No. 05-08-01061-CR
Opinion issued May 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-07-773.
Before Chief Justice THOMAS and Justices FITZGERALD and LANG.
Opinion By Justice FITZGERALD.
A jury convicted Clarence Harold Poteet of aggravated assault with a deadly weapon and assessed punishment at two years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for aggravated assault with a deadly weapon, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Joanna Harmon with imminent bodily injury by hitting her vehicle with his vehicle while both vehicles were moving in the same direction, and appellant used or exhibited a deadly weapon during the commission of the assault. See Tex. Penal Code Ann. §§ 22.01(a), (2), 22.02(a)(2) (Vernon Supp. 2008). A "deadly weapon" is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17)(B). Evidence Presented
On February 9, 2007, as Joanna Harmon drove along Interstate-30, a Ford truck hit her vehicle from behind and "knocked" her off the road. Harmon testified she was in the left lane because other vehicles were coming onto the highway from a ramp. Harmon saw the truck "come up fast" behind her vehicle flashing its headlights. Harmon "tapped" her brakes to "tell the driver to back off." The truck "rammed" her vehicle. Harmon applied her brakes, but the truck remained on her bumper and "pushed" her onto the left median. Harmon testified she was scared and thought her vehicle would flip or head into oncoming traffic. Harmon held onto the steering wheel and eventually returned to the roadway without colliding with another vehicle. She tried to "catch" the truck while calling 911 on her cell phone. Harmon gave the dispatcher a description of the truck and a partial license plate number. Harmon testified she drove 80 mph while trying to read the truck's license plate, but never got close enough to read all of it. The truck exited the highway at FM 2642. Harmon pulled her vehicle onto the right median of the highway and waited for the police. Harmon's vehicle sustained damage on the rear bumper and passenger side. Rockwall County Deputy Sheriff Anthony Kinsey responded to a hit-and-run incident on Interstate 30. The dispatcher said Harmon was following the suspect vehicle, and broadcast a description and direction of travel. Kinsey testified he pulled over the suspect vehicle on the south service road at FM 2642. Appellant was in driver's seat of the truck. When asked if he had been involved in an accident, appellant said, "[N]o." After further questioning, appellant said he was driving on Interstate 30 and a car "would not get out of the way so I bumped them to make them move." Appellant's truck had visible damage to the front license plate and driver's-side front. Harmon's vehicle had visible damage to the rear bumper that continued across the bumper and wrapped around to the passenger side. Kinsey testified the damage to Harmon's vehicle indicated appellant intentionally contacted the vehicle with his truck and continued that contact as the truck traveled around the bumper and up the passenger side of the vehicle. The damage to both vehicles was consistent with appellant's statement that he "bumped the vehicle to get it out of its way." Photographs of appellant's truck and Harmon's vehicle were shown to the jury. The jury also saw a video recording of the traffic stop. Deputy Chad Young arrived on the scene after Kinsey had pulled appellant over. Young talked briefly with appellant. Appellant said he and Harmon were in the fast lane going 65 mph. She "slammed on her brakes and he ended up bumping her." Appellant said Harmon was "dragging ass and I bumped her." Young saw visible damage to the front of appellant's truck on the driver's side. After talking with appellant, Young drove onto the highway to talk with Harmon. Young observed damage to the back of Harmon's car. There were "scratches" by the license plate that wrapped around to the side of the car. The scraping on Harmon's car was reflective of continuous contact and consistent with Harmon's statements that appellant was trying to "run her off the road." A video recording of Young's interaction with appellant and Harmon was played to the jury. Patrolman Timothy Simmons, an accident investigation expert with the Texas Department of Public Safety, testified that when two vehicles are traveling between fifty and sixty-five miles-per-hour and contact occurs, that contact could result in serious bodily injury or death. Simmons testified that if a vehicle bumps another vehicle from behind and causes the bumped vehicle to go off the roadway, that contact could result in serious bodily injury or death. If a person being bumped from the rear applied the brakes but was still being pushed forward, in Simmons's opinion, that meant the force was intentionally applied. Appellant did not present any evidence during the guilt/innocence phase of the trial. Discussion
Appellant contends the evidence is legally and factually insufficient to show he used his vehicle as a deadly weapon or threatened Harmon with bodily injury. Appellant asserts that because he only "bumped" Harmon's vehicle "very briefly and nothing more," the jury's implicit finding he used or intended to use his vehicle as a deadly weapon is manifestly wrong and unjust. The State responds that the evidence is both legally and factually sufficient to support the jury's verdict. To sustain a deadly weapon finding, the evidence must demonstrate that: (1) the object meets the statutory definition of a deadly weapon; (2) the deadly weapon was used or exhibited "during the transaction from which" the felony conviction was obtained; and (3) that other people were put in actual danger. See Tex. Penal Code Ann. § 1.07(a)(17)(B); Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App. 1997); see also Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003). Proof that a defendant possessed a specific intent to use a motor vehicle as a deadly weapon is not required. See Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). There was evidence presented that a vehicle, in the manner of its use, could cause serious bodily injury or death. Appellant admitted to police officers that he used his truck to "make [Harmon] get out of the way." The damage to Harmon's vehicle indicated appellant's truck made contact with the rear bumper and maintained that contact until Harmon's vehicle left the roadway, thereby placing Harmon in actual danger that she would flip over or hit another vehicle. Viewed under the proper standard, we conclude the evidence is legally and factually sufficient to support the jury's implicit finding that appellant threatened Harmon with serious bodily injury or death when he used his vehicle as a deadly weapon. See Roberts, 220 S.W.3d at 524; Drichas, 175 S.W.3d at 798; Vodochodsky, 158 S.W.3d at 509. We resolve appellant's two issues against him. We affirm the trial court's judgment.