No. 05-06-00445-CR
Opinion Filed August 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 053366-336. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice FRANCIS.
A jury convicted Vernice Allen Dewey of three counts of endangering a child and assessed punishment, enhanced by two prior convictions, at imprisonment for thirty years on each count. The jury also made an affirmative finding that appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of the offenses. In a single issue, appellant contends the evidence is factually insufficient to support the convictions. We affirm.
Background
At about 4:00 p.m. on May 17, 2005, eleven-year-old David Byrom and twelve-year-olds Derek Reeves and Chris Carney were riding their bicycles around the main streets in Collinsville. As they rode down the right side of the street, they saw a green pickup truck coming from their left at a fast rate of speed. Byrom, Reeves, and Carney identified appellant as the driver of the truck. The boys testified appellant drove through a stop sign without stopping, made a wide turn, and swerved into a grassy "ditch" area. The boys moved to the left side of the street, but appellant swerved back onto the road and headed towards them. They jumped off their bikes and ran into the ditch area to avoid the truck. Reeves and Byrom testified appellant's truck came within four feet of hitting them. Carney initially stated that appellant's truck stopped within twelve feet of hitting him, but later said appellant stopped within twelve yards of hitting him. Byrom, Reeves, and Carney told the jury that when appellant stopped the truck, he yelled, "Get out of the f____ road" and "Do you f____ understand what I'm telling you?" The boys were afraid appellant was going to run over them. They each said "yes" to appellant and did not move. Appellant drove away. The boys went to Carney's house and told Carney's father about the incident, then talked to Officer Ragsdale. Carney said that when appellant slammed on the brakes to avoid hitting them, smoke came from the tires and the truck stopped partly in the ditch area. Landon Hale saw appellant driving in the high school's parking lot at about 3:45 p.m. on May 17, 2005. Hale was sitting on a railing waiting for his mother to pick him up after school. He saw appellant swerve his truck onto the grass then back onto the concrete. When appellant's truck headed towards Hale, he moved from the railing because the truck came within twenty feet of him and he thought appellant would hit him. Appellant stopped the truck and drove out of the lot. Later, Hale was on Main Street with friends getting ready to ride their bicycles when he saw appellant driving with two tires on the curb; appellant swerved off the curb to avoid hitting a pole. Hale described appellant's eyes as almost closed and said appellant looked "out of it." City secretary Frances Pilcher received a call from a resident who reported seeing a green truck speeding and driving erratically. Pilcher looked out of the front door and saw a green truck driving down Main Street near her office with its left tires on the curb. The truck drove on the curb for a short distance, then got back onto the street. Pilcher identified appellant as the driver of the truck. Pilcher reported the incident to Ragsdale. Collinsville police officer Jennifer Ragsdale told the jury that on May 17, 2005, a frightened boy came to her house and reported that a man driving a green truck almost ran over him and his friends. Ragsdale began looking for the suspect vehicle. She received a call from Pilcher who reported seeing an intoxicated person driving a green truck down the street. When Ragsdale saw appellant's vehicle on the highway, it sounded "very loud" and she saw smoke billowing from it. Although appellant slowed down, he could not stop the vehicle from rolling forward. Ragsdale opened the driver's side door, reached across appellant, and put the truck in park. Appellant took a container of pills from his shirt pocket and swallowed them all. Ragsdale described appellant as being "very agitated;" she could smell the odor of alcoholic beverage on his person. Ragsdale called for paramedics because she did not know what appellant had ingested. An ambulance transported appellant to a nearby hospital. Ragsdale testified that a motor vehicle can be a deadly weapon and is capable of causing death or serious bodily injury. Cassidi Huffman, a registered nurse, helped treat appellant at the hospital. Appellant was initially combative and uncooperative and smelled of alcoholic beverage. Appellant eventually told Huffman he had taken four Lortab pills at about 3:00 p.m. that day and then took more when his vehicle was stopped. Huffman testified that patients who are prescribed Lortab for pain are instructed not to drink alcohol when taking it and not to drive after taking it. Blood tests showed that at the time appellant was brought to the hospital, his blood alcohol level was 0.23 grams per deciliter. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, recklessly, or with criminal negligence, engaged in conduct that placed David Byrom, Derek Reeves, and Chris Carney, children younger than fifteen years of age, in imminent danger of death, bodily injury, or physical or mental impairment by operating a motor vehicle while intoxicated at or in the direction of David Byrom, Derek Reeves, and Chris Carney, and appellant used or exhibited a deadly weapon during the commission of the offenses. See Tex. Pen. Code Ann. §§ 22.041(c), 49.04(a) (Vernon 2003 Supp. 2005). A "deadly weapon" is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17). The statutes cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Discussion
Appellant argues the evidence is factually insufficient to support the convictions and that he used or exhibited a deadly weapon. Appellant asserts the credibility of the boys' testimony is too weak to support the jury's verdict because they gave different versions regarding the distance in which appellant nearly struck them. Appellant asks us to modify the judgment to reflect convictions for the lesser-included misdemeanor offense of driving while intoxicated. The State responds that the evidence is factually sufficient to support the convictions for endangering a child. There was conflicting evidence presented in this case. Appellant does not contest the evidence that he was driving while intoxicated by use of alcohol and prescription medication. Appellant complains that the testimony of the three complainants should not be believed because they each gave a different distance in relation to appellant's vehicle. Byrom and Reeves testified appellant's truck came within four feet of striking them, while Carney testified appellant's truck came within twelve yards or twelve feet of striking him. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's finding that appellant committed the endangering a child offenses and used or exhibited a deadly weapon, a motor vehicle, during the commission of the offenses. We resolve appellant's issue against him. We affirm the trial court's judgment as to each count.