Wash. v. State
| Decision Date | 31 August 2010 |
| Docket Number | Nos. 2-08-442-CR, 2-08-443-CR, 2-08-444-CR.,s. 2-08-442-CR, 2-08-443-CR, 2-08-444-CR. |
| Citation | 326 S.W.3d 302 |
| Parties | Wendell Marquise WASHINGTON, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Richard Alley, Fort Worth, TX, for Appellant.
Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Chief Appellate Section, and Danielle A. Kennedy, Sarah E. Burner, and Brock H. Duke, Assistant District Attorneys, Fort Worth, TX, for The State of Texas.
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
Appellant Wendell Marquise Washington appeals his convictions and sentences for assault causing bodily injury to a publicservant, evading arrest or detention, and delivery of a controlled substance. He contends in five points that the evidence is factually insufficient to sustain his convictions, that his conviction and sentence for evading arrest or detention violates his rights against double jeopardy, and that the trial court erred by sentencing him as a first-degree felon for the state jail felony of evading arrest. We affirm.
A grand jury indicted Appellant for two counts of assault causing bodily injury to a public servant, two counts of evading arrest using an automobile, and one count of delivery of a controlled substance. The State waived one count of the evading arrest charge, and Appellant pleaded not guilty to all remaining charges.
Officer Ronald Jeter, an undercover officer with the narcotics division of the Fort Worth Police Department, testified that he routinely participates in narcotics buy-bust operations. Officer Jeter testified that a buy-bust operation targets a location where drugs are sold in open areas, that an undercover officer will attempt to purchase narcotics, and that the undercover officer will leave the area and signal other officers to move in and arrest the individual who sold the narcotics.
During a buy-bust operation on April 23, 2008, Officer Jeter drove an undercover vehicle to a convenience store on East Rosedale Street in Fort Worth. When he arrived, he saw a white Cadillac with a person in the driver's seat and another person standing at the passenger window. As he passed the white Cadillac, the black male at the passenger window said, "Hey, man, what do you want?" Officer Jeter testified that he told the man, "I'm looking for a 20." Officer Jeter testified that Appellant then said, "I got you," stepped out of the driver's side of the white Cadillac, and walked to the passenger side of Officer Jeter's undercover vehicle. Officer Jeter gave Appellant a twenty dollar bill, and Appellant gave Officer Jeter a blue baggie containing what appeared to be crack cocaine.1
Appellant then returned to the white Cadillac and sat in the driver's seat. A woman that had been across the street got into the white Cadillac on the passenger's side. Officer Jeter drove away slowly and gave the arrest signal. Some of the arrest team arrived on foot, and Sergeant Steven Enright and Corporal Charles Combs parked an unmarked, blue vehicle behind the white Cadillac to block its exit. As he watched the arrest team converge on the white Cadillac, Officer Jeter observed the white Cadillac back into the blue vehicle, turn around, and speed away.
On cross-examination, Officer Jeter testified that although the blue vehicle that Sergeant Enright and Corporal Combs used to block the white Cadillac was an unmarked car without lights on top, Sergeant Enright and Corporal Combs wore black boots, blue jeans, and "a raid vest with State's Gang Unit on one side, Police on the other, large police letters on the back." Officer Jeter prepared his report within hours of the incident and used the name "Kevin Jackson" in the report based on information received from other officers,2 but he identified Appellant as the person that sold him the crack cocaine from a photograph the next day.
Officer Jeter testified that he later learned that the white Cadillac hadwrecked in a ditch. After arriving at the scene of the wreck, Officer Jeter went into a nearby convenience store, spoke with the convenience store clerk, and retrieved the twenty dollar bill he had given Appellant to purchase the crack cocaine.3 Officer Jeter also testified, however, that video footage from the convenience store showed a black female, not a black male, giving the twenty dollar bill to the clerk.
Corporal Combs testified that he wore a metal badge, a weapon, and his "raid gear" on April 23, 2008; his raid gear has "POLICE" prominently displayed on one shoulder and "gang unit" on the other shoulder. He and Sergeant Enright, who was dressed in the same manner, were parked around the corner from the convenience store when Officer Jeter signaled that he had purchased the crack cocaine from Appellant; Corporal Combs was driving, and Sergeant Enright was in the passenger seat. With the red and blue lights flashing, Corporal Combs pulled the unmarked, blue police car into the convenience store parking lot and parked approximately fifteen to twenty feet behind Appellant's white Cadillac. Officer Allen approached the white Cadillac on foot, with his weapon drawn, yelling "Fort Worth Police."
Sergeant Enright exited the vehicle and stood outside the police car, behind the door. Corporal Combs testified that he was exiting the vehicle, with one foot outside the door, when Appellant drove the white Cadillac backward "at a high rate of speed." He stated, "[Appellant] hit the front of our car, and it threw me up over the front steering wheel because I was kind of stepping to get out of the car, so I did not even see the car coming at us." He said the collision was hard enough to throw him over the steering wheel, wedge his head between the windshield and dash, and slam him back into the seat; he testified, "I was dazed[,] and it knocked the wind out of me." Corporal Combs testified that he felt pain in his chest, that he could not breathe, and that he hit his head hard enough that he "couldn't realize exactly just what had happened." Corporal Combs did, however, watch the white Cadillac drive away and testified that "it was probably on its way to well over a hundred miles an hour."
On cross-examination, Corporal Combs agreed that someone in front of the unmarked, blue vehicle could not see what was written on the back of his raid gear and probably could not see the writing on the front of his raid gear because the dashboard was still in front of him. Corporal Combs testified, however, that Sergeant Enright had completely exited the vehicle and was standing up at the time of the collision. Corporal Combs testified that he and Sergeant Enright arrived before Officer Allen approached the white Cadillac from the front, that he could see Officer Allen, the wording on his vest, and his firearm, and that he could hear Officer Allen yelling at Appellant. He also testified that Appellant turned as he was backing up and looked directly at him and Sergeant Enright.
Sergeant Enright testified that once Corporal Combs pulled the unmarked, blue police car into the parking lot, he started exiting the vehicle, saw Officer Larry Carnes approaching the white Cadillac on foot with his weapon drawn, and heard Officer Carnes yelling, 4 SergeantEnright testified that as he exited the car, he saw the Cadillac's reverse lights come on and the driver look backward over his right shoulder and accelerate the Cadillac toward the blue police car. Sergeant Enright testified that he was still standing behind the door of the police car and that the impact between the Cadillac and the police car caused the door to hit him and throw him backward three or four feet.5 After being knocked backward, Sergeant Enright ran forward toward the Cadillac, saw that the passenger window was open, drew his weapon toward Appellant, and told Appellant to stop. Sergeant Enright testified that he was six to seven feet from Appellant when he told him to stop, that Appellant ducked down and raised his arm in a defensive position as if he were about to be shot, that Appellant did not stop, and that Appellant instead accelerated the Cadillac and drove away at a high rate of speed. He testified that the white Cadillac's tires were squealing, that the car was kicking up dirt, and that the speed was dangerously excessive.
Officer Mark Reese testified that following Appellant's arrest on April 24, 2008, he transported Appellant to jail. Officer Reese testified that during the transport, Appellant initiated conversation with him and said,
At the conclusion of the guilt-innocence phase, the jury found Appellant guilty of both counts of assault causing bodily injury to a public servant, the sole count of evading arrest using an automobile with an affirmative deadly weapon finding, and the sole count of delivery of a controlled substance. Appellant elected to have the trial court determine his punishment, and the trial court sentenced Appellant to thirty years' confinement for each count of assault, forty years' confinement for evading arrest or detention,6 and ten years' confinement for delivery of a controlled substance, with all sentences to run concurrently. Appellant timely filed notice of these appeals.
In his third, fourth, and fifth points, Appellant contends that the evidence is factually insufficient to sustain his convictions. Although Appellant does not differentiate between legal and factual sufficiency within his arguments, Appellant cites cases addressing only the factual sufficiency of evidence. See Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996); Ward v. State, 48 S.W.3d 383 (Tex.App.-Waco 2001, no pet.). Thus, we address only the factual sufficiency of the evidence. See Tex.R.App. P. 38.1, 47.1.
When reviewing the factual sufficiency of the evidence to support a...
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