Blanc, Raul v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAUL BLANC, )

) No. 08-02-00126-CR

Appellant, )

) Appeal from the

v. )

) 41st District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D03600)

)

O P I N I O N

Raul Blanc appeals his conviction for aggravated assault with a deadly weapon. See Tex.Pen.Code Ann. ' 22.02 (a)(2)(Vernon 2003). The jury found Appellant guilty of the offense as charged in the indictment and assessed punishment at 2 years= imprisonment, probated. Appellant now challenges the legal sufficiency of the evidence to support his conviction. We affirm.

SUMMARY OF THE EVIDENCE

On the evening of July 29, 2001, Mr. Fernando Rodriguez and Mr. Jonathan Crocker were working as security guards for the weekly cruise meeting of the Custom Cruise and Race Association being held in the Regis Bernard store parking lot on Lee Trevino. Mr. Martin McClure, Jr., president of this car club, testified that members of the club have a sticker located above the car=s inspection sticker. Only those who had the sticker were allowed to enter the parking lot pursuant to Regis Bernard=s requirements in the club=s use of the premises. Mr. McClure had hired Night Eyes Protective Services, the security company, to control traffic into the lot. That evening Mr. Rodriguez and Mr. Crocker were directing club-member vehicles that were permitted to enter to park in the lot and were directing those that did not have stickers back out onto the road.

Mr. Rodriguez testified that he has worked for Night Eyes for approximately four years, after serving with law enforcement for over twenty-seven years. Mr. Rodriguez retired from the El Paso Police Department in 1980 and had also served with the Sheriff=s Office, the United State=s Marshal=s Office, and the Texas Department of Public Safety. Mr. Rodriguez=s duty that night was to control traffic into the parking lot area cordoned off for the club meeting. Mr. Rodriguez testified that he was watching the entryway of the parking lot when he saw a truck traveling at what he felt was a high rate of speed, exceeding the limit, coming towards him. At trial, Mr. Rodriguez identified Appellant as the driver of the Ford truck. Mr. Rodriguez stated that the vehicle was coming at him and going beyond what any prudent person would go under the circumstances in that particular type of parking lot.

As the vehicle approached him, Mr. Rodriguez tried to attract Appellant=s attention by waving his baton with flashlight and blowing his whistle. Mr. Rodriguez stated that he was trying to get Appellant to stop right there to direct him back because he was not supposed to be in that area. Appellant did not stop when Mr. Rodriguez motioned to him with the light and blew the whistle. Although Mr. Rodriguez was not sure whether Appellant heard the whistle, he was sure that Appellant could see his waving of the baton with flashlight. Mr. Rodriguez recalled that he was standing right at the center, but Appellant just kept on coming. Mr. Rodriguez then realized Appellant was not going to stop and finally moved, trying to get away from Appellant=s vehicle. Appellant=s vehicle struck Mr. Rodriguez=s knee and caused him to fall on the ground. Appellant stopped his vehicle after hitting Mr. Rodriguez. As Mr. Rodriguez started to get up, however, Appellant began to drive forward again. Mr. Rodriguez radioed to Mr. Crocker, the other security guard on duty, for assistance in stopping the vehicle. Mr. Rodriguez testified that he felt threatened when Appellant=s vehicle was coming at him and was in fear of serious bodily injury or death at that time.

Mr. Crocker testified that when he first saw Appellant=s truck it was coming towards him at about fifteen miles per hour. Mr. Crocker motioned to Appellant to stop the vehicle. Appellant slowed down, but continued to drive forward. Mr. Crocker stated that he twice told Appellant to stop, but the vehicle continued to come towards him. The third time Mr. Crocker told Appellant to stop, Mr. Crocker moved his hand towards his weapon and Appellant=s vehicle came to a stop.

Mr. Crocker told Appellant to put the vehicle in park. Mr. Rodriguez told Appellant to get out of the truck and Appellant responded, AWell, go fuck yourself@ and also said he was not going to get out. Mr. Rodriguez recalled that Appellant and a passenger had a canister of beer in the truck and that Appellant was drinking beer as Mr. Rodriguez was trying to get Appellant out of the truck. Appellant=s passenger exited the vehicle first and the guards were able to get Appellant out of the truck only after using some force. Mr. Rodriguez then handcuffed Appellant and the passenger and detained them until police officers arrived. Police officers David Amparan and David Briones responded to the patrol dispatch call to investigate the incident at the Regis Bernard parking lot. Officer Amparan observed that Appellant had slurred speech, red bloodshot eyes, staggered walking, and smelled of an unknown alcoholic beverage.

DISCUSSION

Sufficiency of the Evidence

In Appellant=s sole issue for review, he contends that the evidence was legally insufficient to support the conviction because there was no proof of a threat nor proof of Appellant intentionally or knowingly placing the complainant, Fernando Rodriguez, in fear of imminent bodily injury.

Standard of Review

When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the jury=s verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This standard of review applies to both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We do not resolve conflicts of fact or assign credibility to witnesses, as determinations of witness credibility and the weight of the evidence are left to the jury. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Our duty, rather, is to determine if the explicit and implicit findings of the jury are rational by reviewing all of the evidence in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22; Menchacav. State, 901 S.W.2d 640, 650 (Tex.App.--El Paso 1995, pet. ref=d). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Menchaca, 901 S.W.2d at 651.

Aggravated Assault

A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. See Tex.Pen.Code Ann. ' 22.01(a)(2)(Vernon 2003). Aggravated assault occurs if, in the course of committing an assault under Section 22.01, the person uses or exhibits a deadly weapon. See Tex.Pen.Code Ann. ' 22.02(a)(2). AA person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@ Tex.Pen.CodeAnn. ' 6.03(a)(Vernon 2003). AA person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. 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.@ Tex.Pen.Code Ann. ' 6.03(b).

The indictment in this cause alleged that Aon or about the 29th day of July, 2001 . . . in the County of El Paso and State of Texas, RAUL BLANC, hereinafter referred to as Defendant,

did then and there intentionally and knowingly threaten FERNANDO RODRIGUEZ with imminent bodily injury and did then and there use and exhibit a deadly weapon during the commission of said assault, to wit: a Ford motor vehicle, that in the manner of its use and intended use was capable of causing death and serious bodily injury . . . .@ It further alleged that Appellant Aused and exhibited a deadly weapon, to wit: a Ford motor vehicle, during the commission of and immediate flight from said offense.@[1]

Appellant argues that the evidence is insufficient to prove the threat element of the charged offense. Specifically, Appellant contends that there is no evidence of menacing or

non-verbal communication directed towards Mr. Rodriguez and that there was never any perception of a threat by Mr. Rodriguez until he was hit. Appellant also asserts the evidence is legally insufficient to prove he intentionally or knowingly threatened Mr. Rodriguez with imminent bodily injury.

Threats may be communicated by action, conduct, or words. McGowan v. State, 664 S.W.2d 355, 357 (Tex.Crim.App. 1984). The jury may infer intent or knowledge from the accused=s acts, words, and conduct. See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982); Castillo v. State, 899 S.W.2d 391, 393 (Tex.App. -Houston [14th Dist.] 1995 no pet.). However, evidence of actual bodily injury alone is insufficient to support the threat allegation. See McGowan, 664 S.W.2d at 357-58.

Here, Mr. Rodriguez=s testimony showed Appellant was driving a truck at a high rate of speed towards Mr. Rodriguez. Mr. Rodriguez tried to attract Appellant=s attention to get him to stop. Mr. Rodriguez was waving his baton with flashlight and blowing a whistle, but Appellant continued to drive towards Mr. Rodriguez. When Mr. Rodriguez realized that Appellant was not going to stop his vehicle, he tried to get away but was hit in the knee and swung to the ground. Mr. Rodriguez testified that when Appellant=s vehicle was coming at him he felt threatened and was in fear of serious bodily injury at that time. The evidence clearly showed that Mr. Rodriguez perceived Appellant=s conduct of accelerating his vehicle towards him as a threat prior to actual bodily injury. See St. Clair v. State, 26 S.W.3d 89, 97 (Tex.App.--Waco 2000, pet. ref=d) (defendant accelerating his car towards victim threatened victim with imminent bodily injury, even though the car stopped six feet from victim).

Based on the evidence, a rational jury could reasonably infer from Appellant=s conduct that he intentionally and knowingly threatened Mr. Rodriguez by driving towards him at a high rate of speed and by his refusal to stop, despite Mr. Rodriguez=s presence in front of Appellant=s path and Mr. Rodriguez=s attempts to gain Appellant=s attention in order to stop his entry into the parking lot. Even if Appellant did not intentionally threaten Mr. Rodriguez by use of his motor vehicle, the jury could infer that Appellant was aware his conduct was reasonably certain to cause a threat of imminent bodily injury to Mr. Rodriguez. We find that the evidence was legally sufficient to establish the essential elements of the charged offense. Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

May 22, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1] In his appeal, Appellant does not challenge the jury=s affirmative finding of use or exhibit of a deadly weapon during the commission of the charged offense.