Opinion
Nos. 05-04-01127-CR, 05-04-01128-CR, 05-04-01129-CR
Opinion Filed February 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 50062, 50063, and 50064. Affirmed.
Before Justices WHITTINGTON, LANG and FRANCIS.
OPINION
A jury convicted Jere Mark Johnson of two aggravated assaults and one criminally negligent homicide. The court assessed punishment at five years for each aggravated assault and two years in a state jail facility for the criminally negligent homicide. In five issues, Johnson claims the evidence is legally and factually insufficient to support the convictions. We affirm the trial court's judgments. On the evening of January 30, 2003, Jason Clevenger drove a green Ford Tempo from Howe, Texas to Sherman, Texas. Christy Mullins sat in the rear passenger seat behind Clevenger while her thirteen-year-old son, James Russell, rode in the front passenger seat. Clevenger entered northbound U.S. 75 prior to the Center Street overpass in Sherman as Jere Johnson was driving a green Freightliner eighteen-wheeler north on U.S. 75. At approximately 8:45 p.m., Johnson collided with the Tempo propelling it across the median where it struck Phillip Ray Watkins's southbound eighteen-wheeler. Following the impact, Watkins's truck hit a southbound van. The collisions caused Watkins's truck to cross over the median until it stopped, blocking the northbound lanes of U.S. 75. Paul Christian, who was driving north on U.S. 75, collided with Watkins's truck after Watkins crossed the median. Christy Mullins died at the scene of the collision. James Russell was taken by ambulance to the intensive care unit at Wilson N. Jones Hospital where he was treated for a fractured rib, spleen injury, leg laceration, and pulmonary contusions. Emergency personnel transported Clevenger by CareFlite to the intensive care unit at Parkland Memorial Hospital in Dallas where he was treated for a fractured pelvis, fractured ribs, and an injury to his thorax. At around 10:00 p.m., Jere Johnson returned to the scene of the accident and told police officers he had been driving his truck north in the left lane of U.S. 75 when he saw sparks fly off the front of his truck and "felt a nudge." At that point, Johnson stated he did not realize he had collided with a car. Johnson told the officers he stopped to inspect his truck for damage and then returned to the collision site. Later that night, Johnson told Sgt. Brad Blankenship he had been driving in the left lane, started to move into the right lane, returned to the left lane, saw sparks, and then saw a car against the guard rail to his left. Sandy Dittfurth, the supervising sergeant for the Critical Accident Investigation Team, testified Johnson's semi-trailer incurred damage to the right side of the front bumper, damage to the front left bumper and headlight, green paint transfers and a tire mark on the right bumper. Mark Wood, a Sherman patrol officer specializing in accident reconstruction, told the jury that based on his investigation of the collision site and skid marks, Johnson was traveling at a minimum speed of 78 miles per hour prior to the crash. James Russell testified that immediately before the collision, a diesel truck came up directly behind the Tempo and a second diesel truck came up along the left side of the Tempo and "rammed" it. While in the hospital, Clevenger told Officer Wood he had accelerated the Tempo to "beat" the "diesels." Several witnesses saw Johnson's eighteen-wheeler traveling north on U.S. 75 before the collision. Keisha Brown and her husband were driving north on U.S. 75 from McKinney toward Sherman. Brown testified two trucks, one driven by Johnson, approached her from behind causing her to accelerate to 80 miles per hour. The two trucks eventually passed her and continued to weave in and out of traffic. According to Brown, the drivers of the trucks were not maintaining a safe distance between their vehicles and the other vehicles on the road. Regarding the collision between Johnson's truck and the Tempo, Brown said she "saw the taillights of the car come into view and then within seconds you could see sparks and then the car veered into the southbound lane." Paul Christian told the jury two trucks passed him exceeding the speed limit as he traveled north on U.S. 75 prior to the collision. Christian was traveling between 60 to 65 miles per hour when the trucks passed him. John Flusche, also driving north on U.S. 75 at the same time, testified Johnson was speeding, cutting in front of vehicles, and pulling up very closely behind other vehicles. Mary Kristine Beeler, her husband Roger, and their 19-year-old son, Trent, described Johnson and another truck driver as driving their trucks too closely behind the vehicles on the highway and exceeding the speed limit. Johnson was originally charged and tried for five separate offenses. Four of the offenses were aggravated assault with a deadly weapon and the fifth was manslaughter. During trial, the State dismissed two of the aggravated assault charges. The jury found Johnson guilty as charged on the remaining aggravated assault charges, but rejected the higher manslaughter charge and found him guilty of criminally negligent homicide. In his first and third issues, Johnson challenges the legal sufficiency of the evidence to support his aggravated assault convictions. His second, fourth, and fifth issues challenge the factual sufficiency of the evidence to support the convictions for aggravated assault and criminally negligent homicide. In reviewing a challenge to the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The jury is the exclusive judge of the credibility of the witnesses and the weight to be give to their testimony. The jury is free to accept or reject all or any part of a witness's testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). In addition to generally attacking the legal sufficiency of the evidence to support the aggravated assault convictions, Johnson argues the evidence is legally insufficient to support the convictions because (1) no evidence establishes that he acted "knowingly" or "intentionally" and (2) if he acted "recklessly" in committing the aggravated assaults, he could not have acted with "criminal negligence" in causing the death of Christy Mullins. One indictment charging Johnson with aggravated assault with a deadly weapon alleged that he
. . . intentionally, knowingly, or recklessly caused serious bodily injury to Jason Clevenger by striking a vehicle containing Jason Clevenger with the defendant's vehicle, and the defendant did then and there use or exhibit a deadly weapon, to wit: a motor vehicle, that in the manner of its use or intended use is capable of causing death or serious bodily injury, during the commission of said assault.The language of the second aggravated assault indictment was identical to the first except James Reynolds was named as the complainant. A person commits aggravated assault if he intentionally, knowingly, or recklessly commits assault and either causes serious bodily injury or uses a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(1); 22.02(a)(1)(2) (Vernon Supp. 2005). A person acts "intentionally" with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts "knowingly" with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). A person acts "recklessly" with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). A person acts with "criminal negligence" with respect to the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). The jury was charged to find Johnson guilty of aggravated assault if he acted "intentionally, knowingly, or recklessly." When alternative theories of committing the same offense are submitted to the jury in the disjunctive, the jury may return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Crim.App. 1991). Numerous witnesses were called by the State establishing that the eighteen-wheeler driven by Johnson collided with the Ford Tempo containing Jason Clevenger, James Russell, and Christy Mullins. The evidence included testimony that Johnson was speeding, driving erratically, weaving in and out of the lanes of traffic causing other vehicles to take evasive action to avoid being hit, cutting in front of some vehicles and pulling up closely behind others, and driving too closely alongside or nearby a second eighteen-wheeler that was also speeding and weaving lane to lane. Viewing the evidence presented at trial in the light most favorable to the two aggravated assault verdicts, the jury could have found the essential elements of the offenses beyond a reasonable doubt. In his argument attacking the two aggravated assault convictions, Johnson argues the State failed to prove that he "intentionally, knowingly or recklessly" caused the injuries to the two complainants and that "no evidence" establishes that he acted intentionally or knowingly. He maintains that because the jury found him guilty of criminally negligent homicide in the third case, thereby rejecting the "reckless" mental state in the higher manslaughter charge, the three verdicts are inconsistent since all three offenses resulted from essentially the same motor vehicle accident. Johnson contends that since the aggravated assault offense and the homicide offense are rooted in the same facts, all the complaining witnesses having been in the same car, the conviction on the lesser charge of criminally negligent homicide (criminal negligence mental state) is inconsistent with the aggravated assault convictions (intentional, knowing or reckless mental state) and therefore the two aggravated assault convictions are legally insufficient. Inconsistent verdicts do not require reversal for legal insufficiency. Jackson v. State, 3 S.W.3d 58, 61 (Tex.App.-Dallas 1999, no pet.) (citing Dunn v. United States, 284 U.S. 390, 393-94 (1932)). The conclusion does not necessarily follow that the fact finder has decided to convict a defendant on insufficient evidence when it renders inconsistent verdicts. The fact finder may simply be exercising its desire to be lenient, or executing its own brand of executive clemency and the verdict should not be upset by appellate speculation or inquiry into such matters. Id. We are limited to determining whether there is sufficient evidence to support the charge on which a conviction is returned. The evidence before the jury regarding the manner in which Johnson drove his vehicle was sufficient to support the finding that he "intentionally, knowingly or recklessly" caused the aggravated assaults as alleged in the indictments. Its decision to reject the higher manslaughter charge and find instead that Johnson acted with criminal negligence in causing the death of Christy Mullins is certainly within the purview of the jury and does not render the aggravated assault convictions legally insufficient. We overrule the first and third points of error. In his second, fourth, and fifth points of error, Johnson challenges the factual sufficiency of the evidence to support the convictions in all three cases. He specifically outlines conflicts in the testimony and argues the conflicts render the evidence factually insufficient. In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. at 484-85. Although cognizant of our authority to disagree with the fact finder, we also recognize such an action is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Otherwise, due deference must be accorded the fact finder's determinations concerning the weight and credibility of the evidence. Id. Johnson maintains one of the conflicts at trial surrounds the evidence presented to prove he was exceeding the speed limit. The defense presented a receipt establishing Johnson bought gasoline in Anna, Texas at 8:20 p.m. Defense witness Mark Wood testified it took twenty-three minutes and thirty seconds to travel from the gasoline station in Anna to the scene of the traffic accident driving the posted speed limit. Because the collision occurred at 8:45 p.m., Johnson contends he could not have exceeded the speed limit. Keisha Brown told the jury that she saw the wreck and remembered telling an officer that the green car was changing lanes in front of the truck when it was hit. Paul Christian testified that while the trucks were going faster that he was, "it wasn't like I noticed an atrocious amount of speed or anything." Phillip Ray Watkins, the driver of another eighteen-wheeler that night, remembered seeing the green car as it came across the median toward him. He thought the driver of the green car was "drunk or didn't know what was going on." He said the car was traveling "very, very fast" and it struck him on the left side fender. Johnson also points to evidence that Clevenger tested positive for marijuana use on the day of the collision. At trial, Clevenger said he had used marijuana three to four days prior to the accident. Clevenger also admitted he did not possess a valid driver's license on the day of the collision. While Clevenger was able to recall the events of the accident a few days later, at trial Clevenger stated his only memories of the event were a "diesel flying past" and waking up in the hospital. Johnson's blood tested negative for alcohol and drugs. Viewing the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. The evidence presented was not so weak so as to render the verdict clearly wrong and manifestly unjust. The conflicts in the evidence were not so strong that the standard of proof beyond a reasonable doubt could not have been met. We may disagree with a fact finder's determination only when the record indicates that such a step is necessary to arrest the occurrence of a manifest injustice. We conclude such a step is not warranted here. We overrule appellant's second, fourth, and fifth points of error. We affirm the trial court's judgments.