John Arthur Stephens, Jr. v. the State of Texas

NO. 12-23-00306-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN ARTHUR STEPHENS, JR., § APPEAL FROM THE 3RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
John Arthur Stephens, Jr. appeals his convictions for two counts of aggravated assault
with a deadly weapon. In one issue, he challenges the sufficiency of the evidence to support the
convictions. We affirm.

BACKGROUND
On June 23, 2020, at approximately 10:00 a.m., Antonio Gante-Martinez was on a break
during his work shift at a cold storage facility located near Oak Street and Texas Street in
Palestine, Texas. He left the facility in his truck, purchased a box of doughnuts, and returned to
the facility. As he left his truck with the doughnut box, an individual carrying a pistol
approached him, pointed the pistol at him, and instructed him to put his hands up. Gante-
Martinez complied, after which the individual ordered him to go inside. Once inside, Gante-
Martinez’s employers called the police and reported the incident.
That same morning, Zachary Dawson left his place of employment to make a bank
deposit. As he approached a set of railroad tracks, he witnessed Appellant pointing a gun at a
Hispanic man near a black truck. Dawson initiated a 911 call to report the situation, but during
the call, Appellant started walking towards him. Appellant screamed and pointed the gun at
Dawson. Dawson testified that he was afraid for his life at that moment because, at the time, he
did not know that the gun was not a real firearm.
Sergeant Payton Brandenburger, then of the Palestine Police Department, was the first
officer to arrive at the scene. He witnessed Appellant holding what Brandenburger believed to
be a black handgun, and saw Appellant point the gun directly at another individual.
Brandenburger exited his vehicle, pointed his patrol rifle at Appellant, and ordered him to drop
the gun. After Appellant complied, law enforcement arrested him and transported him to jail.
Officer Tanner Grantham, also formerly of the Palestine Police Department, likewise responded
to the scene and assisted with taking Appellant into custody. Grantham recovered the gun,
which turned out to be a BB gun, from the ground where Appellant dropped it pursuant to
Brandenburger’s instruction, and placed it into an evidence box. Appellant was charged by
indictment with two counts of aggravated assault with a deadly weapon and one count of
obstruction or retaliation. He pleaded “not guilty,” and this matter proceeded to a jury trial.
At trial, Brandenburger identified the BB gun in the evidence box (admitted as State’s
Exhibit 4) as the one that he witnessed Appellant brandish and subsequently drop. He testified
that when he first encountered Appellant, he could not tell that the BB gun was not an actual
firearm. However, he affirmed that a BB gun is still capable of causing serious bodily injury, and
therefore a deadly weapon. Similarly, during his trial testimony, Grantham identified the BB
gun in the evidence box as the one that he recovered from the ground after Appellant dropped it.
Grantham also testified at trial that he could not tell that the BB gun was not a firearm until he
“interacted” with it and averred that a BB gun is capable of causing serious bodily injury.
The jury found Appellant “guilty” of both counts of aggravated assault, and “guilty” of
obstruction or retaliation. Appellant elected to have the court assess punishment and after
hearing evidence and considering the applicable enhancements, the trial court assessed
punishment of ten years’ imprisonment for each of the aggravated assault offenses and five

2
years’ imprisonment for the obstruction or retaliation offense. 1 The trial court sentenced
Appellant accordingly and this appeal followed.

LEGAL SUFFICIENCY OF EVIDENCE

In his sole issue, Appellant contends that the evidence is insufficient to support a finding
beyond a reasonable doubt that he (1) inflicted “actual violence” on anyone, and (2) used a
deadly weapon in committing an assault.
Standard of Review

The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. 2 443 U.S. 307,
315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the
Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See
Jackson, 443 U.S. at 315–16, 99 S. Ct at 2786–87; see also Escobedo v. State, 6 S.W.3d 1, 6
(Tex. App.–San Antonio 1999, pet. ref’d). In reviewing the legal sufficiency of the evidence, we
consider all the evidence in the light most favorable to the verdict and determine whether any
rational factfinder could have found the essential elements of the crime beyond a reasonable
doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State,
445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks, 323 S.W.3d at 898–99. The trier of fact
is the sole judge of the credibility of the witnesses and can believe all, some, or none of the
testimony presented, and a reviewing court affords almost complete deference to a jury’s
decision when that decision is based upon an evaluation of credibility. Chambers v. State, 805

1
Appellant raises no issues regarding the trial court’s judgment for the obstruction or retaliation offense.
2
Appellant appears to request that we perform a factual sufficiency review and re-weigh the evidence
presented at trial. However, this Court follows precedent set by the Texas Court of Criminal Appeals’ opinion in
Brooks v. State, in which the court determined that a legal-sufficiency standard of review is indistinguishable from a
factual-sufficiency standard of review. 323 S.W.3d 893, 901 (Tex. Crim. App. 2010). As an intermediate appellate
court, we are not at liberty to ignore binding precedent. Matamoros v. State, 500 S.W.3d 58, 62 n.1 (Tex. App.—
Corpus Christi 2016, no pet.) (citing Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.—Houston [1st Dist.]
1985, no pet.)). Factual sufficiency review is only available when a jury rejects an affirmative defense. Matlock v.
State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). Upon reviewing the record, we find no evidence that
Appellant raised an affirmative defense or that the jury rejected such a defense. Therefore, we decline to complete a
factual sufficiency review in this case. See Brooks, 323 S.W.3d at 912.

3
S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We defer to the trier of fact’s resolution of any conflicting inferences raised
in the evidence and presume that the trier of fact resolved such conflicts in favor of the verdict.
Jackson, 443 U.S. at 326, 99 S.Ct. 2781; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007).
The sufficiency of the evidence is measured against the offense(s) as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge “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 particular offense for which the
defendant is tried.” Id.
Applicable Law
A person commits an assault if he intentionally or knowingly threatens another with
imminent bodily injury.3 TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2023). A person commits
aggravated assault with a deadly weapon if he uses or exhibits a deadly weapon during the
commission of an assault. Id. § 22.02(a)(2) (West 2023). “Deadly weapon” includes anything
that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Id. § 1.07(a)(17)(B) (West 2023). “Serious bodily injury” means bodily injury that creates a
substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46).
Analysis

Appellant does not dispute on appeal that he “used or exhibited” a BB gun and does not
challenge the sufficiency of the evidence supporting any other element of the charged offense.
Instead, Appellant’s analysis regarding the jury’s deadly weapon finding is one sentence long:
“[A] bb gun or air gun is not a firearm making the state’s burden to prove the weapon used is a
deadly weapon beyond a reasonable doubt which was not done in the instant case.” We construe

3
Appellant contends that the State was required to prove, beyond a reasonable doubt, that Appellant
inflicted “actual violence” during the commission of the offense. This assertion is contrary to the Texas Penal Code,
which expressly provides that a person may commit an assault solely by threatening another person with imminent
bodily injury, with no requirement that the offender actually inflict bodily injury. TEX. PENAL CODE ANN. §
22.01(a)(2) (West 2023).

4
this argument as a challenge to the sufficiency of the evidence supporting the jury’s finding that
the BB gun was a deadly weapon.
Although Appellant is correct that a BB gun is not a “firearm” and is therefore not per se
a deadly weapon under the Penal Code, the State may prove that a BB gun is a deadly weapon by
presenting evidence concerning its capabilities or use. See Adame v. State, 69 S.W.3d 581, 582
(Tex. Crim. App. 2002); Coleman v. State, No. 07-13-00253-CR, 2014 WL 2433681, at *3 (Tex.
App.—Amarillo May 27, 2014, no pet.) (mem. op., not designated for publication) (“The State
may prove that a BB or pellet gun is a deadly weapon through several means, including lay or
expert testimony that the weapon is capable of causing serious bodily injury.”).
In this case, both Sergeant Brandenburger and Officer Grantham testified that a BB gun
is capable of causing serious bodily injury. Moreover, the BB gun itself (which was in evidence
and available to the jury) bore an imprint which read, “Warning: Misuse may cause serious
injury[,] particularly to the eye.” Courts have considered warning labels of this nature to be
relevant when determining whether legally sufficient evidence supported a jury finding that a BB
gun, pellet gun, or airsoft gun was a deadly weapon. See Williams v. State, 240 S.W.3d 293, 299
(Tex. App.—Austin 2007, pet. ref’d) (op. on reh’g) (observing that jury was aware of warning
label for CO2-powered BB pistol that identified risk of serious injury or death); Nealy v. State,
No. 01-18-00334-CR, 2019 WL 6869337, at *4 (Tex. App.—Houston [14th Dist.] Dec. 17,
2019, no pet.) (mem. op., not designated for publication) (“The [air] pistol’s capability to cause
serious bodily injury is further supported by the warning on its side which reads ‘warning-- not a
toy. Wear eye protection to prevent serious injury to eye.’”). With testimony, such as in the
present case, that a “BB gun is capable of causing serious bodily injury, it is reasonable for a jury
to make a deadly weapon finding.” Adame, 69 S.W.3d at 582.
Accordingly, viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational factfinder could have found beyond a reasonable doubt that appellant
used or exhibited a deadly weapon, i.e., the BB gun, during the commission of the assault.
Because the evidence is legally sufficient to support Appellant’s conviction, we overrule his sole
issue.

5
DISPOSITION

Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

JAMES T. WORTHEN
Chief Justice

Opinion delivered May 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

6
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 31, 2024

NO. 12-23-00306-CR

JOHN ARTHUR STEPHENS, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-20-34825)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.