Opinion
No. 05-18-00349-CR No. 05-18-00351-CR
05-30-2019
BRANDON EDWARD COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 399th Judicial District Court Bexar County, Texas
Trial Court Cause Nos 2017-CR-7015 , 2017-CR-7017
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Whitehill
A jury convicted appellant of evading arrest or detention and aggravated assault with a deadly weapon and the trial court assessed punishment at ten and fifteen years in prison respectively, with the sentences to run concurrently. Appellant filed a motion for new trial which was denied.
The motion for new trial pertaining to cause numbers in this appeal was denied. But the trial court granted the motion as to a related cause number, No. 2016-CR-7016.
In two issues, appellant argues the evidence is legally and factually insufficient to support his convictions. As discussed below, we affirm the trial court's judgments.
I. BACKGROUND
On the day appellant was arrested, Detective Guillermo Cantu, assisted by U.S. Marshals, was attempting to apprehend appellant for three felony warrants. Appellant was followed on the highway, and when the Marshals' lights were activated, appellant drove in front of Cantu's vehicle, jumped the curb, and fled in the other direction. Eventually, appellant stopped at a train crossing and waited in traffic. When the officers' vehicles approached, appellant swerved out of traffic, made an abrupt U-turn, and struck another vehicle. Appellant then attempted to "push through" the other vehicle by continuing to accelerate into it. After the collision, appellant exited his vehicle and attempted to run before he was apprehended.
Appellant was charged with evading arrest or apprehension and aggravated assault. The cases were tried to a jury and appellant was found guilty of both offenses. The trial court assessed punishment at ten years in prison for evading arrest and fifteen years in prison for aggravated assault, with the sentences to run concurrently. Appellant's subsequent motion for new trial was denied, and this appeal followed.
II. ANALYSIS
A. Issues One and Two (Cause No. 05-18-00349-CR): Is the evidence sufficient to sustain the evading arrest conviction?
Appellant argues that the evidence is legally and factually insufficient to support his evading arrest conviction. We consider only whether the evidence was legally sufficient.
These issues were raised in cause number 05-18-00349-CR, appealed from trial court cause number 2017-CR-7015.
The Texas Court of Criminal Appeals abolished factual sufficiency review in criminal cases. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
We review the sufficiency of the evidence to support a conviction by viewing all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard gives full play to the fact finder's responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the fact finder is the sole judge of the evidence's weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the evidence's cumulative force viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in the verdict's favor and defer to that resolution. Id. at 448-49.
The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). And under Texas law, a variance between the allegations in the indictment is a matter of evidentiary sufficiency. Gollihar v. State, 46 S.W.3d 243, 246-7 (Tex. Crim. App. 2001). Only a "material" variance will render the evidence insufficient. Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018).
A person commits an evading arrest or detention offense if he (i) intentionally flees, (ii) from a person he knows is a police officer or federal special investigator, (iii) who is attempting to lawfully arrest or detain him. See TEX. PENAL CODE §38.04. The offense is a felony if the actor used a vehicle while in flight. Id. §38.04(b). "The relevant inquiry is whether there was an attempt to flee or delay the detention." Franco v. State, No. 04-13-00906-CR, 2015 WL 3616057, at *2 (Tex. App.—San Antonio 2015, no pet.) (mem. op. not designated for publication).
The crux of appellant's argument is that there is insufficient evidence to specifically prove that he intentionally evaded Detective Cantu, as opposed to other officers involved in the same pursuit. Relying on Arambula v. State, No. 04-14-0069-CR, 2015 WL 5438969, at *1 (Tex. App.—San Antonio Sept. 16, 2015, no pet.), appellant contends that the state could not simply show that he was evading law enforcement because that would be an impermissible variance from the charged offense. Although the charging instrument alleges that appellant fled from Cantu, appellant's reliance on Arambula is misplaced.
In that case, the charging instrument alleged that the defendant intentionally fled from Officer Estrada. At trial, officers Guerra and Diaz testified about a different incident where the defendant evaded them. Id. The court concluded that there was insufficient evidence to support evading arrest because there was a material variance between the charged offense and the evidence adduced at trial. Id. at *2.
In reaching its conclusion, the court observed that the gravamen of evading arrest is the evasion for a specific arrest, and while the defendant was charged with evading arrest by Estrada, the State only proved that he evaded Diaz and Guerra. The court further noted that, "[t]here was no evidence proving that [the defendant] evaded an arrest by . . . Estrada or that . . . Estrada attempted to arrest [the defendant] in the same pursuit that Diaz and Guerra testified about." Id. at *2 (emphasis added).
In this case, however, Detective Cantu was involved with several other officers attempting to arrest appellant in a single pursuit. Cantu testified that he was attempting to apprehend appellant for three felony warrants, assisted by officers from the U.S. Marshal's office.
Cantu followed appellant in an unmarked patrol car, and "Blue Eagle," the San Antonio Police Department helicopter followed in the air and recorded video. Raul Garcia and Mark McPherson, two of the U.S. Marshals involved in the pursuit, followed Cantu in law enforcement vehicles. Other officers, including a task force officer and two other U.S. Marshals were also trying "to get up to where the defendant was at to find a place to actually arrest him." Garcia approximated that fifteen to twenty officers were involved in this pursuit. Garcia believed that appellant knew the officers were trying to apprehend him.
Appellant was stopped at a red light when the officers decided to apprehend him. Cantu moved his vehicle along the left side of appellant's vehicle and a Marshal's vehicle moved in behind appellant's vehicle. The Marshal's vehicle turned on its emergency lights and sirens.
Appellant drove in front of Cantu's vehicle, almost hit it, jumped the curb, fled into the turn lane, and continued in the other direction, almost hitting another vehicle. As appellant turned in front of Cantu, the two men's eyes met. Cantu said appellant knew he was law enforcement because Cantu had previously arrested him.
The Marshals pursued appellant as he fled. Cantu followed, but fell back because he was in an unmarked car. As appellant continued, he violated several traffic laws, including jumping curbs, speeding, changing lanes without a signal, and running a red light.
Because Blue Eagle was following appellant, the officers fell back from their pursuit hoping that appellant would return to a normal rate of speed. Appellant eventually stopped at a train crossing and sat in traffic as he waited for the train to pass. The officers turned off their lights and sirens in an attempt to move in undetected. But when appellant swerved out of traffic and made an abrupt U-turn, the lights and sirens were reactivated. At this point, marked San Antonio police cars with lights and sirens were among the vehicles pursuing appellant.
Appellant then struck a car that was sitting in traffic and attempted to "push through" that vehicle by continuing to accelerate into it. After the collision, appellant exited his vehicle and attempted to flee on foot. At that point, he was apprehended.
The evidence shows that Cantu was working with several others officers in a unified, single attempt to apprehend appellant. Therefore, unlike Arambula, even if we assume for the sake of argument that the State failed to prove that appellant was specifically evading Cantu, it is not a material variance from the charged offense. See Ramjattansingh, 548 S.W.3d at 547.
Appellant also argues that the evidence does not demonstrate that he knew Cantu was law enforcement and that he was attempting to apprehend him. He further argues that Cantu was in an unmarked car and the lights on the other vehicles are not visible in part of the video. We are not persuaded by these arguments.
Even if the jury discounted Cantu's testimony that appellant saw him and knew he was law enforcement, evidence concerning appellant's knowledge of pursuit is not limited to pursuit by only Cantu. See TEX. PENAL CODE §38.04. Instead, the question is whether appellant knew that law enforcement officers were attempting to apprehend him. Id. Several law enforcement vehicles, including marked police cars, had emergency lights and sirens activated. When the vehicles converged on him, appellant abruptly fled in the other direction. And although lights are not visible in part of the video, they are visible in other parts, and Cantu testified that two vehicles had the lights activated. After the collision, appellant exited his vehicle and attempted to flee.
From this evidence, the jury could rationally infer that appellant knew he was being pursued by law enforcement and attempted to flee. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (jury may infer intent and knowledge from any facts tending to prove such existence, including from the acts and conduct of the accused).
After viewing all of the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the evading arrest judgment. We resolve appellant's sufficiency issues concerning evading arrest against him.
B. Issues One and Two (Cause No. 05-18-00351): Is the evidence sufficient to sustain the aggravated assault conviction?
Appellant also argues that the evidence is insufficient to support his conviction for aggravated assault. In particular, appellant argues that there is insufficient evidence that (i) he knew he had outstanding warrants and law enforcement was trying to apprehend him, (ii) his driving demonstrated a gross deviation from the standard of care, and (ii) he did not cause serious bodily injury.
Raised in cause number 05-18-00351-CR, appealing the conviction in trial court cause number 2107-CR-7017. Appellant raises both factual and legal sufficiency issues, but we consider only legal sufficiency. See Meza v. State, 549 S.W.3d 672, 676 n.2 (Tex. App.—San Antonio 2017, no pet.).
Whether or not appellant knew he had outstanding warrants is immaterial and we have already concluded that the evidence supports a finding that he knew he was being pursued by law enforcement.
As relevant here, a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE § 22.01(a)(1). "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Id. §1.07(a)(8). An aggravated assault is an assault committed under section 22.01 where the person (i) causes serious bodily injury, or (ii) uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE § 22.02 (a).
A motor vehicle is a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Ex parte McKithen, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992). Specific intent to use a motor vehicle as a deadly weapon is not required. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
The aggravated assault indictment alleged that appellant:
. . . [D]id use and exhibit a deadly weapon, NAMELY: A MOTOR VEHICLE, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, and defendant did intentionally, knowingly and recklessly CAUSE BODILY INJURY to Alexis Ledesma . . . by DRIVING SAID DEADLY WEAPON AT AND IN THE DIRECTION OF THE COMPLAINANT; and BY STRIKING THE COMPLAINANT WITH SAID DEADLY WEAPON.
Appellant does not dispute that his vehicle was a deadly weapon or that it struck Ledisma's vehicle. He argues, however, that he did so to avoid a head-on collision with other traffic and his actions did not rise to the level of recklessness (the least culpable mental state for the offense).
But Cantu testified that appellant's vehicle swerved out of traffic, made a U-Turn, and accelerated into another vehicle to avoid his arrest and that this was intentional. Garcia confirmed that appellant accelerated into the other vehicle and attempted to "push through" the vehicle by continuing his acceleration. The jury heard the testimony and watched the video, and was free to weigh the evidence as it deemed appropriate. See TEX. CODE CRIM. PROC. art. 38.04. And the evidence is sufficient to prove that appellant acted with any of the requisite mental states. TEX. PENAL CODE § 22.01(a)(1).
Moreover, the indictment does not allege and the State did not have to prove that Ledisma suffered serious bodily injury. Rather, it was only required to prove at least bodily injury. Ledisma testified that appellant's vehicle struck hers and dragged it to the curb. Someone called EMS for her and she was taken to a clinic or a hospital. Ledisma had a large bruise on her left thigh for a few weeks that caused her pain and made it difficult to get dressed. She also suffered scratches and swelling. This evidence is sufficient to establish that the assault caused Ledisma bodily injury. See TEX. PENAL CODE §1.07(a)(8); see also Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (holding evidence sufficiently proved bodily injury where complainant testified she suffered physical pain when the defendant grabbed her briefcase and twisted her arm, causing a small bruise).
Based on the foregoing, a jury could reasonably conclude beyond a reasonable doubt that appellant committed aggravated assault. We therefore conclude that the evidence is sufficient to support the aggravated assault judgment and resolve appellant's issues concerning this conviction against him.
III. CONCLUSION
Having resolved all of appellant's issues against him, we affirm the trial court's judgments.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180349F.U05
JUDGMENT
On Appeal from the 399th Judicial District Court, Bexar County, Texas
Trial Court Cause No. 2017-CR-7015.
Opinion delivered by Justice Whitehill. Justices Partida-Kipness and Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 30, 2019
JUDGMENT
On Appeal from the 399th Judicial District Court, Bexar County, Texas
Trial Court Cause No. 2017-CR-7017.
Opinion delivered by Justice Whitehill. Justices Partida-Kipness and Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 30, 2019