Lacy Brown v. The State of Texas--Appeal from 122nd District Court of Galveston County

11th Court of Appeals

Eastland, Texas

Opinion

Lacy Brown

Appellant

Vs. Nos. 11-03-00253-CR & 11-03-00254-CR -- Appeals from Galveston County

State of Texas

Appellee

The jury convicted Lacy Brown of aggravated assault on a public servant.[1] The jury also convicted appellant of aggravated assault.[2] The trial court sentenced appellant to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice in each cause. Appellant appeals both convictions. We affirm the judgment of the trial court in Cause No. 11-03-00253-CR, and we reverse and render a judgment of acquittal in Cause No. 11-03-00254-CR.

On the night of August 31, 2002, a dispute arose between appellant and his wife, Kimberly Duchane, over whether they would return home that night after visiting Duchane=s aunt in La Marque. Appellant eventually forced his wife and daughter into their car. As appellant began to drive away, Officer Marcus Cravens of the La Marque Police Department arrived in response to a disturbance call. When Officer Cravens arrived, he told appellant to stop the car. Appellant did not stop but proceeded to drive away. Officer Cravens chased him through the streets of La Marque. Two other police officers involved in the chase were Officer Matthew Wentzel and Officer Jeffrey A. Tyson, both with the La Marque Police Department. During the course of the chase, appellant=s vehicle struck another vehicle driven by Jesus Aviles. Eventually, appellant stopped his vehicle, got out, and began running away from the officers. A foot pursuit ensued. Finally, appellant was apprehended and arrested by Officers Tyson and Wentzel.

Appellant was charged with endangering a child and evading arrest, and he pleaded guilty to those two offenses. The State also charged appellant with the aggravated assault of Officer Cravens, Officer Wentzel, Officer Tyson, and Aviles. Appellant was found not guilty of assaulting Officer Cravens and Officer Wentzel but was found guilty of assaulting Officer Tyson and Aviles.

Appellant presents four issues on appeal. In his first issue, appellant asserts that the evidence was insufficient to convict him of the assault of Officer Tyson because Officer Tyson was not performing the duty described in the indictment. While appellant does not specify whether the evidence is legally sufficient or factually sufficient, he argues only that there was no evidence on this issue and asks this court for an acquittal. An acquittal is the appropriate remedy for legal insufficiency. See Collier v. State, 999 S.W.2d 779, 786 (Tex.Cr.App.1999). Therefore, we have treated appellant=s first issue as a claim that the evidence was legally insufficient to support the finding that Officer Tyson was attempting to stop appellant Aon traffic.@

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Cr.App.2000).

A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. TEX. PENAL CODE ANN. ' 22.01(a)(2) (Vernon Supp. 2004 - 2005). A person commits the offense of aggravated assault if the person uses or exhibits a deadly weapon during the commission of an assault. TEX. PENAL CODE ANN. ' 22.02(a)(2) (Vernon Supp. 2004 - 2005). Aggravated assault is a felony of the first degree if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. TEX. PENAL CODE ANN. ' 22.02(b)(2) (Vernon Supp. 2004 - 2005).

Appellant was indicted for intentionally or knowingly threatening, with imminent bodily injury, a public servant in the lawful discharge of his official duty. The phrase Aon traffic@ was included in the indictment to describe the type of duty Officer Tyson was discharging. Although there is no precise definition of the term Aon traffic@ in the record, for purposes of this appeal, we will agree with appellant that it relates to the enforcement of traffic laws. There is sufficient evidence in the record that appellant committed numerous traffic violations, including violating the speed limit, not stopping at red lights, and refusing to pull over when police officers were in pursuit and the lights of their vehicles were activated. We find that, after reviewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have found that, when Officer Tyson tried to stop appellant, the officer was lawfully discharging his duty to enforce traffic laws. Appellant=s first issue on appeal is overruled.

In appellant=s second issue on appeal, he argues that there is insufficient evidence that he intentionally or knowingly threatened Aviles with imminent bodily injury. We agree.

TEX. PENAL CODE ANN. ' 6.03 (Vernon 2003) provides in relevant part:

(a) A 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.

(b) A 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.

Again, appellant has not set out whether he claims that the evidence is legally or factually insufficient. However, as in appellant=s first issue on appeal, his arguments are in the nature of legal insufficiency claims; and he again asks for us to reverse and render a judgment of acquittal on the issue. We will treat the issue as one claiming legal insufficiency of the evidence. See Collier v. State, supra.

Before a jury could find appellant guilty of intentionally or knowingly assaulting Aviles, the State has to produce legally sufficient evidence of appellant=s state of mind that either appellant=s conscious objective was to threaten Aviles with imminent bodily injury or that appellant was aware that his conduct was reasonably certain to threaten Aviles with imminent bodily injury. It is not enough that appellant was either reckless or negligent.

The State claims that there is enough circumstantial evidence to infer that appellant=s conduct was intentional or knowing. We disagree. After a thorough review of the record, we find no evidence, circumstantial or otherwise, that relates to appellant=s state of mind concerning Aviles specifically. It is undisputed that appellant was driving dangerously and recklessly throughout the chase; however, the State needed to prove that either appellant=s conscious objective was to threaten Aviles with imminent bodily injury or that appellant was reasonably certain that he would threaten Aviles with imminent bodily injury.

Aviles did not see appellant=s car until after it had already passed him by, and he did not know the nature of appellant=s conduct. At one point during cross-examination, Aviles admitted that he did not think appellant=s conduct was intentional:

Q: Do you think it was an accident? He was trying to go around you and accidentally hit you, correct? He didn=t intentionally hit you, right?

A: Correct. I don=t know if he did or not.

* * *

Q: Mr. Aviles, what I=m getting at is he didn=t intentionally threaten you, right?

A: No, not intentionally; but when his vehicle hit me, yeah, I was threatened then.

Q: You felt threatened?

A: Right.

Although Aviles Afelt threatened@ after his car was already hit, this testimony is not evidence of the nature of appellant=s conduct during the alleged assault. The issue is not how the victim felt after the assault because assault by threat under Section 22.01(a)(2) is a Anature of conduct@ offense unlike assault under TEX. PENAL CODE ANN. ' 22.01(a)(1) (Vernon Supp. 2004 - 2005) where a defendant actually causes bodily injury. Guzman v. State, 988 S.W.2d 884, 887 (Tex.App. - Corpus Christi 1999, no pet=n). The focus is not on Aviles=s perception but upon whether appellant intentionally or knowingly caused in Aviles a reasonable apprehension of imminent bodily injury. In re S.B., 117 S.W.3d 443 (Tex.App. - Fort Worth 2003, no pet=n).

The State produced sufficient circumstantial evidence that appellant either intended to threaten Officer Tyson with imminent bodily injury or was reasonably certain that he would threaten him with imminent bodily injury. In fact, Officer Tyson testified that appellant drove his vehicle directly at him while he was standing outside his patrol car, forcing Officer Tyson to have to jump out of the way to avoid being hit. There is no similar testimony from Aviles or from any other witness who saw appellant hit Aviles=s vehicle. While there is ample evidence to show that appel-lant acted either recklessly or negligently toward Aviles, that is not the offense with which the State charged him. This court concludes that the evidence is legally insufficient to show that appellant acted either intentionally or knowingly regarding threats of bodily injury toward Aviles. We sustain appellant=s second issue on appeal.

In appellant=s third issue on appeal, he asserts that the trial court erred when it admitted evidence of a prior conviction of burglary of a motor vehicle. Appellant argues that this error prevented him from testifying at the guilt/innocence stage of his trial because, if he testified, he would have Aexposed [himself] to a damaging disclosure.@

A trial court has broad discretion in ruling on the admissibility of evidence. See Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.2001). As such, the standard of review for evidentiary decisions by the trial court is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex.Cr.App.1999). We will not disturb the trial court=s ruling as long as it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991).

As a general rule, prior convictions are admissible to impeach the credibility of a witness if the crime was a felony or involved moral turpitude and if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party. TEX.R.EVID. 609(a). The Court of Criminal Appeals has articulated several factors that are to be used when determining if the probative value of admitting evidence of a prior conviction outweighs its prejudicial effect. These factors include the impeachment value of the prior crime, the temporal proximity of the past crime relative to the charged offense and the witness= subsequent history, the similarity between the past crime and the offense being prosecuted, the importance of the defendant=s testimony, and the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex.Cr.App.1992). The record reflects that the trial court thoughtfully analyzed the admissibility of the prior conviction in light of these factors. We find that, by considering these factors carefully, the trial court did not abuse its discretion in admitting evidence of the prior conviction. We overrule appellant=s third issue on appeal.

Finally, in appellant=s fourth issue on appeal, he argues that the jury charge was deficient because it did not contain an instruction to the jury on the meaning of proof beyond a reasonable doubt. The Court of Criminal Appeals has ruled that such a definition is no longer required. Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000). Appellant acknowledges this ruling, but disagrees with it. This court, however, is not in a position to disagree with the Court of Criminal Appeals. Appellant=s fourth issue on appeal is overruled.

The judgment of the trial court in Cause No. 11-03-00253-CR (aggravated assault of a public servant) is affirmed. The judgment in Cause No. 11-03-00254-CR (aggravated assault) is reversed, and we render a judgment of acquittal.

JIM R. WRIGHT

JUSTICE

October 28, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Cause No. 11-03-00253-CR.

[2]Cause No. 11-03-00254-CR.