Rodney Joe Garrett, Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

A jury convicted Rodney Garrett of the offense of aggravated assault of a public servant with a deadly weapon.  Based upon the jury's recommendation, the trial court sentenced Garrett to thirty-four years' imprisonment.  On appeal, Garrett contends the trial court erred by including a jury instruction on the permissive presumption contained in Texas Penal Code § 22.02(c) and excluding testimony during the punishment phase of trial.  Garrett additionally contends the evidence is insufficient to sustain his conviction.  The judgment of the trial court is affirmed.

Background

On February 11, 2014, Derek Branning was driving north on Interstate 35 when he recognized a white semi-truck that had been stolen from his workplace several weeks earlier.  Branning called 9–1–1 and continued to follow the truck until law enforcement officers arrived.

Bexar County Sheriff's Office (“BCSO”) Deputy Derrick Crawford had been working patrol in his marked police vehicle when he was dispatched for the vehicle theft in progress.  Crawford encountered the truck and Branning on Interstate Loop 410.  Crawford positioned his vehicle behind the truck and activated his overhead red-and-blue lights.  The truck did not stop.  Rather, Garrett drove the truck through a ditch and across a grassy median onto the access road.  Garrett then drove through an intersection, disregarded a stop sign, and drove through the grassy median back onto Loop 410.  Crawford maintained pursuit.

Eventually, the truck slowed as though to pull over.  Rather than stopping, Garrett stepped partially out of the truck's cab and pointed a shotgun at Crawford.  Crawford braked and saw a muzzle flash as he leaned over to take cover.  Crawford heard shotgun pellets hit his vehicle.  When Crawford sat up, he saw Garrett re-enter the truck's cab and drive away.  Crawford continued pursuit.

The pursuit continued for approximately twenty miles, reaching speeds of eighty-five to ninety miles per hour.  Garrett travelled on both the highway and access roads, crossed over concrete curbs and through ditches and medians, ignored stop signs, and drove through red lights.  BCSO Deputy John Aguillon joined the pursuit, as did several San Antonio Police Department (“SAPD”) traffic and patrol units.  Garrett shot at Crawford three more times.  Each time, Crawford ducked behind his computer terminal and heard shotgun pellets hit his vehicle.  In an effort to end the chase, BCSO Deputy Manuel Herrera positioned his vehicle at an intersection to block cross-traffic and used this vantage point to fire upon the truck.  Garrett continued undeterred, and Herrera joined the pursuit.

Finally, Garrett crossed another median and drove the truck into a shopping mall parking lot.  As the truck slowed, Garrett jumped from the cab, dropped the shotgun, and ran into a department store.  The deputies pursued Garrett on foot into the department store, where they found Garrett attempting to conceal himself behind a display rack.

The subsequent indictment charged Garrett with one count each of the offenses of alleged attempted capital murder and aggravated assault of a public servant with a deadly weapon.  The State proceeded to trial on only the allegation of aggravated assault.  A jury found Garrett guilty, and based on the jury's recommendation, the trial court sentenced Garrett to thirty-four years' imprisonment.

Garrett perfected this appeal.

Analysis

Sufficiency of the Evidence

Garrett complains the evidence is insufficient to support his conviction for aggravated assault of a public servant because the evidence does not support the finding that Garrett intentionally or knowingly threatened Crawford with imminent bodily injury.  Garrett argues his statements to Deputies Garza and Baeza show he intended only to scare, not harm, the deputies when he shot at them.

Standard of Review

When examining the sufficiency of the evidence supporting a conviction, an appellate court considers all the evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);  Merritt v. State, 368 S.W.3d 516, 525 (Tex.Crim.App.2012).

As the factfinder, the jury is permitted to draw any reasonable inferences from the evidence so long as the inference is supported by the record.  Ramsey v. State, 473 S.W.3d 805, 809 (Tex.Crim.App.2015).  The element of intent can be inferred from circumstantial evidence such as a person's acts, words, and conduct.  Laster v. State, 275 S.W.3d 512, 524 (Tex.Crim.App.2009).  “As long as the verdict is supported by a reasonable inference, it is within the province of the factfinder to choose which inference is most reasonable.”  Id. at 523.

Applicable Law

A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury.  Tex. Penal Code Ann. § 22.01(a)(2) (West 2011).  A person commits aggravated assault if the person commits the offense of assault as described in section 22.01 of the Penal Code and uses or exhibits a deadly weapon during the commission of the assault.  Id. § 22.02(a)(2) (West 2011).  Aggravated assault is generally a second degree felony, but is enhanced to a first degree felony if the assault is committed against someone the defendant knows is a public servant while the public servant is lawfully discharging an official duty.  Id. § 22.02(b)(2)(B) (West 2011).

“The gist of the offense of assault as set out in [the Penal Code] is that one acts with intent to cause a reasonable apprehension of imminent bodily injury (though not necessarily with intent to inflict such harm).”  Garrett v. State, 619 S.W.3d 172, 174 (Tex.Crim.App.1981).  “ ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”  Tex. Penal Code Ann. § 1.07(a)(8) (West Supp.2015).  “Imminent” is not defined in the Penal Code, but the Court of Criminal Appeals has defined the term to mean “ready to take place, near at hand, hanging threateningly over one's head, menacingly near.”  Garcia v. State, 367 S.W.3d 683, 689 (Tex. Crim.App.2012) (internal citations omitted).  “Threatens” is also not defined in the Penal Code, but the Court of Criminal Appeals has recognized the plain language of section 22.01(a)(2) and past jurisprudence indicates threat requires proof that by his conduct, a defendant intended to cause an apprehension of imminent bodily injury.  See Teeter v. State, 2010 WL 3702360, at *5 (Tex.Crim.App. Sept. 22, 2010) (not designated for publication).

The Penal Code instructs that “[a] person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.”  Tex. Penal Code Ann. § 6.03(a) (West 2011).  “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or the circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.”  Id. § 6.03(b) (West 2011).  “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause a result.”  Id.

Application

The relevant evidence presented at trial to support the conviction consisted of testimony from Deputies Crawford and Aguillon and SAPD Officer Mark Gallardo, who were involved in the pursuit;  Deputy Bobby Garza, who transported Garrett to the Magistrate's office;  and Sergeant Jennifer Baeza, the investigator assigned to the case.

Deputy Crawford testified he was the first deputy in pursuit of the stolen truck.  Crawford described how the truck slowed to a near-stop and Garrett partially stepped from the truck with a shotgun pointed in his direction.  Crawford testified he immediately braked more forcefully and took cover because he felt threatened and believed he was going to be shot.  Crawford testified he saw a muzzle flash as he took cover and then heard pellets striking his vehicle and windshield.

Crawford described three more occasions on which Garrett pointed and fired the shotgun at him.  Crawford testified that after the first shooting, Garrett broke out the back window of the truck and shot through the back window while driving.  Each time, Crawford braked and took cover, fearful he would be shot.  Crawford additionally testified he heard pellets hit his vehicle each time Garrett shot at him.

Deputy Aguillon was the second deputy to join the pursuit.  According to Aguillon, he was approximately five car lengths behind Crawford each time the shots were fired.  Aguillon testified Crawford reported “shots fired” four different times during the pursuit.

Officer Gallardo, also a part of the pursuit, testified he saw Garrett aim the shotgun out the back window of the truck while driving.  Gallardo testified he was unable to discern whether the shotgun was fired because of his position behind the BCSO vehicles.

Deputy Bobby Garza testified Garrett was already detained in the back of Aguillon's vehicle when Garza arrived at the scene.  Garza stood guard until he was directed to transfer Garrett to his own vehicle and transport Garrett to the Magistrate's office for the initial booking.  Garza testified that during the transport, Garrett spontaneously apologized for the events.  Garza recounted, “He apologized.  He said he was sorry for what he did, for shooting at deputies.  And the only reason he did that was so they could get scared, you know, and stop the chase.  He thought that would scare them.”  On cross-examination, Garza admitted his vehicle was not equipped with a recording device.  Garza acknowledged his testimony was not an exact quotation from Garrett, but asserted it was an accurate recollection of what Garrett said.

Sergeant Jennifer Baeza testified she interviewed Garrett after he was taken into custody and transported to the Magistrate's office.  During Baeza's testimony, the State introduced a redacted version of Garrett's videotaped interview.  In the interview, Garrett told Baeza he did not want to be pulled over but he could not lose the deputy pursuing him.  Garrett stated when he was not able to “shake” the deputy, he “got the shotgun.”  According to Garrett, he thought if he used the shotgun, the deputy would get scared so the deputy would discontinue his pursuit.  Garrett described leaning out the side of the truck and aiming at the pursuing deputy.  Garrett told Baeza his intention was not to shoot directly at the deputy or kill him, but to scare him by shooting above his head.  Garrett stated he learned this technique from his grandfather, who taught him to scare off coyotes by shooting above their heads.

Garrett also told Baeza he realized shooting above the deputy did not scare him off, so he decided to disable the pursuing vehicle by shooting out its radiator.  Garrett broke out the truck's back window so he could have a better aim towards the patrol vehicle's radiator and shot at the pursuing vehicle again.  According to Garrett, when this did not work after several tries, his motivation became just getting away.

Based upon this testimony, there is no dispute Garrett pointed a shotgun at Crawford and fired it at him at least four times.  In his interview, Garrett stated he first intended to scare Crawford into abandoning the pursuit.  Garrett then admitted to shooting with the intention of disabling Crawford's vehicle by damaging its radiator.  Crawford testified he felt threatened and believed he could be shot each time Garrett pointed and fired the shotgun at him.  Crawford also testified he heard shotgun pellets hit both the body and windshield of his vehicle.

When the evidence is viewed in the light most favorable to the verdict, a rational jury could have found Garrett acted with the “intent to cause a reasonable apprehension of imminent bodily injury” though not necessarily with the intent to actually inflict such harm.  See Garrett, 619 S.W.3d at 174.  A rational jury could also have determined Garrett used or exhibited a deadly weapon during the commission of the assault.  Further, a rational jury could have found Garrett committed the assault against someone he knew was a public servant lawfully discharging his official duty.  Consequently, this court concludes the evidence in this case is sufficient to sustain the jury's finding that Garrett committed the offense of aggravated assault of a public servant with a deadly weapon.

Garrett's first issue on appeal is overruled.

Permissive Presumption Jury Instruction

In his second issue, Garrett contends the trial court erred by instructing the jury on the permissive presumption contained in Texas Penal Code section 22.02(c), which allowed the jury to presume Garrett knew Crawford was a peace officer if it found Crawford was wearing a distinctive uniform or badge.  Garrett specifically complains the State presented no evidence Crawford was wearing a distinctive uniform or badge.

Standard of Review

An appellate court's first duty in analyzing a jury charge issue is to determine whether error exists.  Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005).  Upon a finding of error in the jury charge, there are separate standards of review depending on whether the defendant timely objected to the jury instruction.  Marshall v. State, 479 S.W.3d 840, 843 (Tex.Crim.App.2015);  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).  If the defendant timely objected to the jury instructions, then reversal is required if there was some harm to the defendant.  Marshall, 479 S.W.3d at 843.  If the defendant did not timely object to the jury instructions, then reversal is required only if the error was so egregious and created such harm that the defendant did not have a fair and impartial trial.  Id.

Applicable Law

To establish the more serious first degree felony offense, the State was required to prove Garrett knew Crawford was a public servant as an element of the offense.  See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).  The jury charge in this case mirrors the language used in the Texas Penal Code setting out the specific presumption of a defendant's knowledge that a person was a public servant if the person was wearing a “distinctive uniform or badge,” as well as the general instruction for permissive presumptions.  See Tex. Penal Code Ann. §§ 22.02(c), 2.05(a)(1) (West 2011).  The permissive presumption allows, but does not require the factfinder to infer the elemental fact from the predicate evidentiary fact or facts.  Willis v. State, 790 S.W.2d 307, 310 (1990).  Permissive presumptions do not lessen the State's burden of proof and place no burden on the defendant to disprove the fact.

The Penal Code directs,

[I]f there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.

Tex. Penal Code Ann. § 2.05(a)(1) (West 2011).

Application

During the charge conference, defense counsel objected to the inclusion of the “presumption page.”  Counsel argued “there is no evidence from Crawford regarding what type of uniform or badge, if any, he was wearing;  and, therefore, this presumption that goes to his clothing, it's not proper and should not be included in the charge.”  The State responded evidence was presented through other law enforcement officers and videos regarding the uniform and badge Crawford wore the day of the offense.  The trial court agreed with the State and overruled defense counsel's objection.

The State introduced two videos on which Crawford can be seen in uniform.  In the dashboard-camera video retrieved from Gallardo's vehicle, Crawford is seen exiting his own vehicle while wearing a uniform with a BCSO insignia patch.  In the surveillance video retrieved from the department store in which Garrett was apprehended, Crawford can be seen wearing a uniform as he followed Garrett into the department store.  Crawford can also be seen, in uniform, carrying Garrett out of the department store in the same video.

Garrett does not point this court to any authority requiring the evidence giving rise to the presumption must be in the form of live testimony.  Consequently, this court concludes the State presented sufficient evidence of the facts that give rise to the section 22.02(c) presumption.  Thus, the inclusion of the permissive presumption instruction in the jury charge was not erroneous.

Garrett's second issue is overruled.

Exclusion of Punishment Testimony

In his final issue on appeal, Garrett complains the trial court abused its discretion by excluding testimony from his mother, Laurie Lee, during the punishment phase.  Garrett contends Ms. Lee's thoughts and feelings regarding how her son should be punished were relevant to the jury's assessment of his punishment.

During Ms. Lee's testimony, defense counsel attempted to ask the following questions:  (1) “When you think about the jurors' decision and, you know, what they have to do, what goes through your mind?”;  and (2) “Having heard what you've heard this week, how does it make you feel?”  When each question was asked, the State objected on the basis of relevancy.  The trial court sustained the State's objections.

Standard of Review

Whether evidence is relevant to any issue lies within the sound discretion of the trial court.  Williams v. State, 535 S.W.2d 637, 640–41 (Tex.Crim.App.1976).  An appellate court reviews a trial court's determination of the admissibility of evidence under an abuse of discretion standard.  Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011).  A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.”  Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008).  A trial court does not abuse its discretion if some evidence supports its decision.  Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App.2002).  This court upholds a trial court's evidentiary ruling if it was correct on any theory of law applicable to the case.  De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App.2009).

Applicable Law

Regardless of a defendant's plea or whether punishment is assessed by the judge or jury, evidence may, as permitted by the Rules of Evidence, be offered by the State and the defendant as to any matter the trial court deems relevant to sentencing.  Tex.Code Crim. Proc. Ann. art. 37.07 § 3 (West Supp.2015).  The trial court is thus required to afford a defendant an opportunity to present relevant evidence regarding punishment after the defendant has been found guilty.  Id.;  see Borders v. State, 846 S.W.2d 834, 835–36 (Tex.Crim.App.1992) (per curiam).

Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Tex.R. Evid. 401.  Relevant evidence is admissible unless otherwise barred by law.  Id. 402.  Irrelevant evidence is inadmissible.  Id.

Application

Here, the questions the trial court prohibited Ms. Lee from answering referenced Ms. Lee's feelings about the trial process and the evidence presented during the trial.  Ms. Lee's answers to these questions did not affect any fact of consequence to the determination of punishment.  Ms. Lee's feelings regarding the proceedings or the guilty verdict were immaterial to the jury's determination of Garrett's punishment.  The trial court did not abuse its discretion by sustaining the State's objections and excluding this portion of Ms. Lee's testimony.

Garrett's third issue is overruled.

04–15–00289–CR

Conclusion

For the above reasons, Garrett's issues on appeal are overruled.  The judgment of the trial court is affirmed.

Opinion by: Jason Pulliam, Justice,