BRANDON RUGE BURNETT, Appellant, v. THE STATE OF TEXAS, Appellee.
Appellant Brandon Ruge Burnett appeals from his conviction of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B), (c) (West, Westlaw through 2017 1st C.S.). By three issues, Burnett contends that the evidence was legally insufficient to establish that he intentionally or knowingly committed the offense, the trial court erred in refusing to instruct the jury on the lesser-included offense of misdemeanor assault, and the trial court erred in refusing to instruct the jury on reckless driving. We affirm.
Burnett's former girlfriend, Dekima Johnson, testified that on April 26, 2014, she attended a party at a local nightclub and at some point while she was at the nightclub, Burnett hit her in the face. Johnson stated that she then attempted to leave the nightclub and was outside when Burnett hit her again. According to Johnson, Burnett went back into the nightclub. Johnson said that she asked Suzonne Higgins to get her truck so that they could leave the nightclub. According to Johnson, the women entered the truck, and Higgins began driving away from the nightclub. Johnson testified that while Higgins drove her truck, Johnson saw Burnett's vehicle driving beside the truck's driver's side on the oncoming lane of traffic. Johnson stated that Burnett drove his vehicle onto the passenger side of the truck and blocked the truck from traveling onto a road that Higgins had intended to take. Johnson indicated that Higgins continued driving forward and that she turned the truck by a church. Johnson stated that instead of driving into the church's parking lot, “the truck ended up in a ditch.” When asked by the State, “And did the defendant have anything to do with driving y'all into the ditch,” Johnson replied, “Yes ․ I think his car hit the truck.” According to Johnson, Higgins managed to get the truck out of the ditch and continued driving her truck. Johnson stated that Burnett continued to follow the women in his vehicle and again he struck the truck with his vehicle causing the truck to drive into another ditch. According to Johnson, at this point, Burnett exited his vehicle and Higgins again managed to drive the truck out of the ditch, and she drove away. Johnson testified that then one of the women called 911, but she could not recall who called. Johnson stated that she was scared because Burnett had hit the truck twice with his vehicle, forcing the truck into two ditches, and that was the reason 911 was called.
According to Johnson, as the women were driving along, they saw some police officers at the “old McCoy's” so Higgins drove to that building's parking lot and stopped. Johnson stated that Burnett “had passed [them] and left.” Johnson said that a police vehicle transported Burnett to the McCoy's parking lot, and she spoke to police about the incident. A police officer took photographs of Johnson's injuries that the trial court admitted into evidence.
Higgins testified that Burnett had not “rammed [her] father's truck and run [her] off the road.” Higgins related that although she had made a statement that Burnett had rammed the truck and run the truck off the road, she did so because Johnson told her to write that. Higgins claimed that she had lied in her police statement. Higgins then testified that she did not recall anything that had occurred while she drove the truck and Burnett pursued them because she had been intoxicated. Higgins claimed that all that she could remember was Johnson telling her what to write in her police statement. Higgins admitted that she could not say that what she wrote in her police statement did or did not happen because she could not remember. Higgins recalled that she drove off the road. When the State asked Higgins about the damage that she had claimed was caused by Burnett on the night of the incident, Higgins replied, “I really don't remember how it was damaged. I did run off the road, I remember that. But that doesn't mean that he ran me off the road.” The State asked, “Was he there when you got run off the road,” Higgins replied, “He was trying to stop—I think he was—I don't know if it was him—I can't say if it was him trying to stop us or—I really don't remember, that's what I'm saying.”
John Kelly, a deputy with the Matagorda County Sheriff's Department, testified that on April 26, 2014, he responded to a 911 dispatch call concerning this incident and he met with Johnson and Higgins at the McCoy's parking lot. Deputy Kelly asked Higgins and Johnson to make a police statement, and he testified that the women were separated when each wrote her statement. Deputy Kelly explained that the women “were a little excited. A lot of adrenaline going, but they were a little excited. Scared. But, I mean, they were very cooperative.” When the State asked him if either woman was intoxicated, Deputy Kelly replied, “No. I saw no indicators of intoxication on either.” Deputy Kelly testified that he talked to each woman separately about the incident.
Deputy Kelly observed pictures admitted into evidence depicting the state of Burnett's vehicle. Deputy Kelly described that State's Exhibit 8 showed “white paint transfer off the wheel of the pickup truck that the victim was in. It had smeared down the rear fender there. In addition, it also damaged the wheel.” Deputy Kelly stated that there was damage on Burnett's vehicle on “the passenger side rear wheel and rear quarter panel.” Deputy Kelly stated that another picture showed that “[t]here was a little bit of a dent right there.” The State showed Deputy Kelly pictures of Higgins's truck that were admitted into evidence. The State asked Deputy Kelly to describe on which side of the truck's front tires he observed some damage, and Deputy Kelly replied, “The driver's side.” When asked to describe damage to Burnett's vehicle that was depicted in the pictures shown, Deputy Kelly said, “It's going to be the rear passenger.” The State asked if the damage to the two vehicles was consistent with Burnett's “black vehicle attempting to run the red [truck] off the road?” Deputy Kelly replied, “It would be consistent with a collision of some sort between the two vehicles at that point, yes.”
On cross-examination, Burnett's trial counsel asked if Burnett ran Higgins off the road, and Deputy Kelly said, “He admitted to striking her and colliding with her vehicle.” When asked if he admitted to running her off the road, Deputy Kelly replied, “No.” Later on re-direct, Deputy Kelly reiterated that Burnett told him “[t]hat he had actually struck [Johnson] physically before all this started and he had struck the vehicle [with his vehicle].” When asked by the State on re-direct examination, whether “[t]he using of a vehicle to force another vehicle off the road into a ditch, is that capable of causing death or serious bodily injury,” Deputy Kelly replied, “It is.” The State asked Deputy Kelly if all the parties involved told him on the night of the incident that Burnett had used his vehicle to strike the truck in an effort to run the truck off the road, Deputy Kelly responded, “Yes,” and he agreed with the State that “[e]veryone was consistent that night” in what they told him. On cross-examination, Deputy Kelly clarified that although Burnett admitted to striking the truck with his vehicle, he did not state he did so in an effort to run the truck off the road. Deputy Kelly added that everyone including Burnett had told him on the night of the incident that Burnett had struck Higgins's truck with his vehicle on at least two occasions.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, Burnett contends that the evidence is insufficient to support a finding that he acted intentionally or knowingly.
A. Standard of Review and Applicable Law
In a sufficiency review, we examine the evidence in the light most favorable to the prosecution to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 898—99 (Tex. Crim. App. 2010) (plurality opinion). The fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the judgment. Id.
In our sufficiency review, “direct evidence of the elements of the offense is not required.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence, and juries are permitted to make reasonable inferences from the evidence presented at trial and in establishing the defendant's guilt. Id. “Circumstantial evidence alone can be sufficient to establish guilt.” Id. “[T]he lack of direct evidence is not dispositive of the issue of a defendant's guilt.” Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). “Each 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.” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014).
We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge as authorized by the indictment. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A person commits aggravated assault, as charged in this case, if he intentionally or knowingly threatens another with imminent bodily injury while using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2).
B. Intentional or Knowing Conduct
Burnett only challenges the legal sufficiency of the mens rea element of aggravated assault with a deadly weapon. Specifically, Burnett states that although he “undoubtedly was trying to prevent Johnson from going home until they resolved their disagreement,” the jury could not have found that he acted intentionally or knowingly because the evidence established that he accidently rammed his vehicle into the truck.
“A person acts intentionally, or with intent, 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 cause the result.” Id. § 6.03(a) (West, Westlaw through 2017 1st C.S.). “A person acts knowingly, or with knowledge, 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); see Guzman v. State, 988 S.W.2d 884, 887 (Tex. App.—Corpus Christi 1999, no pet.) (“[W]e hold that assaultive behavior consummated by threat is properly charged by a ‘nature of conduct’ instruction.”). Threats may be committed by speech or conduct. McGowan v. State, 664 S.W.2d 355 (Tex. Crim. App. 1984).
The evidence showed that Burnett became enraged with Johnson while at a party at a nightclub, he argued with her, he hit her face twice, and although her car was in the nightclub's parking lot, Johnson asked her friend to drive her away from the nightclub. Evidence was presented that Burnett pursued the truck that Johnson's friend, Higgins, drove. Burnett drove his vehicle on the wrong side of the road while pursuing the truck; Burnett used his vehicle to block the truck from traveling onto the road Higgins intended to take; and Burnett according to Johnson rammed his vehicle into the truck causing the truck to drive into a ditch on two separate occasions. In addition, Johnson stated that she was scared when Burnett rammed his vehicle into the truck, and Deputy Kelly testified that Burnett's use of his vehicle to ram into the truck, causing it to drive into a ditch, was an act capable of causing death or serious bodily injury.
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that by chasing the truck and then ramming it with his vehicle, it was Burnett's conscious objective or desire to cause Johnson to be and feel threatened with imminent bodily injury. See Jefferson v. State, 346 S.W.3d 254, 256—57 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (explaining that a person commits assault by acting with the intent to cause the victim to feel reasonable apprehension of imminent bodily injury, even if the person does not intend to harm the victim); cf. George v. State, 841 S.W.2d 544, 547 (Tex. App.—Houston [1st Dist.] 1992), aff'd, 890 S.W.2d 73 (Tex. Crim. App. 1994) (“All that is required is that he intended to arouse fear of imminent serious bodily injury.”). In addition, viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that by chasing the truck and then ramming it with his vehicle, Burnett was aware that his conduct would reasonably cause Johnson to be and feel threatened with imminent bodily injury. See Martinez v. State, 754 S.W.2d 831, 833 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (concluding that evidence supported a finding that the defendant knowingly caused the victim to be or feel threatened by chasing the victim with a knife and swinging the knife at another person in the victim's presence). Accordingly, the evidence is sufficient to allow a rational trier of fact to find, beyond a reasonable doubt, that Burnett's conduct was committed either intentionally or knowingly. We overrule Burnett's first issue.
III. CHARGE ERROR
By his second and third issues, Burnett contends that the trial court erred by failing to include the lesser-included offenses of assault and reckless driving in the jury charge.
A. Applicable Law
We apply a two-part test to decide whether the trial court must give a charge to the jury on a lesser-included offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). First, we must determine whether the lesser-included offense is included within the proof necessary to establish the charged offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Second, we must evaluate “the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense.” Mathis, 67 S.W.3d at 925. “In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense.” Id.
Here, the parties agree that assault is a lesser-included offense of aggravated assault; thus meeting the first part of the test. See Rousseau, 855 S.W.2d at 672; see also Settles v. State, No. 05-14-00382-CR, 2015 WL 3522838, at *5 (Tex. App.—Dallas June 3, 2015, pet. ref'd) (mem. op., not designated for publication) (“[T]he elements of simple assault by threat are contained within the proof necessary to establish aggravated assault by threat.”). Burnett argues that there is evidence that he accidently hit the truck with his vehicle; thus, the jury would have been able to convict him of simple assault. The State argues that there is no evidence for the jury to have found Burnett guilty only of assault. We agree with the State.
For a jury to have concluded that Burnett was guilty of only assault, it needed to have concluded that by ramming his vehicle into the truck and causing the truck to drive off the road into a ditch, Burnett threatened Johnson with imminent bodily injury, but he did so without using or exhibiting “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2); see also Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014) (“ ‘Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense,’ and ․ a ‘motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury.’ ”). The evidence regarding whether Burnett's use of his vehicle was capable of causing death or serious bodily injury was admitted through Deputy Kelly's testimony, who stated that Burnett's use of his vehicle could have caused death or serious bodily injury. Moreover, the jury could have reasonably inferred that Johnson was placed in real danger of death or bodily injury when Burnett used his vehicle to ram the truck off the road. Burnett does not cite any evidence, and we find none, that the manner in which Burnett used his vehicle could not have caused death or serious bodily injury. See Drichas v. State, 175 S.W.3d 795, 797–98 (Tex. Crim. App. 2005) (determining that there was legally sufficient evidence of a deadly-weapon finding when the appellant drove his truck the wrong way on a highway during a high-speed chase, failed to yield to oncoming vehicles, committed numerous traffic offenses, and abandoned his truck while it was still in motion).
“ ‘[I]t is not enough that the jury may [have] disbelieved crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted,” which is only met when “some evidence refutes or negates [the evidence] establishing the greater offense or if the evidence presented is subject to different interpretations.” Sweed v. State, 351 S.W.3d 63, 67–68 (Tex. Crim. App. 2011). In this case there is no evidence refuting or negating evidence that Burnett's use of his vehicle could cause death or serious bodily injury. See id. Therefore, no rational jury could have reached such a result. Moreover, if the jury found that Burnett accidently hit the truck with his vehicle, as he argues the evidence showed, the jury could not have convicted Burnett of simple assault because his act would not have been threatening, which requires that the person have an intent to inflict harm or loss to another. See Olivas v. State, 203 S.W.3d 341, 345–46 (Tex. Crim. App. 2006) (noting that “Black's Law Dictionary defines ‘threat’ as: ‘A communicated intent to inflict harm or loss on another or on another's property”) (citing BLACK'S LAW DICTIONARY 1203 (7th ed. 2000)). We conclude that the trial court did not err in failing to charge the jury on simple assault. See Sweed, 351 S.W.3d at 67–68. We overrule Burnett's second issue.
C. Reckless Driving
Next, Burnett contends that the trial court erred by not including in the charge an instruction on reckless driving because it is a lesser-included offense of aggravated assault. Burnett, however, acknowledges that the trial court did not err in not including reckless driving in the jury charge as it is not a lesser-included offense in this situation under current law as determined in by the Texas Court of Criminal Appeals in Rice v. State, 333 S.W.3d 140, 147—48 (Tex. Crim. App. 2011). Burnett states that he makes the argument in order to preserve it for review by the Texas Court of Criminal Appeals. Because Burnett acknowledges that the trial court did not commit error in this case by failing to include an instruction on reckless driving in the charge, we overrule his third issue. See id.
We affirm the trial court's judgment.
ROGELIO VALDEZ Chief Justice