Opinion
No. 05-08-00611-CR
Opinion Filed May 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81005-07.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
A jury convicted Branden Lee Ownbey of aggravated robbery and assessed punishment at ten years' confinement. In three issues, Ownbey argues the trial court erred by telling his counsel to "tell the jury what you plan to prove" during opening statements and that the evidence is legally and factually insufficient to support the jury's verdict. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. The State objected to a portion of Ownbey's opening statement as argumentative. The trial court sustained the objection and said, "Just tell the jury what you plan to prove." A few moments later, the State objected that defense counsel's statement was irrelevant. The trial court sustained the objection and again told defense counsel to tell the jury what she intended to prove. Defense counsel said, "I don't have to prove anything," and continued her opening statement. We conclude the trial court's statements were not error. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(5), (b) (Vernon 2007) (defendant's counsel shall state "[t]he nature of the defenses relied upon and the facts expected to be proved in their support"); Robles v. State, 104 S.W.3d 649, 652 (Tex.App.-Houston [1st Dist.] 2003, no pet.) ("The proper purpose of the opening statement for the defendant is to inform the court and the jury what he expects to prove."). Further, before opening statements, the trial court instructed the jury that the defendant is never required to prove his innocence. In the jury charge, the trial court also instructed the jury about the presumption of innocence and that "[t]he law does not require a defendant to prove his innocence or produce any evidence at all." Thus, we conclude any error did not affect Ownbey's substantial rights. See Tex. R. App. P. 44.2(b). We overrule Ownbey's first issue. Ownbey's second and third issues challenge the legal and factual sufficiency of the evidence. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (legal sufficiency). See also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). A person commits the offense of aggravated robbery if he commits robbery and causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 29.03(a)(1), (2) (Vernon 2003). A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(a), (b)(1) (Vernon Supp. 2008). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). "Deadly weapon" includes anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17)(B). The record contains evidence that Walter Mitchell, the complainant, drove to a construction site to meet with a state inspector. Mitchell got out and left his truck running. He was leaning against the hood when Ownbey walked by and got in the truck. Mitchell asked what he was doing, but Ownbey did not respond and locked the doors. Mitchell knocked on the driver's window and ordered Ownbey out of the truck. Ownbey backed up, but stopped because another truck was parked behind Mitchell's truck. Mitchell was standing about ten feet in front of his truck, and said "Hey, now what are you going to do?" Ownbey then put the truck in drive, spun the tires, leaving rubber on the pavement, and accelerated toward Mitchell. Mitchell jumped out of the way, but the truck struck his arm. Ownbey drove through the grass, jumped a curb, drove across a sidewalk, and in and out of traffic after hitting Mitchell. The next day, Mitchell's arm was swollen to twice its normal size and badly bruised. Mitchell received physical therapy, had surgery, and at the time of trial over a year later, still lacked thirteen percent of the function in his hand and arm. Ownbey was arrested five days after the incident driving the stolen truck. He admitted to police he stole the truck, but said he did not hurt anyone. Considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the accused guilty of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Thus, we decide Ownbey's legal sufficiency issue against him. Ownbey contends the evidence is factually insufficient to prove he acted with the requisite intent to cause bodily injury or used a deadly weapon in commission of a crime. He contends Mitchell merely testified that Ownbey tried to back up and leave. Ownbey's statement to police indicated he saw the truck idling and all the construction workers were about twenty feet away. He then got in the truck and drove away. His statement said he heard the workers yelling at him to stop, but he kept going. However, Mitchell testified he was leaning up against the hood of the truck when Ownbey walked by and got in the truck. There is also evidence Ownbey drove recklessly when he accelerated toward Mitchell who was only ten feet in front of the truck. Mitchell testified he could see the driver clearly and nothing obstructed Ownbey's view. Mitchell suffered bodily injury as a result of being hit by the truck. Ownbey jumped a curb and drove erratically in and out of traffic as he fled with the truck. A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). Specific intent to use a motor vehicle as a deadly weapon is not required. Id. Considering all the evidence in a neutral light and in the context of a hypothetically correct jury charge authorized by the indictment, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415; Fuller, 73 S.W.3d at 254. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex.Crim.App. 2007). We decide appellant's factual sufficiency issue against him.