Jones v. State, No. 07-06-0164-CR (Tex. App. 10/4/2007)
| Decision Date | 04 October 2007 |
| Docket Number | No. 07-06-0164-CR.,07-06-0164-CR. |
| Parties | JEROD W. JONES, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 140th District Court of Lubbock County, No. 2005-409401, Honorable Jim Bob Darnell, Judge.
Panel C: Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Jerod W. Jones, was convicted by a jury of aggravated assault, enhanced. He was sentenced to fifty years confinement by the trial court. In challenging his conviction, he presents three issues by which he maintains (1) the evidence is legally and (2) factually insufficient to show that he intentionally, knowingly, or recklessly committed aggravated assault with a deadly weapon by hitting Tanji Garcia with his vehicle and (3) the trial court erred in overruling his objection to photographs of Garcia's injuries based on Rule 403 of the Texas Rules of Evidence. We affirm.
On the evening of May 19, 2005, Appellant, Chad Holmes, and Aaron Holmes decided to go to the Branch Office Bar and Grill to play pool. Appellant drove them there in a black Ford truck he had borrowed from his girlfriend, Kelli Ortega.1 When he arrived at the bar, Appellant parked in the lot nearest the front of the bar. After entering the bar, Chad ordered a beer and requested quarters to play pool, but was immediately turned away after Appellant and a male patron exchanged words outside the bar.
Juan Leroy Arriaga testified that he left the bar to go to his car for cigarettes when "three dudes" "started running their mouth[s] and wanting to fight me . . . ." Arriaga went back in the bar to find his brother, Junior. A group of people from the bar, the bar's owner, and the bartender disbanded the group before any fighting broke out and asked Appellant and his friends to leave. The confrontation occurred in the early morning hours of May 20th.
Appellant and his friends drove to Appellant's mother's house. They were there briefly before realizing that Aaron had left his sandals in the parking lot after removing them in anticipation of a physical encounter. Aaron testified that except for his work shoes, those sandals were the only other pair of shoes he owned and they decided to return to the bar to retrieve them. This time, to avoid a conflict, Appellant parked the truck in a shopping center parking lot located across the street from the bar.
According to Chad and Aaron, they didn't get to search for the sandals because a group (testimony indicates anywhere from six to fifteen persons) exited the bar and began chasing them. They returned to the truck to drive away as the crowd was yelling and hitting the truck. Appellant backed out of the parking space, drove over a curb, and ended up in the bar's parking lot where he struck Tanji Garcia as she was walking toward her boyfriend's car.
Appellant drove to Chad's apartment and parked the truck. Chad then drove Appellant and Aaron home in his vehicle to avoid being spotted by anyone from the bar who may have followed them. According to Chad and Aaron's testimony they did not realize they had struck a pedestrian until it was reported on the news.
Paramedics and law enforcement were called to the scene. According to a paramedic, Garcia sustained severe injuries to her face. Police officers interviewed witnesses and found an unopened beer can and a pair of flip flop sandals in the area. The black truck driven by Appellant was located and hair strands matching Garcia's hair were found in the right front bumper. Officers traced the truck to Kelli Ortega. She testified that she was working that night and had lent her truck to Appellant.
By his first two issues, Appellant challenges both the legal and factual sufficiency of the evidence to support his conviction. When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2006); Tex. Penal Code Ann. § 2.01 (Vernon 2003).
Evidence is legally insufficient if, when viewed in a light most favorable to the prosecution, a rational trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006). This standard is the same in both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001). In measuring the legal sufficiency of the evidence to sustain a conviction, we measure the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This is done by considering all the evidence that was before the jury—whether proper or improper—so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. When conducting a factual sufficiency review, we examine all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006). We cannot reverse a conviction unless we find some objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In other words, we cannot conclude that Appellant's conviction is "clearly wrong" or "manifestly unjust" simply because we disagree with the jury's verdict Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
A person commits an assault if the person either intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). A person commits an aggravated assault if the person commits an assault as defined in § 22.01 and the person either causes serious bodily injury to another, or uses or exhibits a deadly weapon during the commission of the assault. § 22.02(a). Thus the State was required to prove that Appellant intentionally, knowingly, or recklessly caused serious bodily injury to Garcia or used or exhibited a deadly weapon during the commission of the assault.2
The evidence established that Appellant was driving the black Ford truck that struck Garcia and caused severe facial injuries. Several police officers testified that the vehicle Appellant was driving was capable of causing death or serious bodily injury. See § 1.07(a)(17)(B) (defining deadly weapon). Accordingly, Appellant challenges the sufficiency of the evidence as it pertains to the element of intent and maintains that Garcia's injuries were the result of a "terrible accident."
The court's charge included all three culpable mental states. Because the State alleged all three theories of mental culpability, the evidence is sufficient to support Appellant's conviction if it establishes that he acted with any one of three mental states charged in the indictment. Rogers v. State, 774 S.W.2d 247, 251 (Tex.Crim.App. 1989), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989), overruled on other grounds, Peek v. State, 106 S.W.3d 72, 79 (2003); Paschal v. State, 35 S.W.3d 80 (Tex.App.-Texarkana 2000, no pet.). Thus, we will review the evidence to determine if it is sufficient to establish that Appellant acted recklessly in causing Garcia's injuries.
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id. Whether a defendant committed an offense with the requisite mental state is a question of fact to be determined by the trier of fact from all the evidence presented. Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App. 1974); State v. Hart, 905 S.W.2d 690, 693 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). A culpable mental state may be inferred from circumstantial evidence such as acts, words, and the conduct of the accused. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004). See also Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998).
According to Juan Leroy Arriaga's testimony, when the bar closed, he and his friends went outside into the parking lot and noticed that Appellant and his two friends had returned. He speculated they were there waiting for them to come out of the bar. Arriaga claimed that Appellant and his friends were crossing the street toward him and his group so they crossed the street to meet them halfway. They argued and were going to fight when Appellant and his friends ran back to their truck. Arriaga denied that any weapons or pool cues were brandished. Arriaga's recollection then places him, his brother, Junior, and Tanji Garcia in the bar parking...
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