Opinion
No. 07-19-00423-CR
07-24-2020
SHAWN ANDREW BENSON, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 46th District Court of Wilbarger County, Texas
Trial Court No. 12,393, Honorable Dan Mike Bird, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Shawn Andrew Benson appeals his conviction for aggravated assault by threat with a deadly weapon. The conviction arose from his attempt to flee in his car after being stopped by law enforcement authorities. He was leaving a parking lot when officers stopped behind and in front of his vehicle and walked toward it. One officer avoided physical contact with appellant's vehicle by taking evasive measures. Four issues pend for our review. Two involve the sufficiency of the evidence underlying the jury's verdict while the other two concern the omission from the charge of lesser-included offenses. We reverse.
Issues One and Two
Appellant contends through his first two issues that there was no evidence, or it was legally insufficient to establish he "'intentionally or knowingly' drove his motor vehicle 'at or in the direction of . . .' the officer, as alleged in Count I of the Indictment." In other words, he questions whether the State proved he had the requisite mens rea to commit the crime for which he was charged. We overrule the issues.
We apply the standard of review described in Braughton v. State, 569 S.W.3d 592 (Tex. Crim. App. 2018). It requires us to consider all the evidence in the light most favorable to the verdict and determine whether, based on it and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id. at 607-08. Furthermore, that evidence is measured against the elements of the offense as defined by the hypothetically correct jury charge. Id. at 608.
Per its indictment, the State alleged that appellant:
did then and there intentionally and knowingly threaten Laura Nino . . . with imminent by [sic] bodily injury by driving a motor vehicle at or in the direction of [her], and did then and there use or exhibit a deadly weapon, to-wit: a motor vehicle, during the commission of the assault, and the defendant did then and there know that the complainant was then and there a public servant, to-wit: an officer with the Vernon Police Department, Vernon, Texas, and that the complainant was then and there lawfully discharging an official duty, to-wit: attempting to arrest Shawn Andrew Benson.A person commits aggravated assault if he assaults someone and uses or exhibits a deadly weapon while doing so. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019). In turn and among other ways, one commits assault if he intentionally or knowingly threatens another with imminent bodily injury. Id. § 22.01(a)(2). Assault by threat is a nature of conduct, as opposed to a result of conduct, offense. Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref'd); accord Ory v. State, No. 05-13-00172-CR, 2014 Tex. App. LEXIS 7556, at *5 (Tex. App.—Dallas July 14, 2014, no pet) (mem. op., not designated for publication) (stating that aggravated assault on a public servant is a conduct offense requiring no result). Proving the requisite mens rea of intentionally or knowingly requires the State to show either 1) it was the accused's conscious objective or desire to engage in the conduct or 2) he was aware of the nature of, or circumstances surrounding, his conduct. Ory, 2014 Tex. App. LEXIS, 7556 at *5-6. With this in mind, we peruse the record before us to address appellant's issues.
The jury had before it evidence of 1) appellant being stopped; 2) the police Chief approaching appellant's driver's side door with weapon drawn, asking appellant who he was, making eye contact with appellant, recognizing appellant, and asking appellant to step out; 3) appellant turning his head away from the Chief and looking in a forwardly direction; 4) appellant initially turning his steering wheel to the left; 5) Officer Nino appearing in front of appellant's car; 5) Nino's patrol car being right of center-front of appellant's car; 6) Nino being in the path of appellant's vehicle; 7) appellant staring towards the front of his vehicle; 8) Nino being an arm's length from and "dead center" in front of appellant's vehicle when she made eye contact with him; 9) appellant accelerating his vehicle "fast"; 10) Nino pushing off the hood of his vehicle as it knocked her towards the curb by the sidewalk; 11) Nino fearing for her life; and 12) Nino believing she would have been run over had she not pushed off the vehicle.
It has long been true that intent or knowledge (i.e., mens rea) may be inferred from any evidence tending to prove its existence. Alexander v. State, No. 01-18-01041-CR, 2019 Tex. App. LEXIS 9331, at *5 (Tex. App.—Houston [1st. Dist.] Oct. 24, 2019, no pet.) (mem. op., not designated for publication); Doyle v. State, No. 07-14-00340-CR, 2015 Tex. App. LEXIS 10690, at *6 (Tex. App.—Amarillo Oct. 15, 2015, no pet.) (mem. op., not designated for publication). That evidence includes the acts, words, conduct of the accused, and method of committing the crime. Doyle, 2015 Tex. App. LEXIS 10690, at *6. The evidence itemized above is enough to enable a rational fact-finder to conclude, beyond reasonable doubt, that appellant had the conscious objective or desire to threaten Nino or was aware of the nature of, or circumstances surrounding, his threat to Nino as he accelerated toward her. In other words, the evidence was legally sufficient to show he had the requisite intent to commit aggravated assault by threat.
Issue Four
Appellant next complains of the trial court's refusal to afford him the lesser-included offense of deadly conduct. We sustain the issue.
One engages in deadly conduct when he recklessly engages in conduct that places another in imminent danger of serious bodily injury. TEX. PENAL CODE ANN. § 22.05 (West 2019). Furthermore, deadly conduct is a lesser-included offense of aggravated assault by threat when a deadly weapon is used or exhibited. Indeed, our Court of Criminal Appeals has so held. See Safian v. State, 543 S.W.3d 216, 224 (Tex. Crim. App. 2018) (holding that "deadly conduct, as a matter of law, is a lesser-included offense of the charged offense of aggravated assault by threat where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon"). Those are the circumstances here. The State, via its indictment, accused appellant of engaging in aggravated assault by threat while using or exhibiting a deadly weapon, the latter being a motor vehicle.
That deadly conduct falls within the category of a lesser-included offense, though, does not ipso facto mandate its inclusion in a jury instruction. There are two prongs to the lesser-included offense analysis, and each must be satisfied. See id. at 219-20 (specifying the two prongs). The wording of the indictment coupled with the application of Safian merely satisfies the first prong. We cannot ignore the second. See id. at 224 (reversing the judgment of the intermediate appellate court and remanding the matter to it "for it to conduct the second step of the two-step lesser-included offense analysis").
The second prong requires us to determine whether there is some evidence of record that "would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense." Id. at 220. Meeting that threshold demands more than speculation. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). Rather, there must exist affirmative evidence proving the lesser offense. Id. So too must the evidence either rebut or negate an element of the greater offense, id., or be subject to different interpretations, one of which rebuts or negates an element of the greater offense. Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016); Williamson v. State, No. 03-17-00787-CR, 2019 Tex. App. LEXIS 8768, at *5-6 (Tex. App.—Austin Oct. 2, 2019, pet ref'd) (mem. op., not designated for publication). And, though the necessary evidence may not be plucked from the record and examined in a vacuum, Bullock, 509 S.W.3d at 925, it may come from any source, be meager, or be weak, impeached or contradicted. Cavazos, 382 S.W.3d at 383.
We begin our consideration of the second prong with a video taken from a camera mounted on the Chief's handgun. The video is about 15 seconds long. The first nine seconds show the ground and the Chief's shadow as he walked towards appellant's vehicle. Not until after the Chief asks appellant to identify himself and his voice grows in intensity do we see appellant in his car. That occurs about 10 seconds into the video. Seconds 11 and 12 depict appellant commencing his departure from the parking lot in which he was stopped.
A still frame within second 11 also shows Officer Nino. She is standing in front of the vehicle and leaning forward with her right arm somewhat outstretched as if preparing to push away from the approaching vehicle. Appellant's head and eyes also face in a forward direction. Whether he was staring at Nino cannot be readily discerned, though he may have been. The Chief described Nino as being within 5 feet of the car and appellant "gunned" it. He also testified to appellant having "turned his wheels." Indeed, still frames within seconds 10 and 11 show the front wheels of appellant's car pointing to the left and the steering wheel being held as if it were turning to the left. To the left of appellant, Nino, and her patrol unit, lay the open street and a potential escape route.
Other frames within those few seconds also depict the manner in which appellant held his head and eyes. From them, one could infer that he was looking not at Nino but away from her and toward the open street. One could also infer that while Nino remained near the turning vehicle's front bumper, her position there arose not because appellant aimed at her as he tried to leave but from the happenstance of her approaching his car after having stopped in front of it.
It is clear from all the evidence of record that appellant sought to leave in an erratic manner. One officer would later describe him, as he escaped, as driving "recklessly." It is also clear that 1) officers located their respective vehicles in ways impeding his departure, 2) officers approached within feet of his car, 3) the events transpired within mere seconds, 4) appellant quickly maneuvered from the parking lot and nearby patrol cars while police officers stood by or in his path, and 5) he did so at the risk of severely injuring those around him while making his escape. What is not clear is appellant's thought processes and mens rea as he engaged in the rather instantaneous conduct. As the State observed, one may develop a particular mens rea in seconds. It would not be unreasonable for a fact-finder to infer that he saw Nino in front of his car and drove as he did to force her to avoid injury and move away. Nor would it be unreasonable for a fact-finder to interpret the same circumstances as appellant having an overwhelming desire to escape and effectuating that desire while ignoring the safety of those impeding his exit. And, most importantly, some evidence appears of record from which one could reasonably say he attempted to turn away from the impediments to his escape while accelerating. The latter is of import because it tends to distinguish the circumstances before us from those in an opinion upon which the State highly relies. That opinion was issued by the Fort Worth Court of Appeals after remand in Safian. See Safian v. State, No. 02-15-00153-CR, 2018 Tex. App. LEXIS 4366 (Tex. App.-Fort Worth June 14, 2018, pet ref'd) (mem. op., not designated for publication).
The Fort Worth Court described Safian's conduct as "driving towards Officer Pearce." Id. at *8. To support its conclusion that in so driving at the officer he did it intentionally or knowingly, as opposed to recklessly, it turned to the evidence earlier relied upon in holding that his conviction had the support of legally sufficient evidence. Id. It consisted of:
(1) Officer Trujillo's testimony that upon [Safian's] seeing Officer Pearce, [Safian] "sped towards [him]" at a high enough rate of speed to spin his tires and kick up dust from the rear of the truck; (2) Officer Trujillo's testimony that [Safian's]
truck drove close enough to Officer Pearce that he thought it hit Officer Pearce; (3) Officer Pearce's testimony that after he and [Safian] made eye contact and he told [Safian] to not move, [Safian] "yanked . . . down" the gearshift, "hit the gas[,] and accelerated towards [Officer Pearce]"; (4) Officer Pearce's testimony that he had to throw himself into his patrol car to avoid getting hit and that the truck would have struck him had he not done so; (5) Officer Pearce's testimony that [Safian's] truck came within a foot of striking his patrol car's door; and (6) Officer Pearce's testimony that he feared for his safety.Id. at *8-9. Many of those very circumstances appeared in the record at bar. Yet, we also have evidence of appellant turning his gaze, steering wheel, and car wheels away from Nino and her squad car to and toward the open street. That evidence may be meager and weak but being so does not place it beyond consideration under the applicable standard of analysis. Speeding toward the officer, as in Safian, could be interpreted as evidence of an intent to assault. We do not quarrel with that proposition. Similarly, though, one's looking toward the open street, turning in that direction, and speeding off while almost hitting others in close proximity could reasonably be interpreted as reckless, that is, action depicting a conscious disregard of a substantial and unjustifiable risk that his conduct may injure someone as he tried to escape. See TEX. PENAL CODE ANN. § 6.03(c) (West 2011) (stating that 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 and 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); see also Campbell v. State, 551 S.W.3d 371, 377 (Tex. App.— Houston [14th Dist.] 2018, no pet.) (holding that erratic driving which included a high rate of speed and almost striking the complainant was sufficient evidence to support a conviction for recklessly engaging in deadly conduct).
We add one other circumstance making our reliance on the 2018 intermediate appellate court opinion in Safian rather impermissible. As alluded to earlier, that court focused on the evidence supporting the accused's conviction to determine that Safian's conduct was not reckless but rather intentional or knowing. In other words, it applied the standard of review used in a legal sufficiency analysis to assess whether the second prong of the lesser-included offense analysis was satisfied. The analysis of the two differ, however. The former looks at what the fact-finder decided and obligates us to determine if some evidence supports the decision by viewing that evidence in a light favoring conviction. See Braughton, 569 S.W.3d at 607-08 (stating that we consider all the evidence in the light most favorable to the verdict and determine whether, based on it and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt). However, the lesser-included offense analysis focuses on what the jury could decide based on all the evidence of record, not just that favoring a conviction on the greater offense. While jurors under the former standard are free to reject weak, meager, or contradicted evidence, we cannot when assessing if a lesser-included offense instruction was appropriate. While jurors under the former are free to interpret evidence in one way despite its susceptibility to being construed in another, we cannot choose one interpretation over another in deciding if a lesser-included offense was improperly denied. Simply put, the Safian court applied the wrong standard of review when concluding that the second prong of the analysis was not met.
In short, both prongs of the lesser-included offense analysis were satisfied here. Appellant was entitled to have the offense of engaging in deadly conduct included in the jury charge. Instead, the jury was left with the sole option of convicting or acquitting appellant for the greater offense of aggravated assault. When faced with that sole and deficient option, harm is essentially automatic; this is so because the jury was denied the chance to convict the accused on a lesser charge. Garza v. State, No. 04-18-00505-CR, 2019 Tex. App. LEXIS 6043, at *5-6 (Tex. App.—San Antonio July 17, 2019, pet. ref'd) (mem. op., not designated for publication); Cardona v. State, No. 02-15-00036-CR, 2015 Tex. App. LEXIS 12800, at *15-16 (Tex. App.—Fort Worth Dec. 17, 2015, pet. ref'd) (mem. op., not designated for publication); O'Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Here, appellant and the jury were denied that opportunity. That evinces harm sufficient to warrant the reversal of his conviction.
Issue Three
In the final issue we consider, appellant's issue three, he contends that the trial court erred in refusing him the lesser-included offense of resisting arrest. We overrule the issue.
The simple answer to this issue lies with the application of the first prong of the lesser-included offense test. Again, there are two prongs, and under the first, we assess whether the lesser offense is established by proof of the same or less than all the facts required to prove the charged offense. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). And, the framework within which we work in so assessing is the indictment. We compare the elements of the offense as alleged in the indictment with the elements of the requested lesser offense. Id. The latter do not have to be pleaded in the indictment; they need only be subject to reasonable deduction from the allegations and facts in that instrument. Id.; accord Ex parte Watson, 306 S.W.3d 259, 274 (Tex. Crim. App. 2009) (noting that the elements of the lesser-included offense could not "reasonably be deduced from the descriptive averment" in the indictment). This is known as the functional-equivalence approach. State v. Meru, 414 S.W.3d at 162. Under it, the court examines the elements of the lesser offense and decides if they are functionally the same or less than those required to prove the offense charged in the indictment. Id. This is where appellant's argument falters.
One proves the crime of resisting arrest through illustrating that the accused intentionally prevented or obstructed a person he knew was a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another. TEX. PENAL CODE ANN. § 38.03(a) (West 2016); Dobbs v. State, 434 S.W.3d 166, 170-71 (Tex. Crim. App. 2014). As can be seen, it requires an intent to prevent or obstruct the effectuation of an arrest, search, or transportation of the accused. Count I of the indictment says nothing of such an intent. No doubt, the description of the aggravated assault by threat encompassed within Count I of the indictment comes close. It alludes to 1) appellant's knowledge of Nino being a police officer, 2) Nino attempting to arrest appellant, and 3) appellant engaging in a threat consisting of his driving a car at her. Missing from the particular verbiage of Count I, though, are words or phrases from which the intent to prevent or obstruct an arrest, search, etc. may be deduced. In short, the allegations between the greater and purportedly lesser offense at bar may be similar, but they are not functionally the same.
The State seems to suggest that a threat is not tantamount to the use of force. Yet, our Court of Criminal Appeals, when construing aspects of § 38.03(a), stated that "the Legislature would have understood the phrase 'using force against the peace officer or another' as meaning violence or physical aggression, or an immediate threat thereof in the direction of and/or into contact with, or in opposition or hostility to, a peace officer or another." Dobbs, 434 S.W.3d at 171 (emphasis added). So, it appears that a threat of physical aggression or violence, like driving a car towards an officer, may well be an instance of using force against the officer, contrary to the preDobbs opinions cited by the State. E.g. Petersen v. State, No. 01-11-00740-CR, 2012 Tex. App. LEXIS 4607, at *5-6 (Tex. App.—Houston [1st Dist.] June 7, 2012, no pet.) (mem. op., not designated for publication)(concluding that resisting arrest is not a lesser-included offense of aggravated assault by threat because the former requires the use of force and the latter requires a threat); Miller v. State, 86 S.W.3d 663, 665 (Tex. App.—Amarillo 2002, pet. ref'd) (concluding the same).
Since appellant did not address it, we do not decide whether Count III of the indictment should be considered in the equation when we are to look at the allegations in the "indictment." It charged appellant with evading arrest, which crime includes the element of fleeing from a police officer. TEX. PENAL CODE ANN. § 38.04 (West 2016) (stating that a person commits the offense of evading arrest "if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him").
We reverse the conviction and judgment and remand the cause to the trial court.
Brian Quinn
Chief Justice Do not publish.