Campbell, Anthony Bernard v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed September 20, 2005

Affirmedand Memorandum Opinion filed September 20, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00227-CR

NO. 14-04-00228-CR

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ANTHONY BERNARD CAMPBELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 900,100 & 915,333

M E M O R A N D U M O P I N I O N

Appellant Anthony Bernard Campbell was convicted of two counts of aggravated assault against a public servant. In three issues, he argues that the evidence is legally and factually insufficient to support the verdict and that the trial court erred in refusing appellant=s requested jury instructions on the lesser-included offense of deadly conduct. We affirm.

Background

On July 6, 2001, Officers Leonard Smith and Jason Holt of the Houston Police Department were patrolling an area of southeast Houston on bicycles. They observed what they believed was a narcotics transaction between appellant and three other men in the parking lot of a strip center. The officers also noticed a strong odor of marijuana.

When the men saw the officers, they started walking away. Appellant walked to his vehicle, which was running, got in, and shut the door. While Officer Holt detained the other three men, Officer Smith knocked on the window of appellant=s vehicle and asked appellant to turn off the vehicle and give Officer Smith his identification. Appellant did not comply, so Officer Smith repeated his request. Appellant then slightly rolled down the window and handed Officer Smith his identification. Officer Smith took the identification and again asked appellant to stop the engine and get out of the car. Appellant then cracked the door open and abruptly began driving the vehicle in reverse. The side of the door hit Officer Smith in the chest, and he grabbed onto it to avoid being knocked under the vehicle.

Officer Holt saw the commotion, ran toward the vehicle, and jumped into the open driver-side door. Appellant continued driving in reverse. He hit a parked a car and then drove forward. A struggle ensued between Officer Holt and appellant, with appellant attempting to put the vehicle in Adrive@ and Officer Holt attempting to put it in Apark.@ As a result, the vehicle lurched across the parking lot, alternately stopping and moving forward. Fearing that the vehicle would exit the parking lot onto Cullen, which is a busy street, Officer Smith, while still hanging onto the driver-side door, shot appellant once in the chest. Officer Holt was then immediately able to put the vehicle in park.

A jury found appellant guilty of two counts of aggravated assault against a public servant. After finding an enhancement paragraph true, the trial court sentenced appellant to fifty years=imprisonment. This appeal followed.

Sufficiency of the Evidence

In his first two issues, appellant challenges the legal and factual sufficiency of the evidence. Specifically, appellant argues that the evidence is legally and factually insufficient to establish that appellant (1) used the motor vehicle as a deadly weapon, (2) intentionally or knowingly threatened the two officers, and (3) knew that Officer Holt was a public servant.

In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 133 n.13.

In conducting a factual sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We may find the verdict is factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met. Id. at 484B85. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain, 958 S.W.2d at 407.

Deadly Weapon Finding

Appellant argues that the evidence is legally and factually insufficient to support the deadly weapon finding. As applied to appellant=s case, a person commits the offense of aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury while using or exhibiting a deadly weapon. Tex. Pen. Code Ann. '' 22.01, 22.02 (Vernon Supp. 2004B2005). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id.' 1.07(a)(17). Thus, an automobile can be a deadly weapon if it is driven in a manner capable of causing death or serious bodily injury. Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995).

The State presented evidence that appellant reversed his vehicle and almost knocked Officer Smith down. Appellant then drove his vehicle toward a busy street while Officer Smith hung onto the door and while Officer Holt had his legs partially sticking out of the vehicle. There is no question that the manner in which appellant drove his vehicle was capable of causing death or serious bodily injury to Officers Smith and Holt. Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that the vehicle as used by appellant was a deadly weapon. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding that the vehicle as used by appellant was a deadly weapon. Therefore, the evidence is legally and factually sufficient to support the deadly weapon finding.

Intent

Appellant also contends that the evidence is legally and factually insufficient to establish that he intentionally or knowingly threatened the officers with imminent bodily injury. A person acts intentionally 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. Code Ann. ' 6.03(a) (Vernon 2003). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. ' 6.03(b).

Appellant argues that because he did not verbally threaten the officers and because he only recklessly exposed the officers to injury, he did not intentionally or knowingly threaten the officers. We disagree. The State presented evidence that appellant drove his car toward a busy street knowing that two police officers were only partially in the car and after ignoring repeated requests to stop the car. A jury could reasonably have concluded either that it was appellant=s conscious objective or desire to threaten the officers with imminent bodily injury or that appellant was reasonably certain that driving toward a busy street with two police officers hanging onto his vehicle would threaten the officers with imminent bodily injury. Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly threatened the officers with imminent bodily injury. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding that appellant intentionally or knowingly threatened the officers with imminent bodily injury. Therefore, the evidence is legally and factually sufficient to establish that appellant intentionally or knowingly threatened the two officers.

Knowledge that Officer Holt Was a Public Servant

An offense of aggravated assault increases from a second degree felony to a first degree felony if the offense is committed against someone the actor knows is a public servant while the public servant is lawfully discharging an official duty. Id.' 22.02(b) (Vernon Supp. 2004B2005). Further, the actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge. Id. ' 22.02(c).

Appellant argues that the evidence is legally and factually insufficient to support the aggravated assault conviction of Officer Holt because there is no evidence that appellant knew he was a public servant or ever saw Officer Holt=s uniform. Appellant had his driver=s seat fully reclined, but he was sitting upright while Officer Smith was hanging onto the door. Officer Holt apparently dove into the vehicle and landed between appellant=s back and the fully reclined seat. Appellant argues that because Officer Holt was behind him during their struggle for control of the vehicle, appellant argues there is no evidence that he ever saw Officer Holt=s uniform or knew he was a police officer. However, there was testimony that appellant and the three other men immediately scattered as soon as the officers, who were both in full uniform and riding marked police bikes, approached. Further, Officer Holt testified that he had his arms around appellant after he dove into the car, which would indicate that appellant saw the sleeves of Officer Holt=s uniform. There was also evidence that appellant and Officer Holt struggled with the gear shift inside the car, with Officer Holt yelling at appellant to stop the car and to stop resisting. Finally, there is no evidence that appellant did not see Officer Holt. The jury could infer from this evidence that appellant knew that Officer Holt was a police officer.

Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant knew Officer Holt was a public servant. Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding that appellant knew Officer Holt was a public servant. Therefore, the evidence is legally and factually sufficient to establish that appellant knew Officer Holt was a public servant.

We overrule appellant=s first and second issues.

Lesser-Included Offense Instruction

In his third issue, appellant argues that the trial court erred by not instructing the jury on the lesser-included offense of deadly conduct. A two-prong test must be met before a jury charge instruction on a lesser-included offense must be given: (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 would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim. App. 1993).

We must therefore first determine whether the offense of deadly conduct is included within the proof necessary to establish the offense of aggravated assault as charged in appellant=s case. Appellant was charged by separate indictments with two counts of aggravated assault. The language in each indictment is identical except for the complainant-officer=s name. In pertinent part, the indictments allege that appellant did Aintentionally and knowingly threaten with imminent bodily injury [complainant] . . . by using and exhibiting a deadly weapon, namely, a motor vehicle.@ Appellant requested and was denied an instruction for deadly conduct, which a person commits if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. See Tex. Pen. Code Ann. ' 22.05 (Vernon 2003).

In Bell v. State, 693 S.W.2d 434, 438B39 (Tex. Crim. App. 1985), the Court of Criminal Appeals held that the offense of reckless conduct, which is the former name of the offense of deadly conduct, is a lesser-included offense of aggravated assault as it was charged in that case. In arriving at this holding, the court stated the following:

Patently, threatening another with imminent bodily injury is engaging in conduct. When that threat is accomplished by the use of a deadly weapon, by definition the victim is exposed to the deadly character of the weapon and the inherent risk of serious bodily injury. The danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense. It follows, therefore, that proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury.

Id. (internal quotation marks omitted). The indictment in Bell is substantially similar to the indictments in the instant case.[1] See id. at 437. Accordingly, we hold that deadly conduct is included within the proof necessary to establish the offense of aggravated assault as charged against appellant. The first prong of the Rousseau test is met.

We now must determine whether there is some evidence in the record that would permit a jury to rationally find that appellant is guilty only of the lesser-included offense of deadly conduct. Rousseau, 855 S.W.2d at 673. In other words, there must be some evidence from which a rational jury could acquit appellant of aggravated assault while convicting him of deadly conduct. See Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). In making this determination, we review all of the evidence presented at trial, but we do not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id.

Appellant maintains that he only acted recklessly (a required element of deadly conduct) and not intentionally or knowingly (a required element of aggravated assault). As noted above, a person acts intentionally 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. Code Ann. ' 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. ' 6.03(b). Finally, a person acts recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. ' 6.03(c).

Appellant neither testified nor presented testimony from anyone who was at the scene of the incident.[2] The State presented Officers Smith and Holt, who both testified that Officer Smith was hanging onto appellant=s car while appellant erratically drove around the parking lot; both officers also testified that Officer Holt was only partially in the vehicle while it was moving. The jury was entitled to infer from the officers= testimony that appellant knowingly or intentionally threatened the officers with imminent bodily injury.

In support of his argument that he only acted recklessly, appellant points to Officer Holt=s testimony in response to the question, A[W]hat specifically about the way that this car was being operated and driven made you believe that it was a deadly weapon to Officer Smith?@ Officer Holt answered as follows:

In my opinion [appellant=s] disregard for my partner=s safety and the safety of anyone that could have been behind him at that time. He was driving without regard to anyone behind him and faster than a reasonable person would back out of a parking space in a storefront area like that. No reasonable person would back out of a storefront in that speed in that manner with someone hanging on the side of the car without knowing that they are going to hurt somebody.

This testimony supports the conclusion that appellant acted knowingly, in that appellant would have been reasonably certain that someone would be threatened with bodily injury as a result of his conduct. See id. ' 6.03(b). In any event, Officer Holt=s testimony does not support that appellant only acted recklessly.

We hold that there was no evidence upon which a jury could rationally find that appellant was guilty only of deadly conduct and not of aggravated assault. Accordingly, appellant has not met the second prong of the Rousseau test; therefore, the trial court was not required to instruct the jury on the lesser-included offense of deadly conduct. Thus, we overrule appellant=s third issue.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed September 20, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] In Bell, the indictment alleged that the defendant A>did then and there knowingly and intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten [complainant] with imminent bodily injury by the use of said deadly weapon.=@ Bell, 693 S.W.2d at 437.

[2] Appellant did call DeArtis Scott, who apparently was at the scene, but Scott invoked his Fifth Amendment privilege against self-incrimination and thus offered no substantive testimony.