Michael REED, Appellant, v. The STATE of Texas, Appellee, 214 S.W.3d 626

OPINION BILL VANCE, Justice. Appellant, Michael Reed, was convicted of misdemeanor assault and deadly conduct. He was sentenced to one year of confinement in jail, probated for two years, and a $500 fine for the misdemeanor assault charge and four years in prison, probated for eight years, and a $2,000 fine for the deadly conduct charge. Reed raises two issues on appeal. Background On December 5, 2002 before Michael left for work as a security guard, he and his twin brother, Christopher Reed, had a dispute concerning Christopher’s installing a deadbolt on a bedroom door at the home they shared.

When he returned home from work later in the evening, Michael found Christopher installing the deadbolt and two of his friends, Jonathan Shenkir and Charlie Brown, playing computer games. Michael entered Christopher’s room still wearing his gun belt and pistol, an expandable baton, and an “asp.” After a brief conversation, Michael forced Christopher to the ground with his baton. The brothers wrestled on the floor, and Michael then produced the “asp” and applied it to Christopher’s rib cage. Christopher found a pool cue and threatened his brother with it.

In response, Michael pulled out his firearm and pointed it at him for approximately twenty seconds before putting it back in its holster. The brothers continued wrestling, and Christopher forced Michael out of his room. Jonathan followed them into the hallway and attempted to get Michael’s weapons away from him. During the struggle, Michael fired the gun into the hallway wall. Legal Sufficiency In his first issue, Reed complains that the evidence is legally insufficient to establish deadly conduct as alleged in the indictment.

When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999).

We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

In the context of Reed’s charging instrument, a person commits the offense of deadly conduct by knowingly discharging a firearm at or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied. Tex. Pen.Code Ann. § 22.05(b)(2) (Vernon 2003).

Reed specifically complains that the evidence is insufficient to show that he discharged a firearm “at or in the direction of a habitation.” He argues that this language was intended to apply to individuals discharging a firearm “from outside of the residence with an aim directly toward the habitation or in its direction.” The Penal Code does not define the term “at or in the direction of.” Words not specifically defined by the legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance. Vernon v.

State, 841 S.W.2d 407, 409 (Tex.Crim.App.1992). Specific to challenges to the sufficiency of the evidence, reviewing courts cannot use

definitions of common words that are more restrictive than, or in any ways different than, the possible ordinary meaning that the jury was authorized to give such words. See id. Further, in addition to construing words and phrases of a statute according to the rules of grammar and common usage, reviewing courts must read the statute in context. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). We agree with Reed that, considering common usage of the term and reading it in context, “discharging a firearm at or in the direction of a habitation” assumes that the actor is outside the habitation.

The testimony presented at trial indicates that Reed was inside his home at the time he discharged the firearm. Accordingly, we find that a rational trier of fact could not have found beyond a reasonable doubt the essential elements of deadly conduct. We sustain Reed’s first issue.

Modification of Judgment In his second issue, Reed complains that the written judgment of conviction as to count one of the indictment, misdemean- or assault, incorrectly assesses punishment of one year in the “Institutional Division-TDCJ probated for two years.” The judgment also recites an imposed sentence of “state jail imprisonment.” The trial court pronounced the sentence as “confinement in the Brazos County jail for a period of one year ... probated for two.” The offense of assault under Texas Penal Code

section 22.01(a)(1) is a Class A misdemeanor with a maximum punishment of one year in jail and a $4,000 fine. See Tex. Pen.Code Ann. § 22.01(a)(1) and (b) (Vernon Supp.2006); Tex. Pen.Code Ann. § 12.21 (Vernon 2003). The State agrees and the record reflects that the written judgment is incorrect. The State joins Reed in requesting that this court modify the judgment to reflect confinement in the Brazos County jail for a period of one year, probated for two years. See Tex.R.App. P. 43.2(b). We sustain Reed’s second issue, modify the judgment as requested, and affirm the judgment as to count one.

Conclusion Having sustained Reed’s two issues, we reverse the trial court’s judgment and render a judgment of acquittal on the offense of deadly conduct and modify and affirm the judgment as to the offense of misdemeanor assault. Chief Justice GRAY dissenting. . It appears the purpose of adding this offense to the statute was to increase the penalties for drive-by shootings.