Opinion
NO. 09-11-00389-CR
09-05-2012
PATRICIA MARIE HARGRAVE a/k/a PATRICIA M. HARGRAVES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 10-11-11968-CR
MEMORANDUM OPINION
Patricia Marie Hargrave, appeals her convictions for aggravated assault with a deadly weapon and evading arrest. Hargrave was sentenced to twenty-five years confinement on each count, sentences to run concurrently. On appeal, Hargrave argues that the evidence is insufficient to support the jury's findings and that the trial court abused its discretion in assessing attorney's fees against her. We affirm the judgments as modified.
BACKGROUND
On October 30, 2010, Hargrave went to the home of her ex-boyfriend, S.S.. Hargrave found S.S. working in his garage and asked him if she could borrow his truck to move some furniture. S.S. testified that he did not want to let Hargrave borrow his truck. S.S. stated that he walked Hargrave out of his garage, locked the burglar bars on his house, and went inside the house. S.S. testified that he hoped Hargrave would leave; instead, she became annoyed. S.S. saw Hargrave walk around to the back side of his house and get a shovel. Hargrave began banging on the back sliding glass door, between the burglar bars, with the shovel. Worried she might break the glass, S.S. opened the door. When he opened the door, Hargrave hit him in the face with the shovel. The evidence established that S.S. had lacerations on his forearms that appeared to be defensive wounds, as well as a busted lip and a laceration on his forehead. S.S. testified that "[t]here was blood all over."
S.S. admitted that he was intoxicated at the time of the assault and stated that Hargrave had also been drinking. S.S. testified that he was able to get the shovel away from Hargrave, and he asked her what she was doing. Hargrave told S.S. that she came to get her stuff. S.S. stated that he told her she could get her stuff and he allowed her into the house. Hargrave retrieved a bag with some clothes. Hargrave then told S.S. that she had his cell phone and his keys, and S.S. went across the street to use his neighbor's phone and call the police. While on the phone with the 9-1-1 operator, he heard his truck start up and drive away. He told the dispatch operator that he was hit in the mouth with a shovel and his truck was stolen. He identified Hargrave as the person who stole his truck, and told the operator the direction she went and where he believed she was going. He also gave the operator a description of his truck.
Sergeant Timothy Bell, who responded to the scene, observed S.S.'s injuries and sent information to dispatch to help locate the truck. Officer Deangelo Lavergne located the truck and pulled up behind it. He confirmed it matched S.S.'s description and license plate number and turned on his emergency lights and siren indicating that the driver needed to pull over. Lavergne testified that Hargrave did not pull over. Lavergne told the jury that Hargrave was driving "very erratically[,]" "moving in and out of traffic," and "going around cars on the wrong side of the road." Using his patrol car's loud speaker, Lavergne told Hargrave to pull over. When she did not pull over, he pulled up beside her open passenger window, rolled down his window, and verbally directed her to pull over. Lavergne testified that Hargrave did not look at him.
Hargrave ultimately turned into a Wal-Mart parking lot where she continued driving erratically and dodging cars. After she was cut off by another vehicle, officers performed a felony stop. Lavergne testified that officers commanded Hargrave to put the truck in park but she did not respond. Officers had to physically remove Hargrave from the truck. Because she refused to put the truck in park, it rolled into another vehicle after she was removed. Lavergne placed Hargrave in custody and put her in the back of his patrol car. Lavergne stated that while in the back of his patrol car, Hargrave said she was hot, so he rolled the window down a little. Lavergne told the jury that Hargrave then reached outside the window trying to get out of the patrol car. Lavergne took Hargrave back to S.S.'s residence where S.S. identified her. She was then taken to the police station.
SUFFICIENCY OF THE EVIDENCE
In issue one, Hargrave argues the evidence is insufficient to support her conviction for aggravated assault with a deadly weapon. In issues two and three, she argues that the evidence is insufficient to support her conviction for evading arrest or detention with a vehicle, and the jury's affirmative finding that the vehicle was used as a deadly weapon.
The "Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We must give full deference to the fact-finder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The jury convicted Hargrave of aggravated assault with a deadly weapon. A person commits aggravated assault if she "intentionally, knowingly, or recklessly causes bodily injury to another" and "uses or exhibits a deadly weapon during the commission of the assault." Tex. Penal Code Ann. §§ 22.01, 22.02(a)(2) (West 2011). The Penal Code defines "'[d]eadly weapon'" as "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(17) (West Supp. 2011). Count I of the indictment alleged that on or about October 30, 2010, Hargrave "intentionally, knowingly, or recklessly cause[d] bodily injury to [S.S.], by striking him with a shovel, and [Hargrave] did then and there use or exhibit a deadly weapon, to wit: a shovel, during the commission of said assault[.]" The jury found Hargrave guilty as charged in Count I.
Hargrave argues that the evidence is insufficient to establish the elements of the charged offense because the evidence does not establish that she verbally threatened S.S. and no damage was done to his property. Hargrave also relies on testimony that S.S. did not want Hargrave to be prosecuted. However, it is not necessary that the State show that S.S. was verbally threatened or that his property was damaged in order to establish the commission of aggravated assault. See id. §§ 22.01, 22.02. Likewise, the fact that S.S. did not want the district attorney to prosecute Hargrave is of no consequence. See id. The evidence established that Hargrave caused S.S. bodily injuries by striking him with a shovel. He had defensive wounds on his forearms, a laceration on his forehead, and a busted lip. He testified that there was blood everywhere and all over his shirt. The State introduced photographs of his injuries at trial. He reported to paramedics who responded to the scene that he lost a tooth during the assault. The State introduced the shovel into evidence at trial. Viewing the evidence in the light most favorable to the jury's verdict, we conclude the jury could have found beyond a reasonable doubt that Hargrave committed aggravated assault with a deadly weapon. We overrule issue one.
The jury also convicted Hargrave of evading arrest or detention with a motor vehicle and found, in response to a special issue, that she used or exhibited the motor vehicle as a deadly weapon during the commission of the offense. Hargrave argues in issues two and three that the evidence is insufficient to support the jury's findings. A person commits the offense of evading arrest if she intentionally flees from a person she knows is a peace officer lawfully attempting to arrest or detain her. See Tex. Penal Code Ann. § 38.04(a) (West Supp. 2012); Hobyl v. State, 152 S.W.3d 624, 627 (Tex. App.— Houston [1st Dist.] 2004, pet. dism'd) ("[T]he accused must know that the person from whom he flees is a peace officer attempting to arrest or detain him."). The indictment charged Hargrave with "intentionally flee[ing] from Deangelo Lavergne, a person [Hargrave] knew was a peace officer attempting lawfully to arrest or detain [her], and [she] used a vehicle while [she] was in flight." The indictment further charged that during the commission of the offense Hargrave used or exhibited a deadly weapon, "towit: a motor vehicle[.]" The jury found Hargrave guilty of the charged offense.
Hargrave argues that Lavergne never testified that he advised her that he was a peace officer and that he was attempting to arrest or detain her. Hargrave further relies on the fact that there was no testimony that she acknowledged that she knew she was being pursued by a peace officer attempting to arrest or detain her. Knowledge that a peace officer is attempting to detain or arrest a subject can be established by circumstantial evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Wright v. State, 855 S.W.2d 110, 112 (Tex. App.—Houston [14th Dist.] 1993, no writ). "A person acts intentionally, or with intent, 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. Penal Code Ann. § 6.03(a) (West 2011). Both knowledge and intent may be inferred from the defendant's acts, words, or conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see also Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).
Officer Lavergne's uncontroverted testimony established that he activated his over-head lights and siren when he began pursuing Hargrave, that he directed her to pull over using his loud speaker, and that he pulled up next to her open passenger window, rolled down his own window, and verbally directed her to pull over. The evidence further established that during the pursuit, Hargrave was traveling at a high rate of speed and driving "[v]ery erratically" and "[s]ignificantly faster" than surrounding traffic. Regardless of whether she acknowledged Lavergne, Hargrave did not pull over in response to Lavergne's lights and siren or his verbal demands. She was ultimately physically removed from the truck. Viewing the evidence in the light most favorable to the prosecution, we conclude that a jury could have found beyond a reasonable doubt that Hargrave committed the offense of evading arrest or detention with a motor vehicle. See Hobyl, 152 S.W.3d at 627; see also Green v. State, 892 S.W.2d 217, 218-19 (Tex. App.—Texarkana 1995, pet. ref'd) (finding evidence sufficient to support conviction for evading arrest when the defendant disobeyed police officers instructions to come to a patrol car). We overrule issue two.
In her third issue, Hargrave argues that the evidence was insufficient to support the jury's affirmative finding of her use of the vehicle as a deadly weapon during the offense of evading arrest. Hargrave argues that there is no evidence that anyone was placed in fear of serious bodily injury or death, and no evidence that she intended to cause serious bodily injury or death. Hargrave further argues that there was no testimony that the truck she was driving damaged any vehicle or property, was involved in a collision, or injured another person during the pursuit. Objects that are not generally considered dangerous weapons may become so, depending on the manner in which they are used during the commission of the offense. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). "A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury." Id.; see also Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009). It is not required that the actor intend to use the vehicle as a deadly weapon. Drichas, 175 S.W.3d at 798. But the manner of use of the vehicle, must pose an actual, not hypothetical, danger to others. Id. at 799.
S.S. testified that Hargrave had been drinking at the time she left in his truck. Lavergne testified that during the pursuit she was driving "[v]ery erratically[,]" "moving in and out of traffic," and "going around cars on the wrong side of the road." He further testified that traffic was "pretty congested" and that he paced Hargrave going about 60 miles per hour, which he stated was "[s]ignificantly faster" than surrounding traffic. Lavergne stated that Hargrave did not use her signals when weaving in and out of traffic. He acknowledged that she "pulled around the stopped traffic at the red light" to turn right, and was driving in a manner that endangered other drivers on the road. Lavergne stated that Hargrave continued to drive in a reckless manner when she entered the Wal-Mart parking lot. Lavergne explained that the Wal-Mart parking lot was crowded. Lavergne told the jury that Hargrave's driving in the parking lot was "[v]ery erratic[,]" and she was "[d]odging cars."
Although the evidence established that the pursuit only lasted several minutes and covered a distance of only four to five miles, Lavergne described Hargrave's driving as "erratic" and "reckless," stating that she drove into oncoming traffic "[a]t least twice" during the pursuit. Viewing the evidence in the light most favorable to the prosecution, we conclude that a jury could have found beyond a reasonable doubt that Hargrave used the vehicle as a deadly weapon during the commission of the offense. See Drichas, 175 S.W.3d at 797-98 (finding the evidence sufficient to support the jury's deadly weapon finding where defendant led officers on a fifteen-mile high speed chase during which defendant "disregarded traffic signs and signals, drove erratically, wove between lanes and within lanes, turned abruptly into a construction zone . . . and drove on the wrong side on the highway."). We overrule issue three.
ATTORNEY'S FEES
In issue four, Hargrave argues that the trial court abused its discretion in assessing attorney's fees to an indigent offender. The trial court has discretionary authority to order reimbursement of appointed attorney's fees when the defendant has financial resources that enable him to offset the costs of the legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Id. art. 26.04(p). The trial court determined that Hargrave was indigent when it appointed her trial counsel and again when it appointed her appellate counsel. The State concedes that there is no evidence that the trial court ever made a determination that there was a material change in Hargrave's indigence. Therefore, the State concedes the judgment should be modified to delete the award of attorney's fees.
The record does not demonstrate that Hargrave had the financial resources to pay the court-appointed attorney's fees and contains no evidence that supports a finding that her financial circumstances had materially changed. See id.; see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). We conclude the trial court abused its discretion in assessing attorney's fees against Hargrave. See Tex. Code Crim. Proc. Ann. art. 26.05(g). We sustain issue four. Accordingly, we modify the judgments to delete the portion of the judgments requiring Hargrave to pay attorney's fees in the amount of $3500. In all other respects, the judgments are affirmed.
AFFIRMED AS MODIFIED.
________
CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Kreger and Horton, JJ.