Opinion
NO. 14-18-00447-CR
09-01-2020
ADRIAN JAMES BENNETT, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court Grimes County, Texas
Trial Court Cause No. 18409 (Counts I-IV)
MEMORANDUM OPINION
Adrian James Bennett, Jr. appeals his conviction for aggravated assault of a public servant. He contends the trial court erred by (1) denying his motion for directed verdict because there is insufficient evidence that Appellant's fists were used as a deadly weapon; (2) denying his motion for directed verdict because there is insufficient evidence that Appellant used a hammer as a deadly weapon; and (3) "charging the jury on the law of parties because there is no evidence that Appellant and his brother acted as parties." We affirm.
BACKGROUND
In the afternoon of September 25, 2016, Officer Garcia of the Navasota Police Department was dispatched to a residence in Navasota for an alleged assault. When Officer Garcia arrived, he saw Appellant and Complainant, standing outside the residence on the porch. Appellant had recently moved into the residence with his mother after his relationship with Complainant ended.
Officer Garcia asked Complainant to follow him to his patrol car and tell him what had happened. Complainant explained that when she came to the residence to pick up the three children she shares with Appellant, he slapped her on the face. While Complainant talked to Officer Garcia, Appellant was yelling and Officer Garcia decided to call for backup. Appellant walked towards Officer Garcia and Complainant. Officer Garcia asked Appellant several times to step back and threatened to handcuff Appellant if he did not comply; Appellant responded that Officer Garcia could not handcuff him. When Appellant refused to move, Officer Garcia decided to handcuff Appellant and walked towards him. Appellant then started walking away and told Officer Garcia several times, "don't touch me." Officer Garcia instructed Appellant to turn around so he could handcuff him, but Appellant did not comply and continued to walk into the residence.
Officer Garcia followed Appellant into the residence because he did not know if Appellant had a weapon in the house and feared for his safety. Upon entering the house, Appellant yelled numerous times "you better get him [Officer Garcia]". As Officer Garcia reached for Appellant's left wrist to handcuff him, Appellant's brother, Jamarcus Hester, "began yelling at [Officer Garcia] that [he] was not going to place his brother in handcuffs" and pushed Officer Garcia from behind into Appellant; this caused both men to hit the sliding glass door, bounce off the door, and fall backwards. Officer Garcia landed on his back with his back against the wall. Appellant and Hester got on top of Officer Garcia, pinned his legs underneath them, and began punching Officer Garcia in the face and head with their fists.
Appellant has not challenged the constitutionality of the entrance on appeal.
As Appellant and Hester continuously hit Officer Garcia, he was afraid he would lose consciousness and the two men would use his service weapon against him, so he deployed his taser on Hester to get at least one of the men off of him. The taser had no effect on Hester and the men continued to punch Officer Garcia. At some point the taser "got knocked out of [Officer Garcia's] hands." Officer Garcia felt helpless and feared for his life. He decided to shoot one of the men and pointed his weapon at Hester. Appellant and Hester grabbed the weapon, got a hold of the slide, and slid it back so Officer Garcia could not discharge it. Officer Garcia continued to struggle with the two men over his weapon. He noticed that the magazine was ejected out of the weapon, so he pulled the weapon to the floor to insert a new magazine.
Shortly thereafter, Navasota Police Department Officer Failla arrived at the house. Hester got up from Officer Garcia and walked away. Officer Garcia assumed Hester got up to see Officer Failla. Officer Garcia instructed Officer Failla to handcuff Hester, but Hester attacked Officer Failla and a struggle ensued. During that time, Appellant stayed on top of Officer Garcia and continued to fight Officer Garcia for his service weapon. When Appellant saw that Officer Garcia managed to put a new magazine in his weapon, Appellant got up and walked into the laundry room.
Officer Garcia followed Appellant and tried to push the laundry room door open; Officer Garcia knew Appellant was behind the door. When Officer Garcia pushed the door open, he saw Appellant's raised arm holding a hammer in the air. Officer Garcia shut the door to not get hit with the hammer and yelled at Appellant to open the door and put the hammer down. In response, Appellant yelled at Officer Garcia to put his weapon down. Officer Garcia again pushed the door open and Appellant was still holding a hammer in his raised hand. Officer Garcia was frightened Appellant would hit him with the hammer. He pushed the door a third time, the door broke in half, Appellant came out of the room and ran through the kitchen. Officer Garcia managed to "drive him to the ground" and handcuff Appellant with the help of another police officer who had arrived at the scene.
Officer Garcia stepped outside "to take an actual breather" and "regain composure" before returning to the house to see if the other police officers who had arrived at the scene needed assistance. Even after both men were handcuffed, Appellant continued to be upset with Officer Garcia and accused him of touching his mother.
When an ambulance arrived, Officer Garcia was evaluated and taken to the hospital. He had a headache and blood was flowing from his head down his face. He testified he suffered minor contusions, "had two 1-inch cuts on the top of [his] head, bruising on the back of [his] head, side of [his] head, and right side", swelling and bruising on the right side of his head. Officer Garcia testified that his injuries were very painful and "it hurt a lot" when he was getting punched with fists. He stated that the fist blows felt like getting hit with a brick and he "felt lucky to be still standing."
Appellant was charged in count I with assault family violence under Texas Penal Code section 22.01(a)(1), which was enhanced by Appellant's prior conviction for assault family violence under Texas Penal Code section 22.01(b)(2)(A). See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A). He was charged in counts II and III with aggravated assault of a public servant. See id. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B), (c). Appellant was also charged in counts IV and V with attempting to take a weapon from a peace officer. See id. § 38.14(b), (c).
After a five-day jury trial, the jury found Appellant guilty of counts I through IV as charged. The jury assessed Appellant's punishment at 10 years' confinement for count I, 60 years' confinement for counts II and III to run concurrently, and two years' confinement for count IV. Appellant filed a timely notice of appeal.
ANALYSIS
In three issues, Appellant challenges his conviction for aggravated assault of a public servant in counts II and III arguing the trial court erred by (1) denying his motion for directed verdict because there is insufficient evidence that Appellant's fists were used as a deadly weapon; (2) denying his motion for directed verdict because there is insufficient evidence that Appellant used a hammer as a deadly weapon; and (3) "charging the jury on the law of parties because there is no evidence that Appellant and his brother acted as parties." We address each issue in turn.
I. Aggravated Assault of a Public Servant
A challenge to the denial of a directed verdict is a challenge to the legal sufficiency of the evidence. See Gabriel v. State, 290 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Thus, both Appellant's first and second issues challenge the legal sufficiency of the evidence, and we address them together.
A. Standard of Review and Governing Law
When reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010). The jury is the sole judge of the credibility of witnesses and the weight to be assigned to their testimonies, and we do not usurp this role by substituting our judgment for that of the jury. Id. at 899. Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). This standard applies equally to both circumstantial and direct evidence. Id. Each fact need not point directly and independently to the appellant's guilt as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
As applicable here, to sustain a conviction for aggravated assault of a public servant, the evidence must demonstrate that: (1) the person intentionally, knowingly, or recklessly caused bodily injury to another; (2) the person used or exhibited a deadly weapon during the commission of the assault; and (3) the offense was committed against a person the actor knew was a public servant while the public servant was lawfully discharging an official duty. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B); Hooper, 214 S.W.3d at 13.
In order to prove that Appellant's weapon was deadly, the State must prove that it (1) was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (2) is capable of causing death or serious bodily injury in the manner of its use or intended use. See Tex. Pen. Code Ann. § 1.07(a)(17). To determine whether an object was a deadly weapon under the second definition, "capability" must be evaluated in light of the facts that actually existed at the time of the offense. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). Thus, whether an object qualifies as a deadly weapon depends upon the evidence presented. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). The court of criminal appeals has noted that, depending upon the evidence shown, "almost anything can be a deadly weapon." Lane v. State, 151 S.W.3d 188, 191 n.5 (Tex. Crim. App. 2004).
Factors that a jury may consider in determining whether an object is a deadly weapon under the second definition include (1) words of the accused; (2) the intended use of the weapon; (3) the size and shape of the weapon; (4) testimony by the victim that he feared death or serious bodily injury; (5) the severity of any wounds inflicted; (6) the manner in which the assailant allegedly used the object; (7) physical proximity of the parties; and (8) testimony as to the weapon's potential for causing death or serious bodily injury. Romero, 331 S.W.3d at 83; see also Thomas, 821 S.W.2d at 619; and Brown v. State, 716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986). The nature of any inflicted wounds is a factor to be considered, but wounds are not a prerequisite to a deadly weapon finding. Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim. App. [Panel Op.] 1980); Romero, 331 S.W.3d at 84. Either expert testimony or lay testimony may be independently sufficient to support a deadly weapon finding. Romero, 331 S.W.3d at 84. It is not necessary for the weapon to be introduced into evidence. Id.
B. Deadly Weapon — Fists
Appellant complains in his first issue there is insufficient evidence to support the jury's finding in count II that his fists were used as a deadly weapon. We disagree. Although a fist is not a deadly weapon per se, it "can be such in the manner used depending on the evidence shown." Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983). Texas courts have recognized that, depending on the evidence, a hand may be a deadly weapon within the meaning of Texas Penal Code section 1.07(a)(17)(B). See Lane, 151 S.W.3d at 191. The evidence in this case supports the jury's conclusion that Appellant used his fists in a manner that was capable of causing death or serious bodily injury as required by section 1.07(a)(17)(B).
The indictment alleged and the charge required the State to prove, among other things, that Appellant intentionally and knowingly caused Officer Garcia bodily injury by hitting him "about the face and head with his fists" and Appellant, "during the assault, used or exhibited HIS FISTS, a deadly weapon." We note that the jury charge also allowed the jury to convict Appellant as a primary actor or as a party in count II. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a). Criminal responsibility for the conduct of another exists when the defendant, "acting with intent to promote or assist the commission of the offense . . . solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . ." Tex. Penal Code Ann. § 7.02(a)(2).
Here, Officer Garcia testified and the audio recording from his in-car video confirmed that Appellant refused to cooperate with Officer Garcia in his attempt to handcuff Appellant. Appellant told Officer Garcia "don't touch me" and walked away and into his house. When Officer Garcia followed Appellant into the house, Appellant yelled numerous times "you better get him", referring to Officer Garcia. In response, Hester yelled at Officer Garcia that he "was not going to place his brother in handcuffs" and pushed Officer Garcia from behind into Appellant, which caused Officer Garcia to land on the floor with his back against the wall.
Officer Garcia testified that Appellant and Hester pinned his legs underneath them, were on top of him, and continuously punched him in the face and head. Appellant punched Officer Garcia with his fists on the right side of his face and head, and Hester punched him on the left side. Officer Garcia testified that he was afraid he would "get knocked out" and lose consciousness. Officer Garcia stated he feared for his life as he was continuously being punched and he "didn't know if [he] was going to make it out of there or not." He also stated that fists can be deadly weapons. Evidence showed that Appellant was very close to Officer Garcia as he kept punching him for about two minutes. The jury could see the size of Appellant and his hands in the court room compared to Officer Garcia. Appellant and Officer Garcia both weigh approximately 200 pounds but Appellant is six foot two inches tall while Officer Garcia is only five foot four inches tall.
Complainant confirmed that Appellant and Hester beat Officer Garcia. Complainant can be heard on the 9-1-1 recording telling the dispatcher that Appellant and Hester are "beating up . . . they're assaulting" Officer Garcia. Further, the jury could hear how angry Appellant was at Officer Garcia; the in-car recording was played for the jury on which Appellant can be heard yelling at Officer Garcia that he beat Officer Garcia because he came into Appellant's house and allegedly touched his mother.
Officer Garcia also testified he had a headache and blood was flowing from his head down his face. He testified he suffered minor contusions, "had two 1-inch cuts on the top of [his] head, bruising on the back of [his] head, side of [his] head, and right side", swelling and bruising on the right side of his head where Appellant continuously hit him. Officer Garcia stated his injuries were very painful and "it hurt a lot" when he was getting punched with fists. He stated that the fist blows felt like getting hit with a brick and he "felt lucky to be still standing."
Appellant complains that Officer Garcia did not sustain serious bodily injuries, "did not require stitches and did not exhibit any nausea, seizures, dizziness, tingling, nose bleeds, shortness of breath[,] back pain or neck pain." But Appellant provides no authority that a person must in fact sustain serious bodily injuries or experience any other above-listed effects to support a deadly weapon finding. Appellant's reliance on Davis v. State, 533 S.W.3d 498 (Tex. App.—Corpus Christi 2017, pet. ref'd) is misplaced.
In Davis, the defendant struck his cellmate in the back of the head with his fist causing the cellmate's nose to strike the ledge of the window. Id. at 504, 509. A witness also observed the defendant "'throw[] a few punches' to [the cellmate]'s face and chest area while the cellmate 'cover[ed] up' in a defensive position." Id. at 503. The cellmate "suffered bruises on his face and a laceration to his nose when it struck the ledge of the window cell" which required stitches to treat the laceration. Id. at 504. The court of appeals concluded the injuries the cellmate suffered did not demonstrate the defendant used his hands in a manner that was capable of causing death or serious bodily injury. Id. at 509. The court also concluded that "the injuries and the State's remaining evidence establish[ed] only the hypothetical capability of hands to cause death or serious bodily injury", noting that (1) the defendant hit the cellmate once in the back of the head causing his nose to strike the window ledge, and (2) the defendant only "deliver[ed] 'a few' punches to the face and upper body while [the cellmate] was in a defensive position, but there was no evidence that appellant delivered repeated, targeted blows." Id. at 509.
First, we are not bound by Davis. Second, injuries are only one factor to be considered in determining whether an object is a deadly weapon under section 1.07(a)(17)(B). As we stated, the nature of any inflicted wounds is a factor to be considered, but wounds are not a prerequisite to a deadly weapon finding. Dominique, 598 S.W.2d at 286; Romero, 331 S.W.3d at 84. Third, Davis is distinguishable in that the cellmate's nose injury requiring stitches was not caused by the defendant's fist punching him but was caused because the cellmate hit his nose on the window ledge. Additionally, the defendant in Davis did not deliver repeated, targeted blows whereas here Appellant continuously punched Officer Garcia in the face and head with his fists for about two minutes.
We conclude that viewed in the light most favorable to the jury's guilty verdict, the evidence sufficiently supports the jury's finding that Appellant used his fists in a manner that was capable of at least causing serious bodily injury, and that Appellant's fists as used in this case constituted a deadly weapon. Accordingly, we overrule Appellant's first issue.
C. Deadly Weapon — Hammer
In his second issue, Appellant argues there is insufficient evidence to support the jury's finding in count III that Appellant used a hammer as a deadly weapon.
The indictment alleged and the charge required the State to prove, among other things, that Appellant intentionally and knowingly caused Officer Garcia bodily injury by hitting him "about the face and head with his fists" and Appellant, "during the assault, used or exhibited A HAMMER, a deadly weapon."
Appellant argues there is insufficient evidence to support the jury's finding because a hammer is not manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. He also contends there is "no evidence Appellant threatened Garcia with the alleged hammer, there were no injuries caused by a hammer, there was no testimony that Garcia feared the hammer nor was there any testimony regarding the hammer's potential for causing death or bodily injury."
Although Appellant correctly asserts that a hammer is not designed or made for the purpose of inflicting serious bodily injury or death, Appellant is wrong in claiming that he did not threaten Officer Garcia and that there was no testimony that Officer Garcia was afraid of the hammer or that the hammer was capable of causing death or bodily injury.
Officer Garcia testified that Appellant got up from on top of him after Appellant saw him reloading his service weapon. Appellant ran into the laundry room and shut the door behind him. Officer Garcia followed Appellant and instructed Appellant to open the door. Officer Garcia testified he pushed the door open and knew that Appellant was behind the door. Officer Garcia saw Appellant holding a hammer in his arm raised up in the air. Officer Garcia testified he shut the door because he "didn't want to get hit by a hammer." He again instructed Appellant to open the door and to put the hammer down; when he managed to push the door open, he again saw Appellant holding a hammer in his raised arm. After Officer Garcia's third attempt to open the door, the door broke in half and Appellant ran out of the laundry room.
The jury also heard Officer Garcia's in-car recording, on which Appellant can be heard yelling, "I'm not playing", and Officer Garcia can be heard shouting at Appellant to open the door. Officer Garcia can also be heard instructing Appellant numerous times to "put the hammer down" and Appellant yelling in response, "you put it down" — meaning Officer Garcia's service weapon. The jury could reasonably conclude from this exchange that Appellant not only threatened Officer Garcia with the hammer but was ready to use the hammer against him. Officer Garcia testified that he "was frightened that [he] was going to get struck by a hammer" because "[i]t's a weapon now" and it is "capable of causing death or serious bodily injury in [his] experience." Officer Failla also testified that a hammer can be a deadly weapon.
The actual hammer Appellant held in his hand was not admitted into evidence, but a photo of the hammer as it laid on Appellant's kitchen floor was shown to the jury. The jury could see the size and shape of the hammer that Appellant held in his hand and could assess that it was a mid- to large-size hammer. And although Appellant correctly states that he did not actually cause Officer Garcia any injuries with the hammer, injuries or wounds are not a prerequisite to a deadly weapon finding. See Dominique, 598 S.W.2d at 286; Romero, 331 S.W.3d at 84. We also note that the Court of Criminal Appeals has stated:
[O]bjects used to threaten deadly force are in fact deadly weapons. The statute does not say "anything that in the manner of its use or intended use causes death or serious bodily injury." Instead the statute provides that a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." § 1.07(a)(17)(B) (emphasis added). The provision's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). In McCain, the evidence showed that the defendant kicked in the door of the complainant's kitchen and hit her numerous times with his fist. Id. at 499. During the attack, the complainant saw a long, dark object partly sticking out of the defendant's back pocket, and she believed that the object was a knife and was worried that the defendant would cut her with it. Id. There was no evidence that the defendant touched, brandished, referred to, or overtly displayed the knife in any way other than having it partly sticking out of his pocket. Id. The court concluded that "the mere carrying of a butcher knife during such a violent attack as occurred in the present case was legally sufficient for a factfinder to conclude that the 'intended use' for the knife was that it be capable of causing death or serious bodily injury. Hence, the evidence was legally sufficient to show that the butcher knife was a deadly weapon under the circumstances." Id. at 503.
Under the facts of this case, the factfinder reasonably could have concluded that the hammer was capable of causing death or serious bodily injury had Appellant hit Officer Garcia with the hammer. The intended use of a hammer is to hit something very hard with it. Appellant picked up a hammer and held it in his raised arm. There is no other reason revealed in the record for Appellant holding a hammer in his raised hand but to threaten to hit or actually hit Officer Garcia.
Considering the factors in determining whether an object is a deadly weapon under the definition in section 1.07(a)(17)(B) and viewing the evidence before us in the light most favorable to the jury's verdict, we conclude the hammer used or exhibited by Appellant was a deadly weapon. Accordingly, we overrule Appellant's second issue.
II. Jury Charge
Appellant contends in his third issue that the trial court erred in "charging the jury on the law of parties because there is no evidence that Appellant and his brother acted as parties."
In reviewing a complaint of jury charge error, we first determine if there was error; and, if there was error, we decide whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Brown v. State, 580 S.W.3d 755, 761 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd). The degree of harm necessary to warrant a reversal depends on whether a defendant objected to the jury charge. Ngo, 175 S.W.3d at 743; Brown, 580 S.W.3d at 761. If a defendant preserved error with a timely objection in the trial court, as Appellant did here, and the reviewing court finds error, the record need show only "some harm" to warrant a reversal. See Ngo, 175 S.W.3d at 743; Brown, 580 S.W.3d at 761. The "some harm" standard requires error that is "calculated to injure the rights of the defendant." See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). There must be "some actual, rather than merely theoretical, harm from the error." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In assessing harm, we consider (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record as a whole. Sanchez v. State, 376 S.W.3d 767, 774-75 (Tex. Crim. App. 2012); Almanza, 686 S.W.2d at 171.
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code Ann. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if while "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2).
A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Bargas v. State, 252 S.W.3d 876, 901 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A law of parties instruction is proper if sufficient evidence supports a jury verdict that the defendant is criminally responsible under the law of parties. Id. In making this determination, courts may consider events that occurred before, during, and after the commission of the crime. Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996).
Appellant contends that the law of parties instruction in count II was erroneously submitted because there is no evidence that (1) Appellant and Hester had a common plan; (2) Appellant intended to promote or assist Hester in assaulting Officer Garcia; and (3) Appellant gave Hester orders or directed him.
Contrary to Appellant's assertion, there is sufficient evidence that Appellant encouraged, directed, and aided Hester in assaulting Officer Garcia. When Appellant entered his house to avoid being handcuffed by Officer Garcia, Appellant encouraged and directed Hester, among others, to attack Officer Garcia by yelling out numerous times "you better get him". Hester took direction from Appellant when Hester yelled at Officer Garcia that he "was not going to place his brother in handcuffs" and pushed Officer Garcia from behind. After Officer Garcia fell on the floor, Appellant and Hester got on top of him, pinned his legs down, and punched him in the face and head. Appellant continuously hit Officer Garcia on the right side of his head while Hester hit Officer Garcia on the left side; Appellant's actions certainly aided Hester (and vice versa) in assaulting Officer Garcia.
Based on the record before us, we conclude there is sufficient evidence that Appellant, acting with intent to promote or assist the commission of the assault, at least encouraged, directed, or aided Hester in assaulting Officer Garcia. Therefore, the trial court did not err by including a law of the parties instruction for count II in the jury charge. Accordingly, we overrule Appellant's third issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ Meagan Hassan
Justice Panel consists of Justices Christopher, Bourliot, and Hassan.
Do Not Publish — Tex. R. App. 47.2(b).