Royland Owens v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-166-CR

ROYLAND OWENS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 2

Dallas County, Texas

Trial Court # F92-73802IHI

O P I N I O N

Appellant Owens appeals his conviction for aggravated assault of a police officer, for which he was sentenced to two years in the Texas Department of Criminal Justice.

Appellant waived a jury and entered a plea of not guilty to attempted capital murder in a trial before the court. After presentation of evidence, the trial court found Appellant guilty of the lesser-included offense of aggravated assault on a peace officer, and the court sentenced him to two years in prison. The trial court made an affirmative finding of the use or exhibition of a deadly weapon.

Appellant appeals on one point of error:

The trial court's finding that Appellant is guilty of the lesser-included offense of aggravated assault is not supported by the evidence.

In reviewing the sufficiency of the evidence, we must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789; Jones v. State, 833 S.W.2d 118, 22 (Tex. Crim. App. 1992).

Texas Penal Code 22.02 (Vernon 1994) provides six ways a person may commit the offense of aggravated assault:

1.Causing serious bodily injury to another;

2.Threatening a peace officer with a deadly weapon;

3.Threatening to cause bodily injury to a peace officer;

4.Causing bodily injury to a peace officer;

5.Causing bodily injury to a participant in a court proceeding; and

6.Using a deadly weapon.

On December 22, 1992, uniformed police officer Walton found Appellant walking behind a strip mall in North Dallas carrying a plastic jug filled with gasoline. Officer Walton stopped Appellant and asked him what he was doing. Appellant replied that he was walking to the gas station because his car had run out of gas. When Appellant did not appear at the gas station, Officer Walton returned to the strip mall and found Appellant sitting inside an incinerator behind the mall. Appellant's hands were concealed and Walton radioed for assistance. Appellant came out of the incinerator carrying the plastic jug of gasoline. Walton drew his gun, identified himself as a police officer, and told Appellant not to move. Appellant continued to approach Walton. Walton put his hand against Appellant's chest and backed him against a wall. Walton told him to stand still. Appellant began to struggle with Walton and doused the officer with gasoline. Walton was blinded by the gasoline but tried to subdue Appellant. When Walton opened his eyes he saw Appellant attempt to open a box of matches. Walton ran to his car, radioed for assistance, and followed Appellant. Other officers arrived and apprehended Appellant. Walton testified that he received medical treatment for burns on his back, that he smelled like gasoline for two days, and could taste it in his mouth.

Appellant contends the evidence is insufficient to support his conviction for aggravated assault on a police officer. Specifically, Appellant claims the evidence does not prove beyond a reasonable doubt that Officer Walton received serious bodily injury.

We hold that a rational trier of fact could have found beyond a reasonable doubt that Appellant threatened Officer Walton with a deadly weapon; threatened to cause bodily injury to Officer Walton; caused Officer Walton bodily injury; and used a deadly weapon in an assault on Officer Walton. The fact that Officer Walton did not suffer serious bodily injury does not render Appellant not guilty of aggravated assault on a police officer under the provisions of Texas Penal Code 22.02 (Vernon 1994).

Appellant's point is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 23, 1995

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