Brown v. State

Full title: ALLAN RAY BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Feb 21, 2007

No. 10-05-00374-CR (Tex. App. Feb. 21, 2007)

Opinion

No. 10-05-00374-CR

February 21, 2007. DO NOT PUBLISH.

Appeal from the 54th District Court, McLennan County, Texas Trial Court No. 2005-1163-C.

MEMORANDUM OPINION

FELIPE REYNA.

A jury convicted Allan Ray Brown of aggravated assault on a public servant and evading arrest in a vehicle after being previously convicted of evading arrest. The jury assessed his punishment at sixty years' imprisonment on each count. Brown contends in five issues that: (1) the evidence is factually insufficient to prove that Brown's car "rammed" a deputy marshal's vehicle; (2) the court abused its discretion by admitting evidence at punishment of unadjudicated extraneous offenses he allegedly committed as a juvenile; (3) the court abused its discretion by admitting his stipulation that he was previously convicted of evading arrest; (4) the court abused its discretion by refusing to permit a private investigator to testify as an expert "concerning the interpretation of the damage to the respective vehicles"; and (5) the evidence is factually insufficient to prove that he used or exhibited a deadly weapon. We will affirm.

Physical Contact

Brown contends in his first issue that the evidence is factually insufficient to prove that his car "rammed" the vehicle operated by the deputy marshal who is the complainant in the indictment. When conducting a factual-sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in inferences or confine our view to evidence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id. If we conclude that the evidence is factually insufficient, we must clearly state why we have reached that conclusion. Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). The aggravated assault count of the indictment alleges that Brown injured Deputy United States Marshal Dan Phillips "by causing a vehicle to hit him" and threatened Phillips with imminent bodily injury "by driving a vehicle toward him." Phillips testified that he was leading a group of officers from various agencies in an effort to serve an arrest warrant on Brown on the date in question. Occupants of the house where the officers believed Brown to be located told the officers that Brown had recently left to take the owner of the house, Marilyn Haliburton, to run some errands. The officers decided to wait for Brown and Haliburton to return. One officer remained on the front porch, and another waited on the other side of the driveway somewhat hidden behind a large bush at the end of the driveway near the street. Phillips positioned his unmarked Ford Explorer in a parking lot across the street. Other officers patrolled in unmarked vehicles in the neighborhood. Phillips saw Brown and Haliburton approaching in Haliburton's Lincoln Town Car and radioed the other officers. According to Phillips, Brown pulled Haliburton's car into the driveway. At that time, the two deputy marshals who remained on the premises approached the car from each side with weapons drawn. They identified themselves and ordered Brown to get out of the car. Phillips drove the Explorer across the street and stopped it about one or two feet behind the car to prevent Brown from fleeing. Phillips opened the door and stepped out with one foot, drawing his gun at the same time. Brown put the car in reverse and hit the Explorer pushing it back "maybe a foot, two-foot, but the initial jar was good." Phillips got back in the Explorer and put his foot on the brake, trying to slow Brown. Phillips debated whether he should push back and decided to ease off the brake. According to Phillips, once Brown "started pushing back the second time in my vehicle, it basically just pushed me out of the way into the street." The prosecutor then asked Phillips whether there was a second impact, which Phillips said there was.

At the point of the second impact, he had cut his wheel all the way to the right so that his wheels were facing to the right. His vehicle came back hard and the side of his vehicle, the back side of his vehicle — I basically just had a view of him coming down in a reverse position dragging down the front of my vehicle, so I remember standing — sitting there holding my gun pointed at him, and we were probably — we were closer than you and I were because it was the front of my vehicle and his driver's window was right there. . . .

Brown then fled from Phillips and the other officers by driving down the street in reverse at a speed approaching what Phillips estimated to be 45 miles per hour. Phillips pursued him, and officers in other vehicles blocked Brown's escape route from behind. Brown was forced to stop at the end of the block where he was apprehended. Phillips explained that, when Brown cut the wheel and the driver's side of the Town Car collided with the front of the Explorer, the passenger side of the Town Car went over the curb at the end of the driveway on the side where the large bush was growing. Phillips testified that his knee was only "a little sore" that day but hurt quite a bit more the next day. Deputy Marshal Chris Casson was the officer who positioned himself beside the driveway behind the bush. He testified, consistent with Phillips, that as Brown pulled into Haliburton's driveway he and the other deputy marshal approached each side of the car. They each identified themselves as "Police, U.S. Marshal," drew their weapons, and ordered Brown out of the car. Casson testified that Phillips pulled into the driveway behind Brown with the Explorer "halfway parked in the driveway, halfway out in the street." Texas Ranger Matt Cawthon also participated in Brown's apprehension. He did not see the encounter at Haliburton's driveway. On cross-examination, Cawthon examined a picture of the rear of the Town Car and described how the picture depicts slight damage on the rear bumper near the license plate, which he characterized as "nothing significant." Waco Police Officer Ryan Holt was also involved in the investigation of the circumstances surrounding Brown's apprehension. He too did not see the encounter at Haliburton's driveway. Holt prepared an accident report that day regarding the collision between the Town Car and the Explorer. In this report, Holt noted Phillips's statements that there were two "rammings" by Brown at the driveway and that he was "not injured." Haliburton testified for the defense. According to her, Brown was not able to pull into the driveway because someone rammed the driver's side of the Town Car with a "red Ford Escort" just as Brown was about to pull in. However, the State impeached Haliburton with a statement she had made to Phillips on the date of the occurrence in which she told him that Brown "put the car in reverse and slammed into the Explorer." Haliburton's daughter likewise testified that Phillips crashed into the side of the Town Car before Brown could pull into the driveway. She conceded in her testimony that she has a previous theft conviction. On cross-examination, she conceded that she also has a conviction for hindering apprehension. Brown contends the evidence is factually insufficient to prove he "rammed" the Explorer with the Town Car because: (1) the photographs in evidence depict no significant damage to the rear of the Town Car; (2) the presence of the bush at the end of the driveway and the lack of evidence of skid marks along the curb or "disturbance of the dirt, tree limbs or other signs of a car traveling in this area" calls into question Phillips's explanation for how the Town Car exited the driveway by turning to collide with the front of the Explorer and driving over the edge of the curb in that area; (3) Phillips's credibility is lessened because he reported on the date of the occurrence that he was not injured; and (4) Haliburton and her daughter both testified that the collision between the vehicles happened differently than the State alleges and Phillips claims. Brown's primary challenge to the factual sufficiency of the evidence is that the physical evidence is not consistent with Phillips's testimony that the Town Car "rammed" the Explorer. However, we "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). The question we must decide is whether the State offered factually sufficient evidence to prove the allegations of the indictment, not Phillips's characterization of the force of impact. See Gollihar v. State, 46 S.W.3d 243, 253, 255 (Tex.Crim.App. 2001) (sufficiency of the evidence is measured against hypothetically correct jury charge which "has its basis in the indictment allegations"). Here, the indictment alleges that Brown "hit" the Explorer with the Town Car. While the physical evidence may not be wholly consistent with a "ramming," the photograph depicting some damage to the rear bumper of the Town Car and Phillips's testimony regarding the close proximity between the vehicles before the Town Car backed into the Explorer constitute evidence from which the jury could find that the Town Car hit the Explorer with enough force to push it into the roadway but did not "crash" into the Explorer because the vehicles were too close together. The jury could likewise review the photographic evidence and the witnesses' testimony and conclude that the Explorer was pushed far enough into the street that the Town Car only grazed the curb as Brown turned and the driver's side of the Town Car collided with the front of the Explorer. Regarding the other conflicts in the evidence, the record contains evidence impeaching the testimony of Haliburton and her daughter. Although Phillips told Officer Holt that he was not injured, he explained that his knee was only "a little sore" on the date of the occurrence but hurt quite a bit more the next day. We must defer to the jury's resolution of these issues of weight and credibility. See Swearingen, 101 S.W.3d at 97. Accordingly, we conclude that the evidence is factually sufficient to prove that the Town Car Brown was driving "hit" the Explorer Phillips was driving. Thus, we overrule Brown's first issue.

Unadjudicated Juvenile Offenses

Brown contends in his second issue that the court abused its discretion by admitting evidence at punishment of unadjudicated extraneous offenses he allegedly committed as a juvenile. However, this Court has already considered this issue in another case and concluded that unadjudicated extraneous offenses committed by a juvenile are admissible at punishment under article 37.07 of the Code of Criminal Procedure. See Dawson v. State, No. 10-01-202-CR, 2003 WL 23120062, at *7 (Tex.App.-Waco Dec. 31, 2003, no pet.); accord Wallace v. State, 135 S.W.3d 114, 120-21 (Tex.App.-Tyler 2004, no pet.); Rodriguez v. State, 975 S.W.2d 667, 687 (Tex.App.-Texarkana 1998, pet. ref'd); McMillan v. State, 926 S.W.2d 809, 813 (Tex.App. — Eastland 1996, pet. ref'd). Accordingly, we overrule Brown's second issue.

Stipulation to Prior Conviction

Brown contends in his third issue that the court abused its discretion by admitting in evidence his stipulation that he was previously convicted of evading arrest. He argues that such a stipulation should be governed by the law applicable to stipulations regarding prior DWI convictions under Tamez ¹ and its progeny. We agree. According to the Court of Criminal Appeals, such a stipulation "may be offered into evidence before the jury, but the evidence is sufficient to support a defendant's conviction even if the stipulation is not given or read to the jury." Martin v. State, 200 S.W.3d 635, 640 (Tex.Crim.App. 2006). Therefore, we overrule Brown's third issue.

Private Investigator's Opinion Testimony

Brown contends in his fourth issue that the court abused its discretion by refusing to permit a private investigator to testify as an expert "concerning the interpretation of the damage to the respective vehicles." Brown called Donald Youngblood, a private investigator and former police officer, to testify as an expert regarding "who was at fault" and not to provide any testimony regarding accident reconstruction. The State disagreed with Brown's characterization and argued that Youngblood was being called as an expert on accident reconstruction and was not qualified to provide testimony in that field. Youngblood testified that he had about ten years of training and experience in law enforcement before he became a private investigator in 1979. He has investigated more than 200 traffic accidents. He took a week-long course conducted by DPS in 1976 regarding accident reconstruction. The admission of expert testimony is governed by Rule of Evidence 702. TEX. R. EVID. 702; see Rodgers v. State, 205 S.W.3d 525, 527 (Tex.Crim.App. 2006). Before admitting expert testimony, the trial court must be satisfied that: "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Rodgers, 205 S.W.3d at 527. "Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case." Id. at 527-28. "For this reason, appellate courts rarely disturb the trial court's determination that a specific witness is or is not qualified to testify as an expert." Id. at 528 n. 9. Here, we conclude that the trial court did not abuse its discretion by excluding Youngblood's testimony because: (1) the court would have been within its discretion to conclude that Youngblood was in fact being called as an expert in accident reconstruction as the State argued, Brown's characterizations notwithstanding; see, e.g., Yarbrough's Dirt Pit, Inc. v. Turner, 65 S.W.3d 210, 214 (Tex.App.-Beaumont 2001, no pet.) ("Accident reconstruction testimony and the testimony of an officer who investigated the accident can be probative evidence of fault or lack of fault."); see also Ex parte Wheeler, 203 S.W.3d 317, 320 (Tex.Crim.App. 2006) (characterizing vehicular manslaughter trial in which primary issue was fault as "a battle between the State and defense accident-reconstruction experts"); and (2) though Youngblood's testimony reveals that he has significant experience investigating traffic accidents, he has had no formal training in this field in nearly thirty years. Accordingly, we overrule Brown's fourth issue.

Deadly Weapon Finding

Brown contends in his fifth issue that the evidence is factually insufficient to support the jury's finding that he used or exhibited a deadly weapon. For a vehicle which does not actually cause serious bodily injury or death to be considered a deadly weapon, there must be evidence that the vehicle was used in a manner that posed an actual rather than hypothetical danger to others. See Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). A deadly weapon finding may be upheld if there is "evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner." Id. The determination of whether a deadly weapon is appropriate in an evading arrest case "is a fact-specific inquiry, and the facts will not always support such a finding." Id. Here, there is evidence that Brown, by the manner in which he drove the Town Car, posed a danger of serious bodily injury to Phillips when he backed into the Explorer, posed a danger of serious bodily injury or death to Haliburton by driving backwards down the street at 45 miles per hour, and posed a danger of serious bodily injury or death to the officers who pulled in behind his car to block his path of escape. See Anderson v. State, No. 12-02-277-CR, 2004 WL 1202982, at *3 (Tex.App.-Tyler June 20, 2004, pet. ref'd) (not designated for publication); Hobbs v. State, No. 11-03-082-CR, 2004 WL 350475, at *3 (Tex.App.-Eastland Feb. 26, 2004) (not designated for publication), aff'd on other grounds, 175 S.W.3d 777 (Tex.Crim.App. 2005). Therefore, we hold that the evidence is factually sufficient to uphold the deadly weapon finding, and we overrule Brown's fifth issue. We affirm the judgment.