CHRISTOPHER CLINTON HUSSEY v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Murphy

Christopher Clinton Hussey challenges the sufficiency of the evidence to support his conviction for aggravated assault against a public servant with a deadly weapon.   We affirm.

BACKGROUND

While on patrol the afternoon of September 1, 2002, Pottsboro police officer Brian McClaran encountered Hussey, who was trying to fix a stop sign he hit with his Ford Expedition.   While talking to Hussey, McClaran smelled alcohol and noticed Hussey's speech was slurred and his balance was unsteady.   McClaran also noticed a long gun case in the Expedition that extended from the floor past the passenger seat.   Hussey admitted he had a gun in the back of the car.   McClaran told Hussey he was under arrest for public intoxication and instructed Hussey to turn around and put his hands behind his back.   Hussey ignored McClaran's instructions and pushed McClaran away and drove off in the Expedition.   McClaran followed Hussey in his patrol car.   About a half mile down the road, Hussey pulled into a parking lot, stopped, opened his door, and motioned for McClaran to come up to his car.   Instead, McClaran got out of his patrol car and pointed his gun at Hussey.   Hussey drove off again.

Two officers joined McClaran's pursuit of Hussey.   At one point during the chase, Hussey stopped in the middle of the road, put his car in reverse, and started backing toward the officers.   To avoid being rammed, McClaran moved his patrol car.   According to McClaran, Hussey stopped again, got out of the car, and “raised the gun up and pointed it at [McClaran].”   McClaran was still in his patrol car and was “scared to death.”   After pointing the gun at McClaran, Hussey “look[ed] down as if he [was] fixing to shoot,” and then got back in the car and drove off.

A third officer, Paul Middleton with the Texas Department of Public Safety, heard a radio report that Hussey was heading in his direction.   Middleton tried to deploy spikes to stop Hussey's vehicle, but Hussey passed Middleton before he was able to set up the spikes.   Middleton testified Hussey “swerved” over to the side of the road toward Middleton's patrol car at a “terribly high rate of speed,” spraying Middleton with gravel.   He “truly believe[d] that if [Hussey] had had more time, knowing where [Middleton] was at, that [Hussey] would have probably tried to sideswipe [Middleton's] unit.”   Middleton joined the pursuit and estimated Hussey was driving over ninety miles per hour.   According to Middleton, Hussey was passing cars, driving on the wrong side of the road, and ran several cars off the road.

The officers chased Hussey toward Corporal Merle Collins, another DPS officer.   Collins was parked on the side of the road several miles away, preparing to deploy spikes.   Collins got the spikes from his trunk and left the trunk lid open to avoid being seen.   Hussey was driving in the wrong lane as he approached Collins, and Collins thought Hussey “was going to intentionally ram [Collins's] patrol car.”   Collins was standing at the back of his patrol car and believed there was “no possible way” Hussey could have seen Collins as Hussey passed.

Collins deployed the spikes when Hussey was about ten to twenty feet away.   Collins heard “a very loud boom” before Hussey drove over the spikes.   From the noise, Collins concluded Hussey had just shot at his patrol car or him;  he “just didn't know exactly where the round went.”

After Collins removed the spikes and the pursuing officers had passed, Collins went to the front of his vehicle and discovered his patrol car had been hit by gunfire.   Collins estimated Hussey came within three or four feet of his vehicle.   He concluded it would have been “extremely difficult” for Hussey to see inside his patrol car with the white flashing “wig-wag” lights and the glare from the windshield.   Also, from Hussey's speed and “everything Hussey was doing,” Collins did not believe “Hussey could tell whether or not anybody was inside” the patrol car when he passed.

Both McClaran and Middleton also agreed Collins was not visible when they passed his patrol car.   McClaran testified Hussey was “fairly close” to Collins's patrol car when they passed, and although he did not hear the gunshot, McClaran “saw what looked like powder or white smoke come off ․ the windshield area” of the front of the car.   Middleton said it looked like they had passed an officer “sitting on the side of the road” with his lights on.   Middleton also explained that “a lot of times,” troopers run two-man units in which the passenger would deploy spikes and the other officer would remain in the driver's seat.   Middleton confirmed the “windshield got hit right in the front of the driver's side window”;  he concluded Hussey had to have the gun sticking out the car window to hit Collins's windshield.

After hitting the spikes, Hussey swerved over to the shoulder of the road.   He got out of the Expedition and came around the back of the car with his shotgun in hand, waving it around.   Seeing the patrol cars, Hussey got back into the Expedition and drove off with three flat tires.   Unable to control the vehicle, Hussey pulled over to the shoulder and “high centered it on a driveway culvert,” leaving him unable to move.   Hussey again exited his car with the shotgun.

McClaran testified that Hussey was stumbling when he got out of the car and “looked more intoxicated” than when McClaran first encountered him.   Middleton testified Hussey was incoherent, staggering around, and “pointing the gun” at himself as if he were going to shoot himself.   Hussey told Middleton to “shoot him in the chest”;  “he wanted to die.”   The “rest of the time, [Hussey was] trying to make a deal,” telling Middleton he would put his shotgun down if Middleton put his pistol down.   The officers eventually subdued Hussey and arrested him.

Collins described that day as “the most serious day” of his career.   He testified that “if there is a patrol car sitting there with lights on, [you have to assume] there is a trooper somewhere either in or around that car.”   He felt threatened and that his “life was in danger,” not only when he thought Hussey was going to ram his patrol car but also when Hussey “fired a round.”

Hussey testified that although he remembered “some parts” of the chase, he did not remember much of what happened.   Nor did Hussey remember driving past Collins or firing his shotgun.   Hussey had been “drinking” Xanax pills from the bottle and “chasing” them with alcohol, “trying to kill [himself].”   Just before his encounter with McClaran, Hussey had committed armed robbery of an Eckerd drug store, using a sawed-off shotgun he had altered earlier in the day.¹  Hussey testified he should not walk out the door for what he did to Collins.   Yet he claimed that firing at the trooper's window should not have threatened Collins because “there [was] no reason for [Hussey] to have shot that car like that.”   He admitted he “[could]n't doubt” Collins's testimony that Collins felt threatened by Hussey's act.   Hussey said he did not intend to hurt or kill Collins;  as he was approaching Collins's patrol car, he only wanted the officers to stop chasing him so he could “get somewhere and finish taking those pills.”   He also admitted pleading guilty to threatening people in the drug store during the robbery.

After hearing testimony from the three officers and Hussey, as well as viewing the dash-cam videos of the chase, the jury found Hussey guilty of aggravated assault against a public servant with a deadly weapon and assessed punishment at thirty years' imprisonment.   The trial court ordered his sentence to run concurrently with the sentences assessed on the two aggravated-robbery offenses.

SUFFICIENCY OF THE EVIDENCE

In two issues, Hussey complains the evidence is both legally and factually insufficient to support his conviction.   After Hussey filed his brief, the Texas Court of Criminal Appeals decided Brooks v. State, holding that the only standard for determining the sufficiency of the evidence to support each element of a criminal offense is the Jackson v. Virginia standard.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   We therefore address Hussey's issues under that standard, which requires that we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 323 S.W.3d at 899–900.   We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters.  Jackson, 443 U.S. at 326;  Brooks, 323 S.W.3d at 900.

Hussey specifically contends the evidence is insufficient to establish he intended to threaten Collins.   To prove beyond a reasonable doubt Hussey committed aggravated assault against a public servant with a deadly weapon, the State was required to establish Hussey intentionally or knowingly threatened Collins with imminent bodily injury by discharging a firearm at or in the direction of Collins and Hussey knew Collins was a public servant lawfully discharging an official duty.   See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B) (West 2011).   A person acts intentionally “with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or to cause the result.”   Id. § 6.03(a) (West 2011).   A person acts knowingly “with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.”   Id. § 6.03(b).  A defendant's intent or knowledge is a question of fact to be determined from all the circumstances.   See Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App.1998);  Dobbins v. State, 228 S.W.3d 761, 764 (Tex.App.—Houston [14th Dist.] 2007, pet. dism'd).   Direct evidence of intent is not required.   See Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002).   Rather, a jury may infer the defendant's intent or knowledge from his words, acts, and conduct at the time of the offense.   See id. (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999)).

Hussey asserts the evidence is insufficient to show he intentionally or knowingly threatened Collins because neither the witnesses nor the dash-cam videos established Hussey shot at Collins's vehicle or that “he was trying to shoot Collins, who was not in the vehicle at the time.”   Hussey also claims the evidence is insufficient to show he acted with the intent to harm anyone other than himself.   We disagree.

Contrary to Hussey's assertions, there is no evidence that anyone other than Hussey shot at or in the direction of Collins's patrol car.   Hussey admitted to having a loaded, sawed-off shotgun in the car.   At one point during the chase, he pointed the shotgun at McClaran.   Just before Hussey drove over the spikes, Collins heard “a very loud boom,” which he confirmed was consistent with a shotgun blast.   Immediately after all the cars passed, Collins discovered that shots had hit his windshield.

Although Hussey testified he did not remember passing Collins or firing his shotgun because of his consumption of pills and alcohol, we judge Hussey's conduct regardless of his level of intoxication.   See Tex. Penal Code Ann. § 8.04(a) (voluntary intoxication not a defense).   And Hussey did not deny shooting the patrol car.   Hussey speculated that, if he had shot the patrol car, he did so to disable the car and to stop the chase so he could finish his plan to kill himself.

To support his lack-of-intent argument, Hussey relies on evidence that Collins was not in the patrol car when Hussey passed.   Regardless of Collins's physical location, Collins testified he felt his “life was in danger” when Hussey “fired a round.”   He also observed that it did not matter whether Hussey could see him, because “if there is a patrol car sitting there with lights on, [you have to assume] there is a trooper somewhere either in or around that car.”   Although Hussey testified he did not believe he “wanted to threaten or hurt” Collins, he also admitted having no doubt that Collins felt threatened.

Finally, Hussey asserts the requisite intent is absent because he intended only to harm himself.   Yet Hussey's intent to threaten Collins may be inferred from his act of firing his shotgun at or in the direction of Collins's vehicle.   See Hart, 89 S.W.3d at 64.  “[T]he act of pointing a loaded gun at an officer in pursuit is, by itself, threatening conduct which supports conviction for aggravated assault.”  Cantu v. State, 953 S.W.2d 772, 775 (Tex.App.—Corpus Christi 1997, pet. ref'd) (citing Preston v. State, 675 S.W.2d 598, 601 (Tex.App.—Dallas 1984, pet. ref'd)).

Other evidence also shows Hussey's intent to engage in threatening conduct.   At the time of the offense, Hussey had committed aggravated robbery and was in flight.   Before shooting at Collins's vehicle, he had refused to comply with an officer's instructions, pushed an officer, pointed a gun at an officer, backed his Expedition toward an officer, and nearly “sideswiped” an officer's patrol car.   As Hussey approached Collins, Hussey appeared as if he would ram the vehicle.   Middleton also testified that, to hit Collins's windshield, Hussey had to have his shotgun sticking out the window.   Hussey agreed he would have had to “cock” his shotgun at some point before firing.

After reviewing the evidence under the appropriate standard of review, we conclude the jury rationally could have found Hussey had the requisite intent to commit the charged offense.   Thus, the evidence is sufficient to support Hussey's conviction.   See Jackson, 443 U.S. at 319.   We overrule Hussey's issues and affirm the trial court's judgment.

FOOTNOTES

FN1. Hussey pleaded guilty to two counts of aggravated robbery and was sentenced to twenty years' imprisonment on each count.   His sentences run concurrently.   Hussey's two-count conviction was affirmed on appeal.   See Hussey v. State, No. 08–05–00051–CR, 2006 WL 304559, at *1 (Tex.App.—El Paso 2006, no pet.)..  FN1. Hussey pleaded guilty to two counts of aggravated robbery and was sentenced to twenty years' imprisonment on each count.   His sentences run concurrently.   Hussey's two-count conviction was affirmed on appeal.   See Hussey v. State, No. 08–05–00051–CR, 2006 WL 304559, at *1 (Tex.App.—El Paso 2006, no pet.).

MARY MURPHY JUSTICE