COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

L ESL I E TI MOTHY CREI GHTON , Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-09-00022- CR

Appea l from the 204th Criminal Dist rict Court of Da llas County , Texas (TC# F- 08-12700-Q)

O P I N I O N A jury convicted A

ppellant of a g g ravated assault ag ainst a public ser vant with a dea dly
wea pon. He wa s sentence d to 6 y ear s’ conf inement and a

$2,500 fine. On appe al, Appellant

1 argues that the trial c ourt err ed bec ause the evidenc e is fac tually insufficient to support his conviction for a g g ravated assault of a public serva

nt with a deadly

wea pon. We affir

m. Fire fig hter Ronald L andis was in the e merg ency bay at B aylor Hospital on J anuar y 11, 2008, when a

woman appr oache d him and repor ted that a man w as assa

ulting a w oman in a ca

r
acr oss the street. L andis saw a man standingby

the driver ’s side door of

a vehic le, and the ma

n
was scr eamingat somebody inside the vehicle . He then told Of fice r Ve rnita Allen, a

secur ity office r at the hospital what he had se en and she called the police.

Appellant wa s convicted at trial of ag g ravated assault ag ainst a public ser vant with a 1 deadly wea pon and eva ding a

rre st or detention using a motor vehic le, and he was sente nced concur rently for the two of

fense s. Appellant has a

ppeale d both convictions and this Court has addre ssed them as c ompanion case s.When L andis and Of fice r Allen a

rrived at the parking

lot, they saw the ma

n, who was later ide ntified as Appe llant, stil l standing outside the c ar a nd arguing w ith a woman who wa s sitti ng on the passeng er’ s side. Then, Of fice r Mateo D . Villarea l and another office r ar rived on the sce ne. Offic er V illarea l identified himself to Appellant, and looke d into the vehicle with a

2 flashlig ht while standing beside the r ear passeng er’ s side of the ve hicle. Of fice r Villare al told Appellant to wait bec ause he wanted to talk to him, but Appellant g ot in the car and starte d backingup. Offic er V illarea l and another office r had to step out of the way as Appe llant backe d the vehicle . Appellant then put the ve hicle into forwa rd and turne d its wheels towar ds Offic er Villarea l, and drove forwa rd. Off icer Villarea l jumped out of the way as Appe llant drove towards him, and the of

fice rs eve ntually

lost sight of Appe llant as he c ontinued throug h the parkinglot. Meanwhile, Offic er H enry Var g as re sponding to a

dispatch ar

rived a t the parkinglot and
saw a J eep Che rokee headingtowards the ma in exi t. The off icer turned on his lights a

nd siren, and starte d following the J eep that drove throug h a woode n exit g ate a rm. After chasingthe J eep for a substantial distance, it eve ntually pulled over a

nd stopped. Off

icer Var g as pulled in front and exited his patrol car , with his weapon dra wn. Off icer Stanley G. Snead a

rrived a s back up. Offic ers Va

rg as and Snea d drewtheir we apons and told the drive r to kee p his hands on the steeringwhee l. Appellant was ide ntified as the dr iver of the J eep. Appellant wa s indicted for the offe nse of a g g rava ted assault of a

public serva

nt with a

Offic er V illarea l is a police off icer at the B aylor Hea lth Care Sy stem Depa rtment of 2 Public Safety
. -2-deadly

wea pon. He e ntere d a plea

of not g uilty

to a jury . The jury

found him g uilty

of first 3 deg ree felony , and asse ssed punishment at six y ear s’ conf inement and a

$2,500 fine. Appe llant filed a notice of appe al to appea l this j udg ment of convic tion on November 12, 2008. In two issues, Appellant ar g ues the e vidence is factua lly insufficient to support his conviction for a g g ravated assault of a public serva

nt. Howeve r, since A

ppellant’s brie f wa s filed, the Texas Court of Criminal Appeals has r uled that the only

standard a

pplicable to dete rmine whether the evidenc e is sufficie nt to support each e lement of a criminal off

ense is the Jack

son v. Virginia leg al suffic iency standard. See B rooks v. State , 323 S.W .3d 893, 912 (Tex.Crim.App. 2010). Ther efor e, in the intere sts of justice, and in light of the Brooks decision, we will construe I ssues One a

nd Two as c halleng es to the leg al suffic iency of the e vidence
. See id . at 898-900. A leg al suffic iency

revie w re quires the a

ppellate c ourt to determine whether , “[c]onsi deringall the evidenc e in the lig ht most favorable to the verdic t, was a jury rationally justified in finding guilt bey ond a re asonable doubt.” See B rooks , 323 S.W .3d at 899, citing Jack son v. Virginia , 443 U.S. 307, 319, 99 S.C t. 2781, 2789, 61 L .Ed.2d 560 (1979). When conductingsuch a r eview, this Court is require d to defe r to the jury ’s role a s the sole judg e of witness cre dibilit y , and the we ight of their testimony

is to be aff

orded. Brooks , 323 S.W .3d at 899. A per son commits assault if he intentionally or knowing ly

threatens another

with imminent bodil y

injury . T E X .P E N A L C O D E AN N . § 22.01(a) (2)( West S upp. 2010). The statute elevates simple assault to ag g ravated assault whe n the per son “uses or e x hibits a deadly wea pon duringthe commission of the assault.” T E X .P E N A L C O D E AN N . § 22.02(a) (2). When a pe rson
The a g g ravated assault off ense w as with respe ct to Offic er V illarea l. 3 -3-commits ag g ravated assault ag ainst a per son he knows is a public ser vant while the public
serva nt is lawfully

discharg ing a

n officia l duty , the offe nse is a first de g ree felony
. Id . at § 22.02(b)( 2)(B ). In I ssue One, A

ppellant ar gues the e vidence is factua lly insufficient to establish that he had the intent to threaten Off icer Villarea l with imm inent bodily harm. He asser

ts the evidenc e showed he intended to leave the sce ne, and not to hit or threaten Off icer Villarea l with the vehicle. A

ppellant ar g ues the e vidence showed that he turned the wheels of his ve hicle to the rig ht, and that he did not run onto the c urb whe re O ffice r Villare al stood, which indicate he lacke d an intent to hit the office r. F inally , Appellant cla ims the evidence is factua lly insufficient to show that he wa s awa

re O ffice r Villare al was a police off

icer instead of a

secur ity guard. Appellant conte nds there w as an a bsence of cle ar e vidence indicating he knew that Offic er Villarea l was the pe rson y elling f or him to stop on the night of the inc ident beca use there wer e other sec urity

g uards ne arby

as we ll. At trial, Off

icer Villarea l testified he wa s dressed in f ull police uniform with a police badg e “pr ominently

display ed” on his c hest on the nig ht in question. I n his brief, Appe llant ag ree s Offic er V illarea l was in police unifor m when he a

rrived on the scene . Section 22.02(c) of the Penal Code c reates a pre sumption t hat an a ccuse d knew that “ the per son assaulted wa s a public serva

nt . . . if the person w as we aringa distinctive uniform or ba dg e indicatingthe person’ s employ

ment as a public se rvant . . . .” T E X .P E N A L C O D E AN N . § 22.02(c) (West Supp. 2010). Ther efor e, we deter mine the evidenc e is fac tually sufficie nt to establish the statutory presumption that Appellant knew Offic er V illarea l was a public se rvant. The Pena l Code provides that “[a] person ac ts intentionally . . . with respec t to the nature
-4-of his conduct or to a re sult of his conduct when it is his conscious objective or desire to e ng ag e in the conduct or

cause the re sult.” T E X .P E N A L C O D E A N N . § 6.03(a) (West 2003). A per son acts knowing ly

with respec t to the nature of his conduct “when he is a war e of the nature of his conduct or

that the circ umstances e x ist.” Id . at § 6.03(b). Adefe ndant’s intent or knowle dg e is a question of fa ct, which is dete rmined fr om the totality of the c ircumstance s. See Sm ith v. State , 965 S.W .2d 509, 518 (Tex.Crim.App. 1998); Dobbins v. State , 228 S.W .3d 761, 764 (Tex.App.-- Houston [14t h Dist.] 2007, pet. dism’d, untimely filed). The State can pr ove a de fenda nt’s intent or knowledg e without evidenc e of thre atening languag e or g estures, a

nd the jury

may infer the exis tence of either

mental state fr om any

fac ts tending to prove its ex istence, inc luding the defe ndant’s ac ts, words, and c onduct. Dobbins , 228 S.W .3d at 765. The e vidence , taken in the lig ht most favorable to the verdic t, shows that when Of fice r Villarea l arrive d on the sce ne, he a pproac hed the pa sseng er side of Appellant’s ve hicle and indicated in a ve ry

loud voice that he ne eded to talk to Appe llant. Appellant did not follow the office r’s instructions, and instea d beg an bac king his ve hicle. Appe llant then stopped, put his vehicle into drive , and turne d the vehicle ’s whee ls towards Off icer Villarea l, who was standing about ten fe et awa

y from the f

ront of Appe llant’s vehicle. A fter O ffice r Villare al y elled at Appellant to stop sever al times, and Appe llant failed to do so, the off icer pulled a gun from his holster and pointed it towar ds the vehicle . Acc ordingto Office r Villare al, he took out his g un beca use he “ was in imminent fear of [his] life.” A

ppellant subsequently

acc eler ated towa

rds the office r, which r equire d Offic er V illarea l to jump ont o a cur b to ge t out of harm’s wa y . Severa l office rs testified Appe llant’s tires scre eche d as he dr ove towar ds Offic er V illarea l, and this sound indicated Appe llant was not planningto stop his vehicle. Acc ordingto L andis, Appellant c ould
-5-have g one by Offic er V illarea l “without turning the whee ls at all towards him.” Havingrevie wed the r ecor d in the light most favor able to Appe llant’s verdic t of ag g rava ted assault of a

public serva

nt with a deadly

wea pon, we c onclude the jur

y was rationally justified in finding Appe llant had the re quisite intent to commi t the char g ed off ense. See B rooks , 323 S.W .3d at 899. We conclude the evidenc e is leg ally sufficie nt to show Appellant intended to threaten a public se rvant with imminent bodily harm. See id . Acc ording ly , I ssue One is
overr uled. In I ssue Two, Appe llant argues the e vidence is factua lly insufficient to prove the vehicle
was a deadly wea pon in the manner

of its use. Althoug h he conc edes that severa l witnesses testified Appellant turne d the whee ls of his vehicle towa rds Off icer Villarea l, and that the off icer was fr ighte ned by

the incident, Appe llant argues other e vidence from the sa me witnesses showe d he wa s merely

trying to e x it the parkinglot. Appellant contends the of fice rs’ testimonies that he did not stop t he vehic le, and that he swerve d to the rig ht to ge t away from Of fice r Villare al, only showed that Appe llant desired to leave the pa rkinglot. The Pena l Code provides that a “ deadly wea pon” mea ns “a f irea rm or any thing manif

estly desig ned, made , or ada

pted for the purpose of

inflicting de ath or ser ious bodily injury ,” or “any thing that in the manne r of its use or intende d use is capa ble of c ausingdeath or

serious bodily injury .” T E X .P E N A L C O D E AN N . § 1.07(a) (17)( West S upp. 2010). The pla in lang uag e of this provision does not require the a ctor a ctually intend death or

serious bodily

injury --it only require s the ac tor to intend the use of a n object such that it would be capa ble of c ausingdeath or serious bodily

injury
. McCain v. State , 22 S.W .3d 497, 503 (Tex.Crim.App. 2000). Objects that
are usually

not considere d dang erous we apons may become so dependingon the manner in
-6-which they are used during

the commission of an off ense. Drichas v. State , 175 S.W .3d 795, 798 (Tex.Crim.App. 2005). A motor vehicle c an bec ome a de adly wea pon if the manne r of its use is capa ble of c ausingdeath or

serious bodily

injury
. Id . Specific intent to use a motor vehicle a s a deadly wea pon is not required. Id . Howeve r, to sustain a dea dly wea pon finding , there must be evidenc e that other s were “ac tually endang ere d;” the mer e existence of a “hy pothetical potential for da ng er” is insufficient. Cates v. State , 102 S.W .3d 735, 738 (Tex.Crim.App. 2003). To make this deter

mination, we must first evaluate the manner in which the def

endant use d the motor vehicle dur ing the felony , and then we must consider whe ther the motor ve hicle wa s capa ble of c ausingdeath or

serious bodily

injury duringthe fe lony
. See Sie rra v. State , 280 S.W .3d 250, 255 (Tex.Crim.App. 2009). The e vidence , taken in the lig ht most favorable to the verdic t, shows Appellant turned the whee ls of his vehicle towa rds Off icer Villarea l after

the offic er a sked him to stop. Appellant then ac cele rate d the vehicle and drove towards the of fice r at a high spe ed, with the tires of his vehicle sc ree ching . The off icer had to jump out of the way to avoid beinghit by

Appellant’s vehicle. A t trial, Offic er V illarea l testified that he fe are d for his life at that particular moment, and that Appe llant’s conduct c aused him to fee l threate ned with imminent bodily injury
. Havingrevie wed the r ecor d in the light most favor able to Appe llant’s verdic t of ag g rava ted assault of a

public serva

nt with a deadly

wea pon, we c onclude the jur

y was rationally justified in finding that the ve hicle Appe llant used constituted a dea dly wea pon in the manner

of its use. See B rooks , 323 S.W .3d at 899. The of fice rs’ testimonies and other evidenc e could have led the jury

to rea sonably

conclude that Offic er V illarea l was “a ctually endang ere d” by

the
manner in which Appellant wa s driving his ve hicle. As such, the evidenc e is leg ally sufficie nt to
-7-support the jury ’s dea dly wea pon finding
. See B rooks , 323 S.W .3d at 899. Acc ording ly , I ssue Two is overr

uled Havingoverr

uled Appellant’ s issues presente d for r eview, w e af firm the trial c ourt’s judgme nt.

Marc h 2, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., Rivera, J., and L arse n, J
. L arse n, J . (Sitti ng by

Assignme nt) (Do Not Publish)

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