Justin Laroy Fagan v. State
2012 Tex. App. LEXIS 1525
| Tex. App. | 2012Background
- Fagan was convicted of unlawful possession of a firearm by a felon and aggravated assault with a deadly weapon.
- Aggravated assault conviction was affirmed; unlawful possession conviction was reversed and acquitted.
- Indictment for unlawful possession relied on section 46.04(a)(1) (possession within five years of release from confinement).
- State failed to prove the date of Fagan’s release from confinement or supervision for the prior felony.
- Trial court and court majority analyzed the adequacy of evidence under a hypothetically correct jury charge and standard of review.
- Fagan had a prior burglary conviction in 2004; the charged offense occurred around August 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did evidence support aggravated assault with a firearm? | Fagan argues no threat with imminent bodily injury evidenced. | State contends Erica reasonably feared due to prior threat and gun display. | Yes; evidence supports aggravated assault with a deadly weapon. |
| Was the unlawful possession by a felon conviction legally sufficient? | State failed to prove date of release from confinement, a necessary element. | State contends statute allows proof through other ways; indictment limited to (a)(1). | No; insufficient evidence; acquitted on (a)(1) due to missing release date evidence. |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (rigorous standard for legal sufficiency review)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency standard: rational jury could convict beyond reasonable doubt)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge governs sufficiency)
- Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011) (when multiple methods exist, use the method pled in indictment)
- Macias v. State, 136 S.W.3d 702 (Tex. Crim. App. 2004) (two ways to commit unlawful firearm possession; review limited to pleaded method)
- Tapps v. State, 257 S.W.3d 438 (Tex. App.—Austin 2008) (date of release notion in §46.04 analyzed; five-year rule context)
- Nemecek v. State, 621 S.W.2d 404 (Tex. Crim. App. [Panel Op.] 1980) (threatened-by-threat concept for aggravated assault)
- Cantu v. State, 953 S.W.2d 772 (Tex. App.—Corpus Christi 1997) (aggravated assault by pointing loaded gun and threats)
- Preston v. State, 675 S.W.2d 598 (Tex. App.—Dallas 1984) (threats and use of firearm support aggravated assault)