Opinion
No. 05-02-01963-CR
Opinion Filed August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80784-02. Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG.
OPINION
Robert William Self was charged with aggravated assault of a public servant in the performance of his official duties by using or exhibiting a deadly weapon, namely, a motor vehicle. A jury convicted him of the lesser-included offense of assault of a public servant, assessed punishment at two years' confinement and a $10,000 fine, and recommended community supervision. The trial court suspended imposition of the sentence and placed Self on community supervision for four years. Self appeals. He argues the trial court erred in instructing the jury on the lesser-included offense of assault of a public servant and in overruling his objections to the State's closing argument. We affirm the trial court's judgment. Background There is evidence in the record that police officer Chris Caballero was directing traffic during rush hour at a private drive near the intersection of Preston Road and Frankford. Caballero usually worked with a partner, but his partner was late that day. Caballero was standing in the median of Preston when he saw Self attempting to leave the private drive and cross three northbound lanes of Preston to turn south on Preston. Caballero indicated for Self to stop and retreat back into the private drive because the northbound traffic had not stopped. Self complied, but appeared angry and was yelling and banging on his steering wheel. Caballero was concerned about Self's actions and wrote down the license number of the vehicle. As Caballero was stopping the northbound traffic, Self pulled out of the private drive and drove to the median ignoring Caballero's commands to stop. Caballero saw Self staring at him and driving directly at him. Caballero testified that the front driver's side of Self's vehicle "clipped" Caballero's leg and knocked him back as it crossed. Self stopped at the median because of oncoming southbound traffic. Caballero went up to Self's vehicle, hit the window with his hand and tried to open the door, intending to arrest Self. According to Caballero, Self shook his head "No," and at the next opportunity, turned sharply left to go south on Preston and the rear side of Self's vehicle struck Caballero at his gun-belt. Two employees of a nearby oil change store testified they were familiar with Caballero's traffic duties and that usually he blew his whistle once or twice. On this day, they heard him blowing his whistle frantically, at least twenty times, then they heard a thump as if a car hit something. Afterwards, Caballero walked up limping and used the phone to call police. He said he had been hit by a car. Officer Paul Clingan responded to Caballero's call and took a statement and a description of the vehicle and its license plate from Caballero. Clingan called Officer James Weisinger and asked him to go to Self's residence to see if the vehicle and Self were there. Clingan and other officers then drove to Self's residence. Weisinger did not know that Caballero had been hit or the specifics of the incident. (Weisinger knew Self from working in the area.) Weisinger found the vehicle at Self's house and told Self that the vehicle had been involved in something that was being investigated. Self told Weisinger that he had not driven the vehicle that day and had not been in it at all. Self said his daughter's boyfriend had driven the car that day. When Clingan arrived, he had Caballero identify Self and then placed Self under arrest. While Clingan was transporting Self to jail, Self said, "Okay, I was driving the car. This is absurd. He told me to go on." Caballero testified he was hurt, but had no lasting injuries. Paramedics examined him at the scene. They reported Caballero's chief complaints were his right knuckle, left ankle and knee, and right shoulder. Their records did not indicate any aid was provided, although Caballero testified they gave him an ice-pack for his ankle. Caballero refused to be transported to the hospital by ambulance and said he would go later because he had to go identify someone. Sometime later, after Self's arrest, Caballero went to the hospital and was treated. His medical records indicate he reported pain in his left ankle and knee and right shoulder and wrist. He received pain and nausea medications and was released with instructions. At discharge, he reported a pain level of zero. Caballero testified based on his training and experience that a motor vehicle in the manner in which it is used is capable of causing serious bodily injury or death. Self testified and denied hitting Caballero with his car. He said he saw Caballero when first starting to leave the private drive and obeyed his command to stop. After the northbound traffic stopped, Self pulled through the intersection looking to his right at the oncoming traffic. Self did not see Caballero in front of his vehicle as he crossed the intersection. When he stopped at the median, he heard a loud slam on his window and saw Caballero. Self heard Caballero yell, "Get the hell out of here," and responded that he was going to report Caballero. Self then completed his left turn. Self testified he had not been drinking or taking medications or drugs, and that he was not angry or in a hurry. He testified that he never saw, heard, or felt anything that indicated to him that he might have struck Caballero. Self stated that if his vehicle struck Caballero, it was without Self's knowledge. Self denied hearing Caballero's repeated whistles and denied telling Weisinger that he had not driven the vehicle that day or that his daughter's boyfriend had driven it. Self stated that while he was being transported to jail, he finally realized the situation had to do with Caballero and said "This is absurd. That man told me to go on. I should have never told him I was going to report him." On cross-examination Self stated that he believed Caballero made up the story of being hit in order to get back at Self for threatening to report Caballero. Self also stated the other officers lied, probably to protect Caballero. Lesser-Included Offense Over Self's objection, the trial court instructed the jury on the lesser-included offense of assault of a public servant. In his first issue, Self argues the trial court erred in giving that instruction. We apply a two prong test to determine if the lesser-included offense instruction was proper: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993). Both prongs must be met, regardless of whether the defendant or the State requests the instruction. Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App. 1997). Self does not dispute that in this case assault of a public servant is a lesser-included offense of aggravated assault of a public servant. We agree. See Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App. 1994) (lesser-included offense determined on case by case basis because of different ways greater offense may be committed); see also Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981). Aggravated assault requires proof of an assault and the additional aggravating factor that the actor either caused serious bodily injury or used or exhibited a deadly weapon during commission of the assault. Tex. Pen. Code Ann. § 22.02(a) (Vernon 2003). Thus, the lesser-included offense is included within the proof necessary to establish the charged offense. See Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). The first prong of Rousseau is satisfied. The second prong of Rousseau requires that some evidence exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. See Rousseau, 855 S.W.2d at 672. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003); Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser-included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996) (per curiam); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App. 1992). Further, a defendant's denial of committing any offense does not automatically preclude submission of a lesser-included offense. Schweinle, 915 S.W.2d at 20; Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). Self argues the evidence does not satisfy the second prong of Rousseau because it is undisputed that, if Self hit Caballero, he did so with his vehicle, and there is no evidence that Self acted recklessly as opposed to intentionally or knowingly. We reject Self's argument for two reasons: (1) it incorrectly assumes that a motor vehicle is always a deadly weapon; and (2) it incorrectly assumes the lesser offense of assault of a public servant could only be established by proof of recklessness. First, it is undisputed that Self used his motor vehicle during the commission of the alleged offense. Self, relying on Hampton v. State, argues that the lesser-included offense instruction could only be given if there was evidence that he did not use his vehicle to commit the assault. See Hampton, 109 S.W.3d at 441. Thus, Self's argument assumes a motor vehicle is always a deadly weapon. However, a motor vehicle is not a deadly weapon per se, but can be a deadly weapon if it is driven in a manner so as to endanger lives. Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003) (truck was not a deadly weapon during commission of offense of failure to stop and render aid even though truck had struck and killed a pedestrian moments before). 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(a)(17)(B) (Vernon 2003). To sustain a deadly weapon finding, there must be evidence that others were actually endangered, not "merely a hypothetical potential for danger if others had been present." Mann v. State, 13 S.W.3d 89, 92 (Tex. App.-Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App. 2001). The case Self relies upon, Hampton, was an aggravated sexual assault case involving use of a knife where the jury convicted on the lesser-included offense of sexual assault. The evidence reflected that a knife was held to the victim's throat during the sexual assault. However, the State asserted that because the knife was never located, this constituted some evidence that a knife was not used, raising the lesser offense of sexual assault. Hampton, 109 S.W.3d at 439. The court of criminal appeals disagreed, holding that because there was no actual evidence that the knife was not in fact used during commission of the assault, there was no evidence from which a rational jury could conclude that the assault was committed without using a deadly weapon. Id., at 441. Unlike Hampton, this case is concerned not with what instrument was used during the alleged crime, but with the manner in which it was used. There is no dispute in this case that Self used his motor vehicle; the question is whether by the manner of its use or intended use it was capable of causing serious bodily injury or death. Thus, whether the evidence in this case raises the lesser-included offense hinges on whether there is any evidence that Self's motor vehicle was not used as a deadly weapon. See Tex. Pen. Code Ann. § 22.01(a) (assault), § 22.02(a) (aggravated assault). We look to the record to determine if any such evidence exists. We also consider whether the evidence is so weak that more than one reasonable inference could be drawn regarding the aggravating element. The record contains evidence that Caballero's injuries from being struck by the car were minor and not life threatening. Self testified that he did not see Caballero in front of his vehicle; did not "aim" at Caballero or intend to hit him; was not intoxicated, angry, or in a hurry; and that he waited for traffic to stop before crossing to the median. See generally Cates v. State, 66 S.W.3d 404, 414 (Tex. App.-Houston [14th Dist.] 2001) (Hudson, J., dissenting) (listing examples where motor vehicle was found to be a deadly weapon), rev'd, 102 S.W.3d 735 (Tex.Crim. App. 2003). This constitutes some evidence the vehicle was not used in a manner capable of causing death or serious bodily injury. Although Caballero testified that Self was looking directly at him, the evidence about whether the vehicle was used as a deadly weapon was so weak that more than one reasonable inference could be drawn. Thus, there was evidence from which the jury could rationally conclude that Self did not use or exhibit his vehicle as a deadly weapon during commission of the assault. The second reason we reject Self's argument is that it incorrectly assumes the lesser offense of assault of a public servant could only be established by proof of recklessness. Self argues the lesser-included offense instruction was improper because there was no evidence he acted recklessly, as opposed to intentionally or knowingly. We disagree. Self testified that even though he knew Caballero was in the median, he crossed three lanes of traffic without looking for the officer. He was looking at oncoming traffic to his right and did not see Caballero. Self testified that if his vehicle did hit Caballero, it was without his knowledge. There was also evidence that Self did not hear the repeated whistles of Caballero, although other witnesses heard them. We conclude this is some evidence that Self was reckless. Moreover, proof of only reckless conduct was not required to establish the lesser-included offense of assault of a public servant. Tex. Pen. Code Ann. § 22.01(a)(1). Assault can be established based on evidence of intentional or knowing conduct; evidence of only recklessness is not required to support the charge on the lesser offense. See Little v. State, 659 S.W.2d 425, 426 (Tex.Crim.App. 1983) (charge on lesser-included offense with lower culpable mental state of recklessness proper although indictment alleged greater offense committed intentionally or knowingly). In summary, the aggravating issue in this case was whether a deadly weapon was used or exhibited during commission of the assault. The instruction on the lesser offense was warranted if there was some evidence that Self's vehicle was not used or exhibited as a deadly weapon. Because Self's testimony about how he drove his vehicle is some evidence that it was not used in a manner capable of causing death or serious bodily injury, a jury could rationally find that Self was guilty of the lesser offense of assault of a public servant and not guilty of aggravated assault of a public servant. We resolve Self's first issue against him. Closing Argument In his second and third issues, Self argues the State argued outside the record and the trial court erred by overruling his objections and refusing to instruct the jury to disregard the argument. He asserts the State went outside the record when it argued that the officers who testified "put [their] careers on the line," and that if an officer lied during trial "his job would be on the line." We conclude the arguments were proper responses to defense arguments and matters within common knowledge; in addition, any error in these arguments was waived when Self allowed the State to make a substantially similar argument without objection. Following the defense argument, the State argued: So what is this case about? What is the State saying? It's road rage. I mean you-all have heard about it, you-all have seen it. . . . . . . I don't have to prove motive, I don't have to prove why he [Self] did it. Maybe it's just as simple as the officer made him mad. I don't know. But to suggest that at least three officers, Officer Caballero, Officer Weisinger and Officer Clingan- and Officer Caballero-I mean Officer Clingan says he barely knows Officer Caballero, recognized the name, couldn't put a face with it, recognized his face when he got there. But these men are willing to put 10 and 13 year careers on the line.
[DEFENSE]: Judge, I'm going to object. That is outside the record and is contrary to the evidence. There's nobody's career on the line. There's no evidence to support it. I object.
[PROSECUTOR]: Your Honor, it's a reasonable deduction from the evidence.
THE COURT: Overruled.
. . . .
[PROSECUTOR]: You all know if a officer came in here and flat out lied and it was found out, that his job would be on the line.
[DEFENSE]: Judge, I'm going to object. That is no evidence and that is not true. I object. That is outside the record.
THE COURT: Sustained.
[DEFENSE]: Ask that the jury be instructed to disregard that argument.
THE COURT: Ladies and gentlemen, this is argument of counsel and I think I said before, the attorneys get to tell you how they heard the evidence and what they think it means, and there's plenty of latitude here, and what's going to happen when you go in there to deliberate, you're going to decide how you heard the facts and you're going to decide what you think they mean. All right. Go ahead.
[DEFENSE]: Is my request overruled, Your Honor?
THE COURT: Overruled.
[PROSECUTOR] So these officers would come in here and they would make up this complete story, and they are flat out lying. That's the defense here. This never happened. So Chris Caballero would get mad because somebody crossed when he didn't tell them. Reasonable — and you can make reasonable deductions from the evidence. . . . Reasonable deduction from the evidence, the officer would issue a citation. Okay. Make the guy go to court. He's not going to come in here with this whole story about being hit and all of this. (emphasis added.) Self complains that these two arguments were outside the record and caused him harm.Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Dooley v. State, 65 S.W.3d 840, 843 (Tex. App.-Dallas 2002, pet. ref'd). We determine harm from improper argument under appellate rule 44.2(b) by balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). During his jury argument, defense counsel told the jury that the State would argue why would the officers "make up stories" and tell lies about Self. He suggested that an officer might lie in order to help his fellow officer, i.e. Caballero. He argued that when an officer goes down, they all pull together and help one another. In response, the State argued that the officers were credible because they were willing to put their careers on the line by testifying. Similar arguments have been held to be a proper response to defense testimony or argument attacking the veracity of the witness and a matter of common knowledge. In Bryant v. State, the defendant in a resisting arrest case testified that officers were blatantly lying. 923 S.W.2d 199, 212 (Tex. App.-Waco 1996), pet. ref'd, 940 S.W.2d 663 (Tex.Crim.App. 1997). In response, the State argued in closing that to believe the defendant's story, "you have to believe that two peace officers with almost 35 years of law enforcement experience behind them would come into this courtroom and intentionally give perjured testimony, a felony grade offense, where they could be completely stripped of their peace officer certification, where they could no longer be peace officers." Id. The court held the State's argument was proper because the risks of committing perjury are common knowledge. Id. Similarly, the State's argument that why would officers "risk their careers, their lives, committing perjury" in response to defense argument that the officers did not see what they testified to was proper argument because "[t]he fact that a person incurs risks by committing perjury is a matter of common knowledge." Vasquez v. State, 830 S.W.2d 829, 831 (Tex. App.-Corpus Christi 1992, pet. ref'd). It also appears that Self waived any error in these arguments by failing to continue to object to the same argument. Generally, a timely objection must be made each time improper evidence or argument is presented. See Tex.R.App.P. 33.1; Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Where the same evidence or argument is presented elsewhere during the trial without objection, no reversible error exists. McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992); Valdez v. State, 2 S.W.3d 518, 521-22 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (any error in repeated argument that defendant was pedophile waived by failure to object each time State characterized him as pedophile). After the exchanges quoted above, the State argued: So what we have here is basically, it didn't happen. It's all a big lie. Okay. Which is incredible. But if it did happen, there was no bodily injury. Okay? He's right, there's no injury, there's no outward manifestation of any injury, so it's whether or not you believe that when Chris Caballero got hit by that car that was coming across the northbound lanes, it hurt him. . . . [A]sk yourselves how many times you've — and I'm not comparing this to being assaulted, but how many times you've twisted your ankle and it takes you maybe an hour for it to not hurt anymore. . . . So by the time he got to the hospital, he was honest with them and said it doesn't hurt anymore, I'm fine. If he really wanted to get this guy, he knows what aggravated assault on a police officer is. He knows that I have to prove bodily injury. You don't think he knows that? If he was so willing to lie and put everything on the line to get this Defendant for violating a traffic signal, then why wouldn't he lie on that too? My pain level was a seven. I mean it just doesn't make any sense. (emphasis added). Self did not object to the comment that Caballero would be putting everything on the line by lying. Self argues that this third argument is different from the earlier arguments that the officers would be putting their careers and jobs on the line by lying. We see little difference in the argument that lying in court would put an officer's career or job on the line and that lying would put everything on the line. Even if the trial court had erred with respect to the first two statements during argument, Self's failure to object to the third statement that injected substantially the same information before the jury waived the error. See McFarland, 845 S.W.2d at 840. Accordingly, we resolve Self's second and third issues against him. We affirm the trial court's judgment.
Although a knife is not a deadly weapon per se, the manner in which it was used in Hampton clearly indicated that it was capable of causing serious bodily injury or death. See Hampton, 109 S.W.3d at 439.