Opinion issued July 16, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-14-00834-CR

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BOOKER NEWSOME, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1410219

MEMORANDUM OPINION

Appellant, Booker Newsome, was found guilty by a jury of the offense of 

aggravated assault of a public servant by using a deadly weapon, namely a motor 

vehicle. See TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (Vernon 2014). After 

Appellant pleaded true to an enhancement paragraph, the trial court sentenced 
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Appellant to 20 years in prison. In one issue, Appellant asserts that the evidence 

was insufficient to show that he used a motor vehicle as a deadly weapon. 

We affirm. 

Background

On December 2, 2013, John Robertson worked as a facilities campus 

manager for Houston Community College at the central campus. Robertson was 

driving around campus in a golf cart when he saw an altercation between Appellant 

and a young woman. The woman was yelling at Appellant, asking that he leave 

her alone. The woman ran into the middle of the street. Appellant pushed the 

woman down, grabbed her hair, and pulled her across the street by her hair. 

Robertson told Appellant to stop, but he did not comply. Robertson informed 

Appellant that he was calling the police. Appellant stopped assaulting the woman 

and began walking across a campus parking lot. 

Robertson called 9-1-1. Officer M. Levene of the Houston Community 

College Police Department was dispatched to the scene in his marked patrol car. 

Once there, Roberts pointed out Appellant, who the officer saw running away. 

Driving his patrol car, Officer Levene caught up with Appellant. Officer Levene 

got out of his car and yelled for Appellant to stop. Officer Levene was dressed in 

uniform. Appellant was only two to five feet away from Officer Levene. 

Appellant looked at Officer Levene and told him, “You’re not going to catch me.” 
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Appellant continued to run. Officer Levene ran after him. The two ran two 

loops around the campus parking lot. During the foot pursuit, Officer Levene 

yelled continually for Appellant to stop and to raise his hands. Appellant did not 

comply. The foot chase continued for about two minutes until Appellant ran to his 

car, an Impala.

The car was parked in a parking space in the campus parking lot. When 

Appellant reached his car, Officer Levene was not far behind Appellant. Appellant 

got into his car and revved the engine. Appellant then began backing out of the 

parking space. At that point, Officer Levene was behind Appellant’s car, at the 

mid-point of the car. Officer Levene was less than 20 feet away from the vehicle. 

The vehicle began reversing; it was heading toward Officer Levene. Officer 

Levene simultaneously jumped back and drew his firearm, a Glock 21 pistol. 

Officer Levene yelled at Appellant, ordering him to stop the car. Appellant 

continued to reverse toward Officer Levene. Officer Levene then fired his service 

pistol several times into the trunk of Appellant’s car. Officer Levene moved into a 

flanking position, behind Appellant’s car. The officer was still behind the vehicle 

but to the side to allow him to see Appellant. Officer Levene noticed that 

Appellant had not shifted the vehicle into park; rather, Appellant sat with his foot 

on the brake. Officer Levene continued to order Appellant to stop the car and to 

get out. Appellant did not comply. Instead, Appellant’s vehicle again reversed 
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toward Officer Levene. To disable the car, Officer Levene again fired his service 

pistol several times at the back of Appellant’s vehicle, flattening its tire. By this 

point, other police officers had also arrived at the scene. Another police officer 

who arrived fired a shot at Appellant’s car. Neither Appellant nor any other 

persons were hit with gunfire. 

The police ordered Appellant out of the car, but he still refused to get out of 

the vehicle. He sat gripping the steering wheel. Four police officers wrestled with 

Appellant to get him out of the vehicle. Appellant was placed under arrest and 

later charged with the offense of aggravated assault of a public servant. The 

indictment read as follows:

[O]n or about December 2, 2013, [Appellant] did then and there 

unlawfully intentionally and knowingly threaten with imminent bodily 

injury M. LEVINE [sic], hereafter called the Complainant, while the 

Complainant was lawfully discharging an official duty, by using and 

exhibiting a deadly weapon, namely a motor vehicle, knowing that the 

Complainant was a public servant. 

The jury found Appellant guilty of the charged offense. Appellant waived 

his right to a jury during the punishment phase. Appellant pleaded true to an 

enhancement allegation in the indictment, which alleged that he had previously 

been convicted of the offense of possession of a controlled substance with the 

intent to deliver. Appellant stipulated that he had also committed 11 other felony 

and misdemeanor offenses, including drug possession, assault, and trespass. The 

trial court sentenced Appellant to 20 years in prison. 
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Appellant now appeals. He raises one issue in which he asserts that the 

evidence was not sufficient to support the judgment of conviction.

A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a 

criminal offense for which the State has the burden of proof under the single 

sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App. 

2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Pursuant to 

the Jackson standard, evidence is insufficient to support a conviction if, 

considering all the record evidence in the light most favorable to the verdict, no 

rational fact finder could have found that each essential element of the charged 

offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. 

Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster 

v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 

S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient 

under the Jackson standard in two circumstances: (1) the record contains no 

evidence, or merely a “modicum” of evidence, probative of an element of the 

offense, or (2) the evidence conclusively establishes a reasonable doubt. See 

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see 

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
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The sufficiency-of-the-evidence standard gives full play to the responsibility 

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and 

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. 

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 

2007). An appellate court presumes that the fact finder resolved any conflicts in 

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

In our review of the record, direct and circumstantial evidence are treated 

equally; circumstantial evidence is as probative as direct evidence in establishing 

the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point 

directly and independently to the guilt of the appellant, as long as the cumulative 

force of all the incriminating circumstances is sufficient to support the conviction.” 

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Analysis

As charged in this case, a person commits the offense of aggravated assault 

of a public servant if the evidence demonstrates that (1) the person intentionally or 

knowingly threatened another with imminent bodily injury; (2) the person used or 

exhibited a deadly weapon during the commission of the assault; and (3) the 

offense was committed against a person the actor knew was a public servant while 
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the public servant was lawfully discharging an official duty. TEX. PENAL CODE 

ANN. §§ 22.01(a)(2) (Vernon Supp. 2014), 22.02(a)(2), (b)(2)(B). Appellant 

asserts that the evidence is insufficient to support the judgment of conviction 

because the evidence did not show that he used his car as a deadly weapon, as 

alleged in the indictment. 

Section 1.07(a)(17) defines “deadly weapon” as “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. PENAL CODE ANN. § 1.07(a)(17) 

(Vernon 2011); see Mills v. State, 440 S.W.3d 69, 72 (Tex. App.—Waco 2012, pet. 

ref’d) (“Case law has made it clear that the word ‘anything’ in the definition of a 

deadly weapon means just that: anything.”). “Serious bodily injury” means 

“bodily injury that creates a substantial risk of death or that causes death, serious 

permanent disfigurement, or protracted loss or impairment of the function of any 

bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46).

A motor vehicle can become a deadly weapon if the manner of its use is 

capable of causing death or serious bodily injury. Drichas v. State, 175 S.W.3d 

795, 798 (Tex. Crim. App. 2005). Specific intent to use a motor vehicle as a 

deadly weapon is not required. Id. However, to sustain a deadly-weapon finding, 

there must be evidence that others were “actually endangered;” the mere existence 
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of a “hypothetical potential for danger” is insufficient. Cates v. State, 102 S.W.3d 

735, 738 (Tex. Crim. App. 2003). To make this determination, we must first 

evaluate the manner in which the defendant used the motor vehicle during the 

felony, and then we must consider whether the motor vehicle was capable of 

causing death or serious bodily injury during the felony. See Sierra v. State, 280 

S.W.3d 250, 255 (Tex. Crim. App. 2009).

Here, Appellant asserts the State did not establish that he used his car in a 

manner that could have caused Officer Levene serious bodily injury because the 

evidence showed that the car backed out of the parking space at a slow speed and 

traveled only two feet before stopping. Appellant points out that Officer Levene 

testified that he jumped out of the way of the vehicle as it came toward him. 

Appellant asserts that Officer Levene was “never in any real danger of being 

struck” by the car. Appellant avers that his “manner of starting his parked Impala 

then slowly travelling backwards two feet posed no danger to the officer, or 

anyone else.” Appellant asserts that “[a]ny danger was simply hypothetical.” 

The placement of the word “capable” is crucial to understanding the 

definition in determining deadly-weapon status applicable to this case. Tucker v. 

State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing McCain v. State, 22 

S.W.3d 497, 503 (Tex. Crim. App. 2000)). The State is not required to show the 

use or intended use causes death or serious bodily injury; it is only required to 
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show the use or intended use is capable of causing death or serious bodily injury. 

Id.

We first address Appellant’s assertion that the vehicle’s slow speed rendered 

it incapable of being a deadly weapon. Appellant points to his own trial testimony 

in which he stated that he backed the car slowly out of the parking spot. John 

Robertson, the facilities manager who witnessed the incident, also indicated in his 

testimony that Appellant’s car backed slowly out of the spot; however, he testified 

that it appeared to him that Officer Levene was in danger of being injured by the 

vehicle. Robertson agreed that Officer Levene would have been injured if he had 

not gotten out of the car’s way. 

At trial, the State presented testimony directly addressing the dangerousness 

of a slow moving vehicle. Officer Stahlin of the Houston Police Department, who 

conducted an investigation to determine whether Officer Levene had violated the 

law by his use of his firearm, gave the following testimony:

Q. And did you take into account [in your investigation] the fact that 

you didn’t know how fast or slow [the car] was going and how far it 

traveled back in making the determination if the officer [Officer 

Levene] still acted within the bounds of the law?

A. From my experience, I know that a car that is moving slow can still 

knock you to the ground and even if that car is still moving slow, if 
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you get caught underneath it, it can cause serious bodily injury or 

death.1

Thus, the State presented evidence from which the jury could have reasonably 

inferred that the car posed an actual danger to Officer Levene regardless of its 

speed. The danger was not merely hypothetical.

In addition, the facts that the vehicle traveled only a short distance, that 

Officer Levene was 10 to 20 feet away from the vehicle, and that Officer Levene 

jumped out of the way of the car do not show that there was no actual danger to 

Officer Levene. Robertson and Officer Levene testified that Appellant revved his 

engine before backing out of the space. Officer Levene stated that, when he heard 

the engine rev, he thought that Appellant “was going to run me over.” Robertson 

and Officer Levene testified that Officer Levene was behind the car when 

Appellant was reversing. Robertson agreed that Officer Levene would have been 

injured had the officer not moved out of the car’s way. 

Further, the evidence showed that Officer Levene believed that he was 

justified in using force to stop the car as it backed toward him. Evidence was 

presented that an internal police investigation also determined that Officer Levene 

 

1 When asked why he used that description, Officer Stahlin stated that “they are the 

legal words used that kind of justify force.” Officer Levene was never indicted for 

any crime associated with the incident. The evidence also showed that an 

investigation by the Houston Community College Police Department determined 

that Officer Levene’s use of force had been justified and that he had not violated 

any law or any internal department policy. 
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had been justified in his use of force. And, despite the fact that Officer Levene had 

shot the car a number of times, Appellant continued to back up his car a second 

time. The evidence showed that Appellant stopped the vehicle because Officer 

Levene shot its tire, disabling it. In other words, the vehicle traveled only a short 

distance because Officer Levene was effective in defending himself and stopping 

the car. Contrary to Appellant’s position, Officer Levene’s ability to thwart 

Appellant’s escape and jump out of the way of the car does not serve to negate the 

evidence showing that Officer Levene was in actual danger of serious bodily injury 

or death before the vehicle stopped. 

Moreover, the plain language of the deadly-weapon provision does not 

require that the actor actually intend death or serious bodily injury; an object is a 

deadly weapon if the actor intends a use of the object in which it would be capable 

of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 

(Tex. Crim. App. 2000) (emphasis added).

Here, evidence was presented to show that Appellant intended to use the car 

in a manner that was capable of causing serious injury or death. Robertson and 

Officer Levene testified that Appellant revved his engine backing out of the space, 

causing Officer Levene to think that Appellant “was going to run me over.” 

Officer Levene’s and Robertson’s testimony indicated that Officer Levene would 

have been injured had he not moved out of the car’s path. 
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In his defense, Appellant testified that he had no intention of running over 

Officer Levene. Appellant claimed that he did not know Officer Levene was 

pursuing him and he did not know that the officer was behind his car. He stated 

that he never heard Officer Levene yelling for him to stop either during the foot 

pursuit or while he was in his car. Appellant also stated that he had not intended to 

back up the second time, claiming that his foot had slipped off the brake. 

In contrast, the State presented evidence indicating that Appellant knew that 

he was being pursued by Officer Levene and that Officer Levene was behind the 

car. The evidence showed (1) Appellant told Officer Levene that he was not going 

to catch him; (2) Officer Levene chased Appellant on foot for two minutes, circling 

the parking lot; (3) Officer Levene shouted for Appellant to stop during the foot 

chase; (4) Appellant got in his car and revved the engine; (5) Officer Levene 

yelled, ordering Appellant to stop the car; (6) Robertson and another officer 

arriving at the scene heard Officer Levene yelling at Appellant while Appellant 

was in the car; (7) Officer Levene was behind Appellant’s car, when he reversed; 

(8) Officer Levene felt threatened to the point that he drew his weapon and fired

several times into the trunk of Appellant’s car; (9) Appellant stopped the car, but 

did not shift it into park; (10) Officer Levene continued to order Appellant to stop 

the car; and (11) Appellant continued to back up his car. From this evidence the 

jury could have reasonably inferred that Appellant was aware that he was being 
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pursued by Officer Levene, that he was aware that Officer Levene was behind his 

vehicle, and that Appellant intended to use the car in manner rendering it capable 

of causing serious injury or death to Officer Levene. 

Viewing the evidence in a light most favorable to the verdict, we conclude 

that, in the manner Appellant used or intended to use it, a rational fact finder could 

have found beyond a reasonable doubt that the car was capable of causing death or 

serious bodily injury; that is, the jury could have found the car was a deadly 

weapon under the circumstances. We hold that the evidence is sufficient to 

support the judgment of conviction for the offense of aggravated assault of a public 

servant by using a deadly weapon.

We overrule Appellant’s sole issue. 

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).