acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002), quoting

Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). An actor is presumed to have 

known the person assaulted was a public servant if the person was wearing a distinctive uniform or 

badge indicating the person’s employment as a public servant. TEX.PENAL CODE ANN. 

§ 22.02(c). See Sherber v. State, 2011 WL 4389614, at *4 (Tex.App.--Beaumont Sept. 21, 2011, 

no pet.)(mem. op., not designated for publication)(citing same in performing legal-sufficiency 

analysis where defendant was charged with aggravated assault against a public servant).

Appellant contends that the evidence shows that he “acted with a ‘gross deviation from the 

standard of care that an ordinary person would exercise under all the circumstances as viewed from 

the actor’s standpoint,’”

11 and that his actions in “[p]ulling a gun from his waistband and then 

firing his weapon while two police officers were trying to arrest him was reckless conduct.” The 

jury heard testimony that both officers were in full uniform and identified themselves as Fort 

Worth police officers. The jury also heard testimony that Officer McGinty yelled “gun” upon 

noticing a pistol in Appellant’s waistband, that Appellant drew the gun from his waistband and 

 

11 TEX.PENAL CODE ANN. § 6.03(c).
24

pointed it at the officers, and that Appellant fired at the officers. Both officers fired at Appellant.

Officer Kelm testified that he saw the muzzle blast and felt the heat from the blast on the left side 

of his face. As a trier of fact, the jury could reasonably conclude that Appellant intentionally or 

knowingly threatened Officer Kelm with imminent bodily injury and could infer that Appellant, 

seeing both officers in uniform, knew that Officer Kelm was a public servant. See Gokey v. State, 

314 S.W.3d 63, 67 (Tex.App.--San Antonio 2010, pet. ref’d, untimely filed)(Section 22.2(c) 

applied where officer wore a badge and uniform and drove a marked patrol car, but even absent the 

presumption, the jury could infer that if Gokey and the officer faced each other, Gokey knew the 

officer was a public servant); see also Anderson v. State, 11 S.W.3d 369, 375-76 

(Tex.App.--Houston [1st Dist.] 2000, pet. ref’d)(“Aiming a deadly weapon at a supposed victim is 

sufficient evidence of a threat to sustain an aggravated assault conviction.”).

Viewing the evidence in the light most favorable to the verdict, the jury was rationally 

justified in determining that Appellant committed aggravated assault against a public servant

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Hooper v. State, 214 

S.W.3d 9, 13 (Tex.Crim.App. 2007); TEX.PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 

(b)(2)(B). We overrule Appellant’s final issue.

CONCLUSION

Having overruled each of Appellant’s issues, we affirm the trial court=s judgment.

April 25, 2012

CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)