Opinion
No. 07-09-00319-CR
November 9, 2010. DO NOT PUBLISH.
Appealed from the 84th District Court of Hutchinson County; No. 10,257; Honorable William D. Smith, Judge.
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, David Tulio Rodriguez, was convicted of aggravated assault of a public servant. The jury assessed appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 50 years and a fine of $10,000. Appellant appeals contending that the evidence is insufficient to sustain the judgment and that the trial court committed reversible error by not reading the enhancement paragraphs to the jury and/or by failing to have appellant enter a plea to the enhancements. Disagreeing with appellant, we affirm.
See TEX. PENAL CODE ANN. § 22.01(a)(2), § 22.02(a)(2) (Vernon Supp. 2010).
See id. § 22.02(b)(2)(B) (Vernon Supp. 2010).
Factual and Procedural Background
On November 9, 2008, Sergeant Josh Akins of the Fritch Police Department was on duty conducting traffic patrol in Fritch, Texas. Akins's attention was drawn to the Taylor Mart where he observed a male carrying a trash can to the front of the store. Since it was 12:30 a.m. and the store was closed, Akins found this to be suspicious conduct. As Akins continued to observe the store, he observed another male throw something through the door, and then the first male went into the store. Realizing that he was observing a burglary in progress, Akins called for a backup unit and proceeded without any emergency lights or siren to go to the front of the store. As Akins pulled up to the front of the store, both individuals began running away. Akins proceeded to pursue them on foot while giving verbal commands for them to stop. Akins later identified the first man as the co-defendant, Jose Martinez. The second male, the one who entered the store, was eventually identified as appellant. He eventually stopped Martinez by telling him to stop or he would "taze" him. As Akins was putting the hand-cuffs on Martinez, he observed appellant go around the corner toward the back of the store. While continuing to attempt to get the hand-cuffs on Martinez, Akins noticed a vehicle, later identified as a golden-colored Pontiac Firebird. Akins realized that the dome light in the interior of the vehicle was on. That struck him as unusual, and he decided that, after cuffing Martinez, he would approach the vehicle. Akins observed appellant run from the back of the store to the vehicle and begin searching through the car. Fearing appellant was looking for a weapon and knowing Martinez did not have any weapons on him, Akins approached the vehicle. Akins began drawing his weapon as he approached the vehicle. While approaching the vehicle, Akins told appellant not to move. Akins ended up in front of the driver's side of the car looking directly at appellant. Akins testified that the uniform he was wearing at trial was the same uniform he had been wearing during the encounter with appellant. At the moment Akins was in front of the car, appellant "gunned" the car. Akins testified that the car spun its tires, and he jumped to the side to avoid the vehicle. The rear of the car came directly at Akins, and he had to again step out of the way. Akins testified that he was afraid that the car was going to hit him. As the car left, Akins fired one round from his service revolver at the rear tire. Appellant escaped and was not identified and captured until several days later. Appellant was charged with aggravated assault on a public servant. During the State's presentation of evidence, co-defendant Martinez was called as a witness. Martinez testified that, after he had handed the trash can to appellant inside the store, he stayed outside to act as a lookout. Martinez observed Akins driving toward the store and told appellant, "There is a cop behind us." It was at this time that both Martinez and appellant tried to flee. Prior to the trial, the State filed a notice to seek enhancement of felony punishment range of the aggravated assault on a public servant count in the indictment. In the notice, the State alleges that appellant has three prior felony convictions. After the jury found appellant guilty of aggravated assault on a public servant, the State offered evidence to prove up the three prior felony convictions. However, the prior felony convictions were not read to the jury, nor did appellant enter any type of plea to these prior convictions, before the State offered proof of the priors. The Court's Charge on Punishment did contain the allegations of the three prior felony convictions and an application paragraph as to those prior convictions. The jury subsequently returned a verdict of confinement in the ID-TDCJ for 50 years with a fine of $10,000. Appellant has appealed contending that the evidence is both factually and legally insufficient to support the judgment. Specifically, appellant contends that the evidentiary insufficiency goes to the element of appellant's knowledge that Akins was a public servant. Additionally, appellant contends that the failure of the trial court to require the enhancement paragraphs to be read and to obtain a plea from appellant render the judgments reversible. We disagree and affirm.Evidentiary Sufficiency
As an initial consideration, we observe that appellant's appeal contends that the evidence is both legally and factually insufficient. Appellant's brief was prepared and filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State, No. PD-0210-99, 2010 Tex.Crim.App. LEXIS 1240 *25-*26 (Tex.Crim.App. Oct. 6, 2010), wherein the court ruled that there is no distinction between a claim of legal as opposed to factual insufficiency of the evidence. Further, the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported application to factual sufficiency questions.Id. at *55. What the court appears to do is to urge the reviewing court to apply a more rigorous application of the sufficiency test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).Id. at *58. Therefore, we will review appellant's claims of evidentiary sufficiency under the standard of review set forth inJackson. See 443 U.S. at 319.Standard of Review
In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when reviewing all of the evidence under the Jackson standard of review, the ultimate question is whether the jury's finding of guilt was a rational finding.See Brooks, 2010 Tex.Crim.App. LEXIS 1240 at *37 (discussing Judge Cochran's dissent in Watson v. State, 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006) as outlining the proper application of a single evidentiary standard of review).Analysis
To prove the offense of aggravated assault on a public servant by use of a deadly weapon, as alleged in the indictment, the State must prove:1) On or about November 9, 2010
2) appellant
3) intentionally and knowingly used a deadly weapon,
4) an automobile, that in the manner of its use and intended use was capable of causing serious bodily injury or death,
5) and appellant did then and there, threaten Josh Akins
6) with imminent bodily injury or death
7) and that appellant knew that Josh Akins was a public servant,
8) attempting to lawfully discharge an official duty,
9) attempting to detain appellant.See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B);Malik, 953 S.W.2d at 240. Appellant's evidentiary sufficiency argument is focused on whether he had knowledge that Akins was a public servant. Therefore, we will review the record for evidence of that element. The record shows that on the night in question Akins was on duty as a Fritch Police Department Sergeant. Akins was driving a vehicle that had emergency lights and equipment on it when he observed the burglary in progress and proceeded to the Taylor store without activating his emergency equipment. Akins testified that he was wearing the same uniform on the night in question that he wore on the day he testified. That uniform was observed by the jury. The co-defendant, Martinez, testified that, while acting as lookout, he saw Akins's car approaching the Taylor store and stated to appellant, "There is a cop behind us." At that precise moment, appellant and Martinez fled the store. While pursuing the two fleeing burglars, Akins yelled, "Stop or I will taze you." At that instance, Martinez, who was closer to Akins, stopped and went to the ground. After attempting to secure Martinez, Akins saw appellant in the vehicle and went toward him. Akins, while wearing his uniform, stood directly in front of the vehicle being driven by appellant. Further, Akins testified that he made direct eye contact with appellant while standing in front of the vehicle. The jury also saw the video of burglary from the security camera in the store. During the examination of Martinez, the DVD was played, and Martinez identified the officer getting out of his patrol vehicle. The jury also observed this. In light of this record, when viewed in the light most favorable to the verdict, was the jury acting rationally when it found appellant guilty beyond a reasonable doubt? Jackson, 443 U.S. at 319;Ross, 133 S.W.3d at 620. We think so, and, thus, overrule appellant's issue regarding the sufficiency of the evidence.