Opinion
Nos. 05-02-00681-CR, 05-02-00682-CR, 05-02-00683-CR, 05-02-00684-CR.
Opinion Issued February 21, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F01-58928-NH, F01-58929-NH, F01-58930-NH, F01-58931-NH. AFFIRMED.
Before Justices JAMES, FITZGERALD, and LANG.
OPINION
Charles Drue Davis appeals his convictions for unauthorized use of a motor vehicle, evading arrest, and aggravated assault on a peace officer. After finding appellant guilty the jury assessed appellant's punishment at two years' imprisonment in the unauthorized use of a motor vehicle and the evading arrest cases and at five years, six months' imprisonment in the two aggravated assault on a peace officer cases. The trial court entered deadly weapon findings in the two aggravated assault on a peace officer cases. Appellant brings three points of error contending: (1) the evidence of aggravated assault is legally insufficient to show appellant intended to threaten to harm the peace officers; (2) the evidence of aggravated assault is legally insufficient to show appellant used the motor vehicle as a deadly weapon; and (3) the evidence is factually insufficient in all the cases to prove appellant's identity as the driver of the vehicle. We affirm the judgments.
FACTUAL BACKGROUND
On November 1, 2001, David Cahn's car keys were stolen from his office, and his car, a 2002 Monte Carlo, was stolen from the office parking garage. Nine days later, on November 10, Dallas Police Officer Broderick Valentine saw a Monte Carlo make an erratic U-turn in front of him. Valentine began following the car, which was driving very fast. Valentine's partner, Officer Seldon O'Brien, ran a computer check on the car and learned that it was stolen. Valentine activated the police car's siren and overhead lights, but the Monte Carlo did not stop. Instead, the car drove quickly through a residential neighborhood. At one point, the Monte Carlo slowed, and a female passenger jumped out of the front seat. The car then drove on, and Valentine and O'Brien pursued the Monte Carlo out of Dallas and into Garland, reaching speeds of up to a hundred miles an hour. The Monte Carlo turned onto a side street and stopped. Valentine stopped the squad car behind the Monte Carlo. Before Valentine and O'Brien could get out of the squad car, the Monte Carlo reversed, violently rammed its rear bumper into the front of the squad car, and drove into a residential neighborhood. Realizing the squad car was disabled from the collision, Valentine reported the direction of the Monte Carlo. Garland police officers found the Monte Carlo abandoned several blocks away. The officers then received a report that a person wearing red-and-black shoes, black pants, and a red shirt was seen fleeing the area where the Monte Carlo was found. A few minutes later, Garland Police Officer Sharon Burleson saw appellant, who was wearing red-and-black shoes, black pants, and a white shirt. After stopping appellant and questioning him briefly about where he was going, Burleson let him go. As he walked away, appellant looked back at Burleson repeatedly before he disappeared from view. Burleson went to the address appellant gave for his destination, but the lights were turned off at this residence, and the residents said they did not know appellant. Garland police brought a police dog to the Monte Carlo. The dog picked up the driver's scent and led the police one block away where appellant was knocking on doors and frantically asking to use a telephone. The officers noticed appellant was carrying a backpack, which contained a red shirt. Dallas police officers arrived and took appellant to Valentine and O'Brien, who identified appellant as the driver of the Monte Carlo. In appellant's wallet, the police found a pawn ticket dated November 2, 2001 for a tool kit that had been in the Monte Carlo. In appellant's backpack, the police found Cahn's compact-disc case containing compact discs belonging to appellant. Cahn found a letter addressed to appellant and a photograph of appellant and a young woman in the console between the two front seats. Cahn found a photograph of a young woman in the glove box. Cahn also found numerous items of clothing in the car. Appellant testified that on November 10, 2001, Brian Johnson agreed to give him a ride to Plano. Johnson picked up appellant in the Monte Carlo. Johnson already had two other passengers: a male passenger in the back seat named Girard and a female passenger in the front seat. Appellant got in the Monte Carlo, and they drove to some apartments where they dropped off Girard. As they drove toward a convenience store to get cigarettes for the female passenger, Johnson noticed a police car was following them. Johnson changed lanes and sped up to try to elude the police. As Johnson made the U-turn, he told appellant the car was "hot," and he suggested appellant get out of sight if he wanted to avoid trouble. Appellant and the woman screamed at Johnson to stop. Appellant tried to use his mobile phone to call for help, but the battery was dead. Johnson told appellant he would let the woman out first, and he did. Before appellant could get out of the back seat of the car, Johnson drove off. Appellant testified Johnson did not put the Monte Carlo into reverse and ram the police car; he testified the police car rammed the Monte Carlo, forcing it to hit a curb and spin out. When Johnson stopped the car a few blocks away, appellant and Johnson got out of the car, and they discussed whether appellant should drive the car back to where they left Valentine and O'Brien and explain that the incident had been a mistake. Johnson told appellant that if he drove the car back there, the police would think he had been driving it during the chase and arrest him. Appellant got in the driver's seat and Johnson got in the passenger's seat, and appellant drove the car into an alley. Johnson took the keys, told appellant he was going down the street where a friend of his lived, and asked appellant to come with him. Appellant refused to join him, and they went separate ways. Appellant then changed his shoes and shirt and started walking down the street. Appellant testified he lied to the police officers about his destination because he did not want to be associated with the Monte Carlo. He testified that after the Garland police arrested him on an outstanding warrant, he was taken to Valentine and O'Brien, who said appellant was not the driver. Appellant testified that all the items Cahn found in the car belonged to him and that they were in his backpack when he left the car, was later arrested, and his backpack taken from him.SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant contends the evidence is legally insufficient to prove the aggravated assault charges. When reviewing the legal sufficiency of the evidence, this Court must examine 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). To prove aggravated assault, the State had to prove (1) appellant intentionally or knowingly threatened Valentine and O'Brien with imminent bodily injury, (2) appellant knew Valentine and O'Brien were public servants engaged in the discharge of a public duty, and (3) and that appellant used or exhibited a deadly weapon, a motor vehicle. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2) (Vernon 1994 Supp. 2003). "A person acts intentionally, or with intent, with respect . . . to a result of his conduct when it is his conscious objective or desire to . . . cause the result." Id. § 6.03(a) (Vernon 1994). "A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Id. § 6.03(b). Appellant asserts the evidence is legally insufficient to prove he intentionally or knowingly threatened the officers with imminent bodily harm. Appellant argues that, assuming he was the driver, there is no evidence he intended or was aware the act of backing the Monte Carlo into the squad car was a threat of imminent bodily injury to the officers inside the squad car. Appellant also argues the evidence does not show he intended to back the Monte Carlo into the squad car because the officers testified the driver of the Monte Carlo did not turn his head to look behind him while backing up. Appellant argues the driver backed the Monte Carlo into the squad car "in an attempt to turn the vehicle around to escape or, at worst, to disable the patrol car in order to escape." Appellant argues: "[I]t seems unbelievable that trained and armed law enforcement officers would be `very scared' by a fender bender occurring when they were seated and presumably properly belted in their seats." Appellant's arguments are belied by the evidence of the force of the impact. Contrary to appellant's argument, this was no mere "fender bender." Photographs of the squad car showed severe damage to the front of the squad car, and Valentine testified the squad car was rendered inoperable. The jury could infer from these photographs the rate of speed the Monte Carlo was traveling, in reverse, when it struck the squad car. The jury could conclude that backing up in this manner was not consistent with turning around. Appellant knew the squad car was behind him because it had just chased him for several miles at a high rate of speed through Dallas and into Garland. The jury could deduce appellant knew the officers were still in the squad when he backed into it. Even if appellant's intention in hitting the squad car was to disable it, the jury could find appellant was aware his conduct was reasonably certain to cause a threat of imminent bodily harm to the officers. We hold the evidence is legally sufficient to support the jury's finding appellant intentionally or knowingly threatened the officers with imminent bodily harm. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is legally insufficient to support the jury's finding that the motor vehicle was a deadly weapon. A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(17)(B) (Vernon 1994). Appellant relies on Williams v. State, 946 S.W.2d 432 (Tex.App.-Fort Worth 1997), rev'd on other grounds, 970 S.W.2d 566 (Tex.Crim.App. 1998), in support of his argument. In Williams, a state trooper saw the defendant after midnight driving his pickup on Interstate 35 at five to ten miles per hour. Id. at 433. When the pickup stopped, the trooper walked up to it and saw the defendant was passed out in the driver's seat. The trooper testified there was no one else on the highway who could have been endangered by the pickup. The Fort Worth Court of Appeals concluded there was no evidence that appellant's use or intended use of the pickup was capable of causing death or serious bodily injury. Id. at 435. In doing so, the court reasoned,To determine whether in the manner of its use or intended use Williams' truck was "capable" of causing death or serious bodily injury, that "capability" must be evaluated in light of the facts that actually existed while the felony DWI was committed. In other words, the "capability" must be evaluated in light of what did happen rather than the conjecture about what might have happened if the facts had been different than they were.
We conclude that to find the truck "capable" of causing death or serious bodily injury requires evidence that when the DWI offense occurred, there was someone present who was placed in danger of serious bodily injury or death.Id. In this case, the jury could conclude there were people present placed in danger of serious bodily injury and death, namely, Valentine and O'Brien. The jury could also conclude appellant used the vehicle as a weapon and intended to cause the officers serious bodily injury. That the officers were physically uninjured does not change the fact that appellant was using the Monte Carlo as a weapon, and its manner of use indicated appellant intended to use it to cause death or serious bodily injury. We conclude the evidence is legally sufficient to support the jury's finding that the motor vehicle was a deadly weapon. We overrule appellant's second point of error. In his third point of error, appellant contends the evidence is factually insufficient to prove appellant was the driver of the Monte Carlo during the chase. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. See Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Appellant asserts the evidence is factually insufficient because Valentine and O'Brien did not have a good opportunity to look at the driver before the Monte Carlo was abandoned. Valentine and O'Brien testified they were able to see the driver through the untinted windows. Valentine testified he "looked right into the car and saw the defendant driving the vehicle." Valentine looked into the car for "[t]wo to three seconds" when it made the U-turn and there was "no question" appellant was the driver. O'Brien testified he "got a really good look at his [the driver's] face" for two seconds after the collision and there was no question appellant was the driver. Valentine and O'Brien testified they identified appellant as the driver when appellant was brought to them after his apprehension about fifteen to twenty-five minutes after the collision. Appellant testified he was hunched down in the back seat of the Monte Carlo until after the collision. He testified he drove the car into an alley after Johnson had driven it away after the collision. Appellant also testified that when the Monte Carlo hit curb, he bounced up and hit his head on the roof of the car and that Valentine and O'Brien should have seen him at that time. Valentine and O'Brien testified they did not see anyone in the back seat of the Monte Carlo. O'Brien testified he "had a clear view of the car. There was nobody else in that car. I can say that one hundred percent." After considering all the evidence under the factual sufficiency standard, we conclude the proof of appellant's guilt is not so obviously weak as to undermine confidence in the jury's determination, nor is it greatly outweighed by contrary proof. We hold the evidence that appellant was the driver of the Monte Carlo during the chase is factually sufficient. We overrule appellant's third point of error. We affirm the trial court's judgments.