Michael Gardner v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00294-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL GARDNER, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury found Appellant Michael Gardner guilty of aggravated assault with a deadly weapon. Appellant pleaded true to the enhancement allegation in the indictment. The jury heard evidence of a felony conviction other than that alleged for enhancement, together with proof of eight state jail felony and misdemeanor convictions, including convictions for assault, theft, terroristic threat, and forgery. The jury assessed Appellant s punishment at imprisonment for thirty years. Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.

Background

On February 10, 2005, Tyler Police Officer Kevin Bright was assigned to the North Tyler Police Substation as a vehicle crimes investigator. His assignment did not require that he regularly wear a police uniform.

When on that date Officer Bright drove a white pickup into the substation parking lot, he saw two other cars in the lot parked near the door. One was parked in a place reserved for the handicapped, the other at an angle behind it with its door open. He saw a female at the door of the station apparently trying to get in and a male walking slowly toward her from one of the parked cars. Getting out of his pickup, Officer Bright could hear the two people arguing, and he could also hear the motor running in the automobile with the door open. As Officer Bright approached the couple, he asked Appellant to stop. Officer Bright testified that Appellant stared at him for a moment, jumped in his car, and rapidly drove directly at him. In order to avoid being run over by Appellant s car, Officer Bright pushed off with both hands on the hood of Appellant s car and vaulted to the right side of the vehicle. Officer Bright landed on his feet and suffered no injury. Appellant sped out of the parking lot and disappeared into the traffic on Martin Luther King Boulevard. Officer Bright testified that Appellant appeared intent on hitting him, because he easily could have exited the parking lot without driving straight toward him.

Tyler Police Officer Richard Smith testified that he came to the substation door to let the female in because the door was stuck, and he witnessed the events unfolding in the parking lot. As Officer Smith came out of the substation, he saw Appellant look at him, look at Officer Bright, and get into his car. He told Appellant to hold on, come back. Officer Bright had crossed in front of Appellant s car and stood at its left front. Appellant drove rapidly forward moving or swerving his vehicle toward Officer Bright. When Officer Smith saw Officer Bright rebound suddenly off of Appellant s car, he believed Officer Bright had been hit and probably injured by Appellant s vehicle. Officer Smith testified that, in the manner of its use, Appellant s auto was capable of causing death or serious bodily injury.

Appellant did not testify nor did he present any witnesses.

Legal and Factual Sufficiency

Appellant contends that the evidence is neither legally nor factually sufficient to support his conviction.

Standard of Review

In reviewing a legal sufficiency challenge, an appellate court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all of the essential elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency review, the court should view the evidence in a neutral light and ask whether a jury was rationally justified in its finding of guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 413-14 (Tex. Crim. App. 2006). The court should not reverse a case because of the factual insufficiency of the evidence unless it can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. at 417. The difference between the two standards is that the [legal sufficiency standard] requires the reviewing court to defer to the jury s credibility and weight determinations while the [standard for factual sufficiency] permits the reviewing court to substitute its judgment for the jury s, albeit to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Applicable Law

A person commits an assault if the person intentionally or knowingly threatens another with imminent bodily injury.... Tex. Penal Code Ann. 22.01(a)(2) (Vernon Supp. 2006). To prove aggravated assault, the State must prove that the actor committed an assault as defined in Section 22.01 and that the person (1) caused serious bodily injury to another, including the person s spouse; or (2) used or exhibited a deadly weapon during the commission of the assault. Tex. Penal Code Ann. 22.02(a) (Vernon Supp. 2006).

The culpable mental state in the defining section of the Penal Code must be proved beyond a reasonable doubt and may not be left to speculation or surmise. LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986). Ordinarily, the defendant s culpable mental state may be inferred from the defendant s conduct and the surrounding circumstances. Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984). Proof of a culpable mental state, in fact, almost invariably depends on the circumstantial evidence. Lee v. State, 21 S.W.3d 532, 539 (Tex. App. Tyler 2000, pet. ref d).

A deadly weapon can be anything in the manner of its use or intended use [that] is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17)(B) (Vernon Supp. 2006); Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004). An intent to achieve a specific purpose is not necessary to support a finding that an object was a deadly weapon in the manner of its use. Walker v. State, 897 S.W.2d 812, 814 (Tex. Crim. App. 1995).

Discussion

Appellant contends that the evidence is legally and factually insufficient because there is no direct evidence of Appellant s intent. He argues that the only evidence offered by the State regarding intent is the interpretation of his actions by the two officers who testified, neither of whom had spoken with him before charges were filed.

As is usually the case, there is no direct evidence of Appellant s culpable mental state. But Appellant s actions and the surrounding circumstances provide sufficient proof from which the jury might reasonably infer that Appellant acted intentionally or knowingly. When Appellant got back in his car, Officer Bright was not directly in front of Appellant s vehicle, but slightly to the side. Nevertheless, Officer Bright was in plain view. Instead of trying to avoid the officer, Appellant rapidly moved or swerved his car directly at him. In pushing or vaulting away from Appellant s vehicle to avoid being run over, Officer Bright s hands reached almost to the center of the car s hood, indicating that, at that moment, he was almost directly in Appellant s path. Both officers testified that Appellant easily could have driven out of the parking lot without driving toward Officer Bright. After almost driving over the officer, Appellant did not stop but fled from the parking lot. Moreover, the jury had the benefit of the opinion testimony of Officer Smith, who testified that he was a police officer of thirty six years experience and that he had investigated many cases of aggravated assault. Over Appellant s objection, the prosecutor asked, [B]ased on what you observed, based on your training and experience, back in February 10th of 2005, did the defendant commit the offense of aggravated assault against Kevin Bright in the parking lot that day? 1 Officer Smith answered, Yes, sir. On redirect examination, Officer Smith, without objection, reiterated his opinion that Appellant had committed aggravated assault.

We conclude there was sufficient evidence for a rational trier of fact to have found all the elements of the offense charged beyond a reasonable doubt. The State s evidence was uncontradicted. The evidence was both legally and factually sufficient.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered August 1, 2007.

Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)

1 The expression of guilt or innocence in any case is a conclusion to be reached by the jury based upon the instruction given them in the court s charge, coupled with the evidence admitted by the judge through the course of the trial. Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974). No witness is competent to voice an opinion as to guilt or innocence. Id.; Lovell v. State, No. 12-04-00291-CR, 2006 WL 1916950, at *2 (Tex. App. Tyler 2006, pet. ref d) (mem. op., not designated for publication).