Nos. 05-02-00616-CR, 05-02-00617-CR.
Opinion Issued January 7, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-41089-MS, F01-41090-MS. AFFIRMED.
Before Justices WRIGHT, BRIDGES, and O'NEILL.
Opinion By Justice BRIDGES
Venus Dion Tucker appeals her convictions for aggravated assault and endangering a child. In three points of error, appellant contends the evidence is legally and factually insufficient to sustain the conviction for aggravated assault, and the sentence in the endangering a child conviction is void because it is outside the range of punishment. We affirm the trial court's judgment in each case.
Cause no. 05-02-00616-CR
Appellant waived a jury trial and pleaded not guilty to aggravated assault. After finding appellant guilty, the trial court sentenced her to twenty years' confinement and assessed a $500 fine. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to sustain the conviction because (1) she did not drive her truck in a manner that was capable of causing serious bodily injury or death, and (2) she did not know her children were in the back of the truck. The State argues the evidence is legally and factually sufficient to support the conviction because it clearly shows appellant was driving her truck in a dangerous manner even before her child was injured. Background
At trial, Brett Bryant, Sr. testified he lived and worked as a maintenance worker at the Mesquite Super-7 Motel. He knew that appellant and her husband and two children also lived at the motel. On November 4, 2001, Bryant was walking back to the motel from a nearby store when he saw appellant sitting in her truck and yelling at her son and daughter to get out of the back of the truck. Bryant saw appellant step on the gas, then apply the brakes, several times while yelling at the children to get out of the truck. Bryant testified he believed appellant was trying to "buck them out" of the back of the truck. Then appellant got out of the truck, yelled at the children, and threw a plastic oil bottle at them. Both children got out of the truck. When appellant got back in the truck and started to drive off, the boy ran after the truck and jumped into the back. The girl tried to do the same, but only made it on the back bumper. Bryant saw appellant turn her head around, look towards the back of the truck, then step on the gas. The truck "fishtailed" from the parking lot onto the service road, leaving skid marks. Bryant saw the girl fall off the back of the truck onto her back. He yelled at appellant to stop the truck. Bryant saw the girl lying motionless in the street. He ran to his room to get a sheet, then ran back to the girl and held the sheet to her bleeding head. Brittany Tucker, appellant's sixteen-year-old daughter, testified she fell off the truck because her shoelace got stuck, and she did not believe her mother knew she was on the back of the truck. Brittany testified her mother got in the truck to go look for their father. Brittany and her brother wanted to go with appellant, but appellant told them no. Brittany testified appellant did throw a plastic oil can at her brother and told them to get out of the back of the truck. Brittany and her brother got out of the truck, but her brother jumped back on when appellant started to drive away. Brittany tried to jump on the truck, but only made it to the back bumper. She fell off the truck after appellant turned onto the service road. Brittany further testified she sustained a "cracked skull" in the fall, and remained in the hospital for two weeks following the incident. Jeremy Pierson, appellant's twelve-year-old son, testified he was in the back of the truck sitting on a toolbox when Brittany fell off the bumper. Jeremy wanted to go with appellant to look for his father, but appellant argued with him and told him no. He and his sister got out of the truck at first, but he jumped back on the truck when appellant started to drive off. His sister jumped onto the back bumper, then fell off when appellant turned onto the service road. Jeremy testified he did not think appellant knew he and his sister were on the back of the truck. Appellant denied she intentionally or knowingly caused injury to her daughter, and testified she did not know either child was in the back of the truck. Appellant testified she was going to her sister's house to see if anyone had called her about a job. Appellant told both children to get out of the back of the truck, and thought they had done so. After she drove off, she saw her daughter lying on the ground. She stopped the truck and ran back to her daughter. Appellant testified she never stepped on the gas, then the brakes in order to get her daughter to fall off the truck because she did not even know her daughter was on the back end of the truck. Appellant testified her son routinely sat on the toolbox in the back of the truck, and she did not believe that was dangerous for him. Appellant later acknowledged that having her children ride in the back of a truck was not a safe place for them. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment to 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, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to another and used or exhibited a deadly weapon during commission of the assault or caused serious bodily injury to another. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon 1994 Supp. 2003). Serious bodily injury means bodily injury that causes permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. See Tex. Pen. Code Ann. § 1.07(a), (46) (Vernon 1994). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 1994). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Discussion
A motor vehicle is capable of causing death or serious bodily injury and, thus, can be a deadly weapon. See Tyra v. State, 897 S.W.2d 796, 799 (Tex.Crim.App. 1995). Here, there is evidence appellant drove her truck in a manner that did cause serious bodily injury to her daughter. Bryant testified he saw appellant starting and stopping the truck in an attempt to "buck" her daughter and son from the back of the truck. Bryant also saw appellant look towards the back end of the truck before she accelerated and drove onto the service road, knocking her daughter off the back bumper. Neither of appellant's children disputed Bryant's testimony, but they testified they did not believe appellant knew they were in the back of the truck when she drove off. Reconciliation of any conflicts in the evidence was within the exclusive province of the fact finder. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed all the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to sustain the conviction. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. Accordingly, we overrule appellant's first and second points of error. Cause no. 05-02-00617-CR
In this case, appellant waived a jury trial and pleaded not guilty to endangering a child. See Tex. Pen. Code Ann. § 22.041 (Vernon Supp. 2003). After finding appellant guilty, the trial court sentenced her to two years in a state jail facility and assessed a $500 fine. In her third point of error, appellant contends the sentence is void because it is outside the range of punishment. Appellant argues the trial judge orally sentenced her to five years in a state jail facility, but the maximum punishment for the offense is only two years in a state jail facility. The State argues any variation between the oral and written pronouncement of the sentence should be disregarded because appellant's substantive rights were not affected. We agree with the State. Appellant was convicted of a state jail felony. The applicable punishment range is confinement in a state jail facility for not less than 180 days or more than two years and an optional fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.35 (Vernon 1994). When the trial judge orally pronounced sentence, he sentenced appellant to five years in a state jail facility, which is clearly outside the punishment range. However, appellant is not serving the five-year sentence. Appellant is serving the two-year sentence imposed by the court's written judgment. Thus, the trial court's error arises from a variance between the court's oral pronouncement of sentence and its written judgment. We may only reverse if this variance affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). Here, the two-year sentence imposed by the trial court's written judgement is within the statutory range for a state jail felony. See Tex. Pen. Code Ann. § 12.35. We conclude the trial court's error did not affect appellant's substantial rights. See Ribelin v. State, 1 S.W.3d 882, 885 (Tex.App.-Fort Worth 1999, pet. ref'd). Accordingly, we overrule appellant's third point of error. We affirm the trial court's judgment in each case.