Christopher Don Kimbell v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-02-045-CR

CHRISTOPHER DON KIMBELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # F35329

O P I N I O N

A jury convicted Christopher Don Kimbell of aggravated assault with a deadly weapon and assessed punishment at twelve years in prison. On appeal, Kimbell complains that (1) the trial court erred in admitting evidence that he brandished a knife during the alleged assault, and (2) the evidence is factually insufficient to convict him. We will affirm the judgment.

Facts

Brian Ledeboer and Jamie Hackney, minors, testified at trial that Kimbell encountered them on a highway. Ledeboer and Hackney were in Ledeboer s vehicle and Kimbell was in another. They said Kimbell cursed them and, holding up a knife, threatened to kill them. Kimbell followed them and eventually rammed his vehicle into the back of their s. Ledeboer stopped his vehicle, as did Kimbell, who exited his vehicle holding the knife. Ledeboer sped off. Kimbell did not follow, but instead called 9-1-1 to report the incident.

Kimbell s defense (he did not testify at trial) was that Ledeboer had cut him off on the highway, and Kimbell had followed to get Ledeboer s license plate number. He said he pulled the knife only to scare the boys. Kimbell said that, when the two cars were stopped, Ledeboer put his vehicle into reverse and rammed Kimbell s vehicle.

The law enforcement officers who investigated at the scene interviewed the three males, examined the physical evidence, including tire marks, and found a knife in Kimbell s vehicle matching the description of that provided by the minors. They arrested Kimbell.

Evidence of the Knife

The offense alleged was that Kimbell committed the assault with his vehicle. But the State also wanted to introduce testimony about the knife. Kimbell filed a pre-trial motion in limine complaining that evidence about the knife was irrelevant and would be more prejudicial than probative. The court denied the motion. During the State s opening statement, defense counsel objected to any reference to the knife, which was overruled. Defense counsel did not obtain a running objection. When, during trial, testimony was elicited from Ledeboer and Hackney about the knife, both on direct and cross examination, there was no objection.

This complaint is not preserved for our review. Tex. R. App. P. 33.1(a). Neither the motion in limine nor the objection during the State s opening statement properly preserved the objection. It is "absolutely necessary" that an objection be made when the evidence is actually offered during trial. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App.), cert. denied, 513 U.S. 1060, 115 S. Ct. 671, 130 L. Ed. 2d 604 (1994) (citing Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App.), cert. denied, 472 U.S. 1009, 105 S. Ct. 2704, 86 L. Ed. 2d 720 (1985)).

Finding that the complaint is not preserved, we overrule the issue.

Factual Sufficiency of the Evidence

Kimbell complains that the evidence fails to sufficiently prove that (a) he intentionally or knowingly threatened the minors with imminent bodily injury, and (b) Kimbell s vehicle was a deadly weapon. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Threat to Injure:

The State accused Kimbell of intentionally or knowingly threatening Ledeboer with imminent bodily injury. Tex. Pen. Code Ann. 22.01(a)(2) (Vernon Supp. 2002). Ledeboer and Hackney both testified that Kimbell rammed their vehicle with his while the vehicles were in motion. Hackney testified that he heard the engine of Kimbell s vehicle accelerating before impact, and that [w]e felt him hit the back of the car hard. He said that after impact he felt the car was unstable. He said he had a whiplash for a couple of days. Ledeboer testified that he heard Kimbell s vehicle revving just before impact, his head went back at impact, and his head and neck hurt for a couple of days afterward.

The jury assessed the credibility of the State s witnesses. The testimony that Kimbell accelerated before impact supports an inference that he intended to ram Ledeboer s vehicle. Furthermore, the evidence supports an inference that the vehicles struck with sufficient force to potentially cause the vehicle with the minors to go out of control and wreck, and Kimbell was aware of that. Therefore, after a neutral review of all the evidence, both for and against the finding, we conclude that the evidence that Kimbell intentionally and knowingly threatened Ledeboer with imminent bodily injury is not so obviously weak as to undermine confidence in the jury s determination that he did, nor is this evidence greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

Deadly Weapon:

The State alleged that, in committing the threat to assault, Kimbell used or exhibited a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. 22.02(a)(2) (Vernon 1994). A deadly weapon, as applied here, 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)(B) (Vernon 1997). The State must prove the requirements of subsection B, i.e., a deadly weapon by usage. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). The defendant need not intend to cause death or serious bodily injury, only to use or intend to use the object in a manner that is capable of such a result. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Thus, conduct that threatens deadly force may be sufficient even though the defendant has no intention of actually using deadly force. Id. For example, in McCain, the Court found that a butcher knife, carried in the defendant s back pocket and visible to the victim of the aggravated robbery, was a deadly weapon because the defendant may have intended to use it in a manner capable of causing death or serious bodily injury, and because it was exhibited by being partially exposed. Id.

For the same evidentiary reasons as in threat to injure above, after a neutral review of all the evidence, both for and against the finding, we conclude that the proof that Kimbell used or intended to use his vehicle in a manner capable of causing serious bodily injury is not so obviously weak as to undermine confidence in the jury s determination that he did, nor is this evidence greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

Conclusion:

We overrule Kimbell s factual-sufficiency issue.

Conclusion

Having overruled Kimbell s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed January 8, 2003

Do not publish

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