Anthony Gerald Danko A/K/A Anthony Danko v. State

Citation: Not availableDocket: 02-09-00386-CR

Court: Court of Appeals of Texas; January 19, 2011; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Anthony Gerald Danko appeals his convictions for three counts of aggravated assault on a public servant with a deadly weapon. He contends that the evidence is insufficient to support his conviction and claims improper prosecutorial argument during closing statements. The Court of Appeals affirms the convictions.

The case arose during a divorce when Danko sent a concerning text to his sister, suggesting suicidal thoughts. She, fearing for his safety, called 911. Firefighters and police arrived at his home, where they were informed by his sister that he owned a firearm. After attempts to contact him failed, the police received permission to forcibly enter the residence.

Upon breaking in, Danko emerged holding a glass in one hand and a revolver in the other. Despite police commands to drop the gun, he raised it towards the officers. Officer Thomas, fearing for their safety, fired four shots, hitting Danko in the hand and chest; he survived the encounter. Investigations confirmed that Danko's gun was fully loaded and that a bullet from Officer Thomas struck Danko's gun directly.

Danko was charged with three counts of aggravated assault, one for each police officer involved. The jury convicted him on all counts, sentencing him to five years for the first count and ten years each for the second and third counts, with the latter two sentences suspended for community supervision.

Danko contends that the evidence supporting his conviction is factually insufficient, but his appellate counsel conceded that the precedent set in *Brooks v. State* negates this argument, leading to the overruling of his first issue. In his third issue, Danko challenges the legal sufficiency of the evidence for his conviction of aggravated assault on Officer Argueta, asserting that there is no evidence of the officer perceiving a threat. 

The standard for reviewing legal sufficiency requires viewing evidence favorably for the prosecution to determine if a rational jury could find the essential elements of the crime beyond a reasonable doubt. The factfinder is responsible for resolving testimonial conflicts, weighing evidence, and making reasonable inferences, which the reviewing court must respect without re-evaluating credibility. 

For aggravated assault on a public servant, the law stipulates that an individual commits the offense if they intentionally threaten a known public servant with imminent bodily injury while the servant is lawfully performing their duties and using a deadly weapon. The mere display of a deadly weapon constitutes a threat of imminent harm. 

In this case, while Officers Riggall and Thomas testified, Officer Argueta was unavailable, leading Danko to argue that there is insufficient evidence to prove that Argueta perceived any threat from him, thus questioning the basis for his conviction.

Officers Riggall, Thomas, and Argueta, along with four firefighters, were positioned near Danko's front door when Terrell forcibly entered. Danko was inside, facing the door, and pointed a gun at the officers and firefighters as the door opened. Officer Thomas noted that Riggall and Argueta formed a semicircle around two firefighters when the door was breached. Both Riggall and Thomas felt threatened by Danko's actions, with Lieutenant Keller expressing immediate concern that someone might be shot. Terrell confirmed that Danko aimed his gun at him and the nearby officers, indicating a shared fear of imminent gunfire. Officer Riggall recalled Officer Argueta's demand for Danko to drop the gun, establishing that Argueta was aware of the weapon before Riggall. The testimonies collectively supported the conclusion that Danko's display of the firearm constituted a credible threat of bodily harm. Citing relevant case law, the court determined that the evidence was sufficient to uphold a conviction for aggravated assault against Officer Argueta, given that firearms are classified as deadly weapons. The court overruled Danko's appeal regarding this issue.

In a separate concern, Danko challenged the State's closing arguments, claiming they improperly encouraged the jury to convict him of aggravated assault to secure a harsher sentence compared to a potential conviction for the lesser charge of deadly conduct. The trial court had instructed the jury on both charges. During closing arguments, the prosecutor described the aggravated assault counts and referenced a lesser offense of deadly conduct, prompting objections from the defense, which were partially sustained. Despite the defense's objections and requests for a mistrial, the court denied the latter.

The second prosecutor's closing argument suggested that Lieutenant Keller illustrated the mindset of the seven individuals involved, asserting that the charge of deadly conduct is less serious than aggravated assault. Defense counsel objected, citing a previous ruling against similar arguments from the first prosecutor, but the trial court overruled the objection. 

The legal standard for permissible jury arguments includes summarizing evidence, reasonable deductions from evidence, responding to opposing counsel's arguments, or making a plea for law enforcement. When a trial court sustains an objection but denies a motion for mistrial, the key issue is whether the trial court abused its discretion. A mistrial is warranted only in extreme cases where the improper argument is deemed incurable.

Danko argues that a prior case, McClure v. State, is relevant, as it involved improper arguments urging conviction based on punishment rather than facts. However, the current case differs; the prosecutor’s comments about the lesser offense of deadly conduct did not encourage a conviction based on punishment. Instead, they were akin to arguments in Hart v. State, where discussing the classification of a lesser offense was deemed proper. The first prosecutor clarified that the jury must first determine if aggravated assault on a public servant was proven before considering deadly conduct, urging them to interpret the charge in full and apply the law to the facts.

The second prosecutor expanded on the first prosecutor's argument, asserting that the facts indicated Danko had committed aggravated assault. The prosecutors refrained from discussing the penalties associated with the offenses, the classification of aggravated assault, or the potential for heavier sentences related to specific convictions. The excerpt references case law, noting that commentary distinguishing offenses without mentioning punishment ranges is permissible, as seen in *Matini v. State* and *McCullen v. State*. It emphasizes that the prosecutors' arguments did not suggest that the jury should convict Danko based on the differences in potential sentences. Consequently, the court concluded that the prosecutors’ comments were appropriate and upheld the trial court's judgment, affirming all of Danko's issues. The decision was delivered by Justice Sue Walker, with Justices Gardner and Gabriel on the panel. The ruling is not designated for publication.