Opinion
No. 06-07-00037-CR
Submitted: August 13, 2007.
Decided: September 17, 2007. DO NOT PUBLISH.
On Appeal from the Fourth Judicial District Court Rusk County, Texas, Trial Court No. CR07-050.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Near the end of a lengthy and coordinated, multiple-officer police chase of a vehicle driven by Jerry Valynn Timmons, Timmons accelerated his automobile toward plain-clothed detective James Dukes, who was on foot in the center of a residential driveway with his gun drawn and his badge displayed on his belt. Fearing for his life, Dukes fired a single shot at the approaching vehicle and jumped out of the way, sustaining a serious knee injury in the process. As a result of that encounter with Dukes, Timmons was convicted by a jury of aggravated assault on a public servant, with a deadly weapon finding, and sentenced to thirty-five years' imprisonment and a $10,000.00 fine. Timmons contends on appeal that there is legally and factually insufficient evidence to support his conviction and that the trial court erred by admitting an aerial videotape made by the State of a re-enactment of the chase to show the route followed by Timmons. We affirm the trial court's judgment because (1) legally and factually sufficient evidence supports the conviction and (2) admitting the videotape re-enactment was not error.
(1) Legally and Factually Sufficient Evidence Supports the Conviction
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). In a factual sufficiency review, we are to afford "due deference" to a jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Inference stacking is not part of factual sufficiency analysis. The jury can draw multiple reasonable inferences as long as each inference is supported by evidence presented at trial. The jury may not come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App. 2007). The only element of proof that is clearly challenged is the question of intent. Timmons argues that there was no evidence he intended to injure Dukes. The evidence surrounding the alleged assault shows that Timmons had led police in a chase for about fifteen minutes. He had outdistanced them sufficiently to attempt to hide his car behind a house. Officers found Timmons' vehicle, and one of the officers pulled his police vehicle, with lights flashing, up to the house. One officer got out of his car, approached Timmons, and fired two shots at the tires of Timmons' vehicle. Timmons accelerated his vehicle around the back of the house — directly into the path of Officer Dukes. Timmons did not attempt to avoid Dukes and did not change his path. Dukes jumped out of the way, firing one shot at the car driven by Timmons. When Dukes landed, he felt his knee pop. Later, Dukes had surgery to repair a torn meniscus and anterior cruciate ligament in his knee. Other officers continued to chase Timmons, and eventually found his car parked, with flat tires, and Timmons hiding nearby under a mattress. Intent may be directly proven, or it may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004). In this case, evidence showed that Timmons attempted, for quite some time, to avoid capture by police. While so doing, and while being closely pursued by officers both afoot and in cars, Timmons drove directly at Dukes, who had to jump out of the way to avoid being hit. This evidence is sufficient to allow a jury to infer that Timmons knowingly or recklessly committed the assault. See Tex. Penal Code Ann. § 22.02. The evidence is factually and legally sufficient.(2) Admitting the Video Re-enactment Was Not Error
Timmons also contends that the trial court erred by admitting a videotape made of a re-enactment of the chase which preceded the alleged assault. The videotape is a split screen display. On one side, an aerial view of a police car retracing Timmons' path is shown, and on the other, a map of the area shows the route being followed. We review a trial court's admission or exclusion of evidence for abuse of discretion. Spradlin v. State, 100 S.W.3d 372, 381 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We are to give trial courts wide latitude in their decisions to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). As long as an evidentiary ruling is within the zone of reasonable disagreement, we are not to disturb it. Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). At trial, Timmons objected to the admission of the videotape on the basis that it was not relevant and that it showed nothing other than Timmons' flight, which was not an element of the offense on trial. He also objected on the basis that the videotape was made by someone other than the testifying witness, thus containing hearsay, and that expert testimony should be required to admit the videotape, and that it had the potential to confuse the jury because it did not go to show anything underlying the charge. The videotape was admitted as demonstrative evidence, that is, demonstrating the route followed; and the jury was so instructed. On appeal, the only argument is that the videotape constituted an admission of the results of an experiment conducted out of court and in the absence of opposing counsel and that the trial court thus abused its discretion by admitting the evidence. See Fort Worth Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex. 1964). This concept was explored in some depth by this Court in Horn v. Hefner, 115 S.W.3d 255, 257 (Tex.App.-Texarkana 2003, no pet.). The videotape showing the route taken by Timmons during the chase is not properly subject to this objection. It is not an experiment. It is not a reconstruction that required expert explanation. It was essentially a videotape version of a print map, illustrated by a vehicle moving along the relevant roadways, showing Timmons' efforts to avoid the officers who gave chase. It was used to show the jury the route followed by this rather extended and complex chase, and the jury was explicitly instructed that its consideration of the evidence was limited to that purpose. A significant contention of Timmons has been his lack of intent to assault Dukes. Relevant to that issue was the preceding flight. We conclude that this contention of error is without merit. We affirm the judgment.The initial reason for the chase is not relevant in this appeal.
See Tex. Penal Code Ann. § 22.02(a)(1), (2), (b)(2)(B), (c) (aggravated assault); § 22.01(a)(1), (2) (assault); § 1.07 (a)(46) (Vernon Supp. 2006) (serious bodily injury).
Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996).
It is within the discretion of the trial court to determine whether the existence of a dissimilarity between those conditions causes evidence of the experiment to confuse rather than aid the jury and, thus, whether the evidence should be excluded. Horn, 115 S.W.3d at 255; Sosa By Through Grant v. Koshy, 961 S.W.2d 420, 430 (Tex.App.-Houston [1st Dist.] 1997, pet. denied).