1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

___________________

NO. 09
- 15
- 00252
- CR

___________________ TOMMY JACK LEWIS ARMSTRONG, Appellant V. THE STATE OF TEXAS, Appellee

__________________________________________________________________ On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 14
- 20458

__________________________________________________________________ MEMORANDUM OPINION Arguin g that the evidence was insufficient to prove that he commi t ted aggravated assault, Tommy Jack Lewis Armstrong 1 appeals his conviction , requests that it be reversed, and argues that the Court should render a judgment of

1 The indictment indicates that Tommy Jack Lewis Armstrong is also known as Tommy Jack Armstrong.2 acquittal

. 2 See Tex. Pe nal Code Ann. § 22.02(a)(2) (West 2011 ). We hold that the evidenc e is sufficient to show that Armstrong committed aggravated assault. Therefore , we overrule Armstrong’s sole issue and affirm the trial court’s judgment. The testimony from the trial shows that Armstron g swerved his truck toward Chris ’s 3 truck while the trucks were beside each other and travel ing on an interstate highway. Accor ding to Armstrong, he was justified in following the other truck and pulling alongside it, and he never used his truck in a manne r that was intended to cause Chris an injury

. The State argues that the evidence about the manner Armstrong used his truck allowed the jury to infer that Armstrong used the truck in a manner to threaten Chris with an injury.

2 Armstrong’s sentence was enhanced to a first

- deg ree felony based on his admission that he had previously been convicted of another felony, burglary of a habitation, a second

- degree felony. See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2016) (authorizing an enhanced penalty if it is shown on the trial of a second

- degree felony that the defendant had previously been convicted of a felony other than a state jail felony)

. Throughout the opinion, w e cite the current version of the Texas Penal Code, as any amendment s to the provisions that are cited are not relevant to the issues Armstrong raises in his appeal

.
3 “ Chris” is a pseudonym that is used to conceal the victim’s actual name. See Tex. Const. art. I, § 30 (granting crime victim’s “the right to be treated with fairness and with respect for the victim ’ s dignity and privacy throughout the criminal justice process”).3 Based on the indictment in Armstrong’s case , the State was required to prove that Armstrong intentionally and knowingly threatened Chris with imminent bodily injury by using or exhibit ing a deadly weapon

― a n automobile 4

― in a manner capable of causing serious bodily injury in committing the assault. See
Tex. Penal Code Ann. § 22.01(a)(2) (West Supp. 2016), § 22.02(a)(2). Depending on the manner in which they are used, a utomobile s and trucks are capable of being used as deadly weapons. See Tyra v. State, 897 S.W.2d 796, 798 (Tex . Crim. App. 1995); see also Callison v. State, 218 S.W.3d 822, 8 27 (Tex. App.

― Beaumont 2007, no pet.). In the charge submitted to the jury in Armstrong’s case , the term “deadly weapon” was defined as: “(1) a firearm or anything manifestl y designed, made, or adapted fo r the purpose of inflicting death or serious bodily injur y ; or (2) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” This is the same definition for “deadly weapon” that is found in t he Penal Code. Tex. Penal Code Ann. § 1.07(17) (West Supp. 2016 )

. To prove that Armstrong acted intentionally or knowingly, the State had to show either that it was Armstrong’s “conscious objective or desire to engage in the

4 The indictment states that Armstrong was driving an automobile and the evidence presented by the State indicates that Armstrong was driving a truck. However, the indictment’s allegation th at Armstrong used an automobile does not represent a variance between the indictment’s allegations and the proof, as the term automobile is considered to include vehicles such as truck s . See Nichols v. State, 242 S.W.2d 396 (Tex. Crim. App. 1951).4 conduct or cause the result [] ” or that Armstrong was aware of the nature of, or circumstances surrounding, his conduct. See Tex. Penal Code Ann. § 6.03(a), (b) (West 2011 ). Six witnesses testified in the guilt

- innocence phase of Armstrong’s trial

. However , only t wo of the witnesses , Chris and Armstrong , had personal knowledge about the circumstances surrounding whether Armstrong used his truck in a manner that threatened Chris with an imminent bodily injury

. I n resolving what it believed occurred in the chase, the jury apparently chos e to accept Chris’s
account , in which Chris indicated that Armstrong had swerved toward him as the vehicles were trave ling beside each other at high rates of speed on the highway

. During the trial, Chris testified that while he was driving home one evening , he saw a man and a woman arguing in the street . According to Chris, after he saw the man strike the woman with his fist, the woman ran toward his truck, and he signaled to the woman that she should get in. Chris explained that he did not know who the wom an was, but she was sobbing. Chris indicated that the man ran after the woman as she was running toward his truck , and he testified that he saw the man attempt to prevent the woman from getting into his truck . T he man damaged Chris’s passenger door as he t ried to prevent the woman from leaving with Chris

. Chris explained that he then drove to another street in the neighborhood, but that Armstron g got into his own truck, and found them. According to Chris, when5 he spotted Armstrong’s truck, he drove out of the neighborhood , and a chase ensued. The chase led from the neighborhood to the westbound lanes of Interstate

10, and end ed near the city limits in Beaumont. Chris explained that during the chase, Armstrong pulled beside his truck, where he saw Armstrong “ [ d ] riving, swerving, [and] yelling [] ” while the trucks were trave ling at speeds of ninety miles

- per - hour. Chris testified that w hile the trucks were side

- by

- side, Armstrong

“ swer v ed at us, which made me very nervous. ” Chris indicated during his testimony that the way Armstrong was driving scared him : he thought Armstrong was going to hit his truck

. According to Chris ’s testimony , Armstrong swerved toward him, Chris then swerved to his right, sped up to get away, and ultimately attain ed a speed of about 100 miles

- per - hour

. The chase ended when the police, who Chris had called shortly after the chase began , stopped Armstrong ’s truck

. According to Armstron g , who testified in his own defense , he never swerved toward Chris as the trucks were trave ling side

- by

- side on the highway

. Armstrong also testified that he follow ed Chris’s truck because he did not recognize or know Chris, and he wanted to make sure that his girlfriend , with whom he had been arguing, was okay . Armstrong admitted that on two occasio n s , he pulled beside Chris ’s truck in an effort to get Chris to pull over , but he denied ever swerv ing his truck at Chris in an attempt to cause a wreck . Armstrong also denied that he was attempting to injure Chris by run ning Chris ’ s truck off the road.6 T he testimony from the police officers i nvolved in the chase indicate s they had not taken up the pursuit of Armstrong’s t ruck until he was on Interstate

- 10. According to the testimony of the officers, when Armstrong notice d the y were trying to pull him over , Armstrong pulled onto the shoulder of the highway and stopped. The evidence before the jury included video footage captured by a camera in one of the police cars that stopped Armstrong ’s truck

. However, the video footage d id not include the portion of th e chase where the two trucks were traveling beside each other

. In his appeal, Armstrong contends that the evidence showing the movements of his truck did not allow the jury to rationally conclude that he used his truck in a
manner to threaten Chris with an imminent bodily injury

. See Tex. Penal Code Ann. § 22.0 2 (a)(2). To determine whether sufficient evidence was before the jury to allow it to find Armstrong guilty of aggravated assault, we view all of the evidence in the light that is the most favorable to the jury’s verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. S ee Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (applying the standard identified in Jackson v. Virginia , 443 U.S. 307 (1979) , to Texas cases raising sufficiency challenges); Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson , 443 U.S. at 318

- 19)

. Under t he7 Jackson standard, “The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses.” Temple, 390 S.W.3d at 360 . In this role, the jury may choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Further, the jury is permitted to draw multiple reasonable inferences from facts as long as each is supported by the evidence presented at trial. Temple , 390 S.W.3d at 360. When the record supp orts conflicting inferences, we presume that the jury resolved those conflicts in favor of the verdict and therefore , defer to that determination. Id

. In reviewing whether sufficient evidence is in a record to support a defendant’s conviction, we consider all of the evidence in the record, regardless of whether it was properly admitted. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In considering the inferences the jury made in resolving any conflicts in the evidence, the jury is allowed to consider both direct and circumstantial evidence, as both may be equally probative of the defendant’s guilt. Temple , 390 S.W.3d at 359. A d ditionally, we note that “‘circumstantial evidence alone can be sufficient to establish guilt.’” Id . (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a circumstantial evidence case, each fact need not point directly and independently to the defendant’s guilt , it is enough if the jury’s conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Temple, 390 S.W.3d at 359 (quoting Johnson v. State ,8 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)); Hooper , 214 S.W.3d at 13. After we have reviewed the evidence and given proper deference to the factfinder’s role,

we are required to uphold the verdict unless we conclude that based on the evidence, a rational factfinder must have had reasonable doubt as to any of the essential element s of the offense at issue in the appeal

. See Laster v. State , 275 S.W.3d 512, 518 (Tex. Cr im. App. 2009). Based o n the Jackson standard, and given Chris’s account regarding the chase, the jury was entitled to reject Armstrong’s testimony that he never swerved toward Chris’s truck, he never intended to cause Chris an injury , and he never intended to cause a wreck

. See Johnson v. State , 571 S.W.2d 170, 173 (Tex. Crim. App. 197 8 ) (holding that a jury may choose to believe or not believe all, some or none of the testimony of the wi tnesses who testify in a trial) ; see also Gueva ra v. State, 152 S.W.3d 45, 49

- 50 (Tex. Crim. App. 2004) ( allowing a jury to infer intent from circumstantial evidence including the actions, words, and conduct of the appellant)

. In Armstrong’s case, the jury could rationally believe Chris’s testimony tha t Armstrong swerved his truck toward Chris’s truck while the trucks were
trave ling beside each other at high speed s , that Chris swerve d his truck away from Armstrong’s truck to avoid a collision , and that Armstrong intentionally swerved toward Chris to convey to Chris that if he refused to stop, Armstrong would use his truck to force Chris off the road . Given the speeds involved when Armstrong’s9 condu ct occurred, the jury’s inference that Armstrong use d his truck in a manner to threaten Chris with an imm inent bodily injury was reasonabl y based on the testimony, as viewed in the light most favorable to the verdict

. We hold the evidence authorized the jury to find Armstrong intentionally used his truck in a manner that placed Chris in imminent fear of a bo dily injury

. See Smith v. State, 316 S.W.3d 688, 6 96 (Tex. App.

― Fort Worth 2010, pet. ref’d) (upholding aggravated assault conviction based on the manner the defendant use d his truck). We overrule Armstrong’s sole issue. The trial court’s judgment is affir med

. AFFIRMED.

______________________________ HOLLIS HORTON Justice Submitted on June 10 , 2016 Opinion Delivered October 19, 2016 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.