No. 14-03-00859-CR
Memorandum Opinion filed September 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 919,412. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
KEM THOMPSON FROST, Justice.
In six issues, appellant Eric Wayne Chatham challenges his conviction for aggravated assault, alleging (1)-(2) the evidence is legally and factually insufficient to support the conviction; (3) the trial court erred in charging the jury on the special issue of use a deadly weapon; and (4)-(6) the trial court erred in admitting certain evidence. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July of 2002, appellant was a tow-truck driver for SL Towing Company. Late one weekend night, appellant arrived at the scene of a traffic accident, along with several other competing tow-truck drivers. After the driver of the wrecked vehicle asked appellant to tow her car, the other tow-truck drivers became angry, slashed appellant's tire, verbally threatened the customer, and physically attacked appellant. Because his tire was slashed, appellant could not tow the customer's car and had to call a co-worker. As a result, appellant lost the commission he would have earned for towing the wrecked vehicle. The next Monday afternoon, appellant went to a Discount Tire store to have his tire replaced. Coincidentally, Jose Ruiz and Samuel Medina, two of the other tow truck drivers involved in the fight the previous weekend, were there also. Appellant asked to have the tire repaired under a road-hazard warranty. When appellant was told that the warranty did not cover slashed tires and that he would have to pay for the repair himself, he became angry. Appellant pointed to Ruiz and Medina and shouted, "Them [expletive] right there stabbed my tire." Appellant and the two men began arguing and cursing at one another. The store manager, Steven Gaines, intervened. He told appellant he would replace the tire for free, even though it was not covered under the warranty, and told appellant that the repaired tire would be ready the next day. Appellant left the store but returned about ten to fifteen minutes later. Ruiz and Medina, along with Heather Thornton, another store customer, were outside smoking cigarettes. Appellant backed his truck into a parking space so that his truck was facing them. At some point, appellant and Ruiz resumed their argument, and Thornton reentered the store. Witnesses testified that they heard a loud sound, such as an engine being gunned, and then appellant's tow truck came crashing through the front of the store at a high rate of speed, shattering a plate-glass window and hitting Thornton, who was sitting just inside the window. Thornton was thrown over twenty feet through another plate-glass window and into the parking lot. Thornton suffered multiple injuries, including a brain hematoma, a torn muscle above her knee, numerous lacerations, and three broken vertebrae, leaving her confined to bed for three months. Two other store patrons, including Medina, were injured as well, but Ruiz was not. After the truck came to a stop, appellant got out and began chasing Ruiz to a restaurant in an adjacent parking lot. Appellant then returned to the scene and attempted to assist Thornton. Gaines, the store manager, called the police. When the first officer arrived, he began to have doubts as to whether the collision was an accident, so he called homicide detectives to assist in the investigation. The police determined that appellant had driven his truck more than fifteen feet in a straight line over the sidewalk in front of the store and into its showroom. There were no skid marks or other evidence of brakes being applied, and none of the witnesses heard any braking sounds. The detective testified that, based on his observations of the crime scene, the tires of appellant's tow truck were still spinning after impact and that the only thing that stopped the truck from going any further was the impact with the building's support beam. Appellant testified at trial that he never intended to hit Medina or Thornton. He claimed that he lost control of his truck attempting to exit the parking lot quickly after Ruiz scared him by threatening him with a knife. A jury found appellant guilty of aggravated assault with a deadly weapon, and the trial court sentenced him to imprisonment for twelve years. II. ISSUES PRESENTED
Appellant presents the following issues for appellate review: (1-2) Is the evidence legally and factually sufficient to sustain the conviction?
(3) Did the trial court err in submitting to the jury a special issue on the use of a deadly weapon?
(4) Did the trial court err in allowing a witness to testify that he did not believe the incident was an accident?
(5) Did the trial court err in overruling appellant's hearsay objection to the testimony of a witness about a statement made by appellant?
(6) Did the trial court err in admitting photographs disclosed less than ten days before trial?
III. ANALYSIS AND DISCUSSION
A. Is the evidence legally and factually sufficient to sustain the conviction? In his first two issues, appellant contends the evidence is legally and factually insufficient to show that he intentionally or recklessly drove into the Discount Tire store and that, because he did not intend to injure anyone, there is insufficient evidence to support a deadly weapon finding. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellants' evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). As applied to appellant's case, a person commits an aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. TEX. PEN. CODE ANN. § 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2004). A "deadly weapon" includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2004). The indictment in this case charged appellant with intentionally and knowingly injuring Thornton with his vehicle and, alternatively, with recklessly injuring her. Intent is a fact question for the jury and is almost always proven through evidence of the circumstances surrounding the crime. Childs v. State, 21 S.W.3d 631, 635 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Intent may be inferred from the words and conduct of the accused. Id. Here, the jury heard evidence that appellant was angry at Ruiz and Medina because of their previous altercation, in which appellant had been physically attacked, had his tire slashed, and lost a commission. The three men began arguing and cursing after appellant learned he would have to pay for the tire repair himself. The Discount Tire store manager offered to replace the tire at no charge to help resolve the situation and told appellant his tire would be ready the following day. However, appellant returned a short time later and backed his tow truck into a parking space facing Ruiz and Medina, who were standing outside the store. After a loud engine roar, appellant's tow truck traveled in a straight path and crashed through the front of the store, coming to a stop only after hitting the store's support beam. Appellant then got out of the car and began chasing Ruiz on foot, despite appellant's claim that he lost control of his vehicle when fleeing from Ruiz, whom appellant claims pulled a knife on him. Based on all the evidence before the jury, a rational trier of fact could have found appellant intentionally or recklessly caused injury beyond a reasonable doubt. Appellant also claims that because there is no evidence he intended to injure anyone, there is insufficient evidence to support a deadly weapon finding. We already have concluded that a rational jury could have found that appellant acted intentionally. Moreover, to support a deadly weapon finding, intent to use an automobile as a deadly weapon need not be shown. Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App. 1995). All that is required is evidence that the automobile, as used, is capable of causing death or serious bodily injury. Walker, 897 S.W.2d at 814; see also Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003) ("An automobile can be a deadly weapon if it is driven so as to endanger lives."). A rational jury could have found that driving a tow truck into the lobby of a business establishment with customers present might cause death or serious bodily injury. Accordingly, we overrule appellant's first issue challenging the legal sufficiency of the evidence. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, ___ S.W.3d ___, ___ (Tex.Crim.App. Apr. 21, 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at *4. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant asserts that the great weight of the evidence suggests not that he intentionally or recklessly ran his vehicle into the store building but that he lost control of his vehicle trying to leave the parking lot quickly. This is the same argument he made in support of his legal-sufficiency challenge. After reviewing all the evidence under the applicable standard of review, we conclude that the evidence is factually sufficient to support appellant's conviction. See Zuniga, 2004 WL 840786, at *7, ___ S.W.3d at ___. Accordingly, we overrule appellant's second issue. B. Did the trial court err in submitting to the jury a special issue on the use of a deadly weapon?
In his third issue, appellant claims the trial court erred in submitting a special issue on the use of a deadly weapon because (a) there is no evidence that he used the tow truck as a deadly weapon and (b) the indictment did not allege that his tow truck was a "deadly weapon" in each of the two paragraphs describing alternative ways of committing the offense. We already have concluded that there is sufficient evidence to support the jury's deadly weapon finding. Further, to justify a deadly weapon special issue, the indictment need not even allege the use of a deadly weapon if the State gives notice "in some form" of its intention to seek a deadly weapon finding. See Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex.Crim.App. 1990); Arizmendez v. State, 807 S.W.2d 436, 438 (Tex. App.-Houston [14th Dist.] 1991, no pet.). Given that one paragraph of the indictment clearly described appellant's tow truck as a deadly weapon, sufficient notice was given to allow submission of a deadly weapon special issue. See Grettenberg, 790 S.W.2d at 614-15 (holding that deadly weapon allegation contained in abandoned portion of indictment constituted sufficient notice). We overrule appellant's third issue. C. Did the trial court err in allowing a witness to testify that he did not believe the incident was an accident?
In his fourth issue, appellant complains that the trial court allowed improper opinion testimony. Gaines, the store manager, testified that he did not believe the collision was an accident. Appellant claims that this constituted testimony about his culpable mental state, which is improper, and that it was not helpful to the jury. We review the trial court's decision to admit this testimony for an abuse of discretion. See Fairow v. State, 943 S.W.2d 895, 901 (Tex.Crim.App. 1997). Texas Rule of Evidence 701 provides that lay witnesses may give opinion testimony if the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." TEX. R. EVID. 701. Even lay opinions regarding another's culpable mental state are permissible if based on "the witness's objective perception of events (i.e., his own senses or experience)." Fairow, 943 S.W.2d at 899. Thus, a prison guard who witnessed an inmate hitting a prison official properly testified that he believed the blows were intentional and not accidental because his opinion was rationally based on what he saw. Doyle v. State, 875 S.W.2d 21, 23 (Tex. App.-Tyler 1994, no pet.); see also Fairow, 943 S.W.2d at 899 (discussing Doyle with approval). Similarly, Gaines saw how upset appellant became after being told he would have to pay to replace the tire, witnessed the heated exchange between appellant and the other drivers, knew that appellant quickly returned to the store even after being told his tire would not be ready until the next day, and heard no braking as appellant's truck came into the store at a high rate of speed. Gaines's opinion that the collision was not an accident was rationally based on those experiences. Additionally, the testimony was helpful because it related to a disputed fact issue. See TEX. R. EVID. 701(b); Webster v. State, 26 S.W.3d 717, 725 (Tex. App.-Waco 2000, pet. ref'd). Accordingly, the trial court did not abuse its discretion in admitting Gaines's opinion regarding whether the collision was an accident. Even if the trial court's admission of the evidence were erroneous, the error would be harmless. The jury heard all the facts upon which Gaines's opinion was based, and Gaines was not depicted to be an expert on such matters. Therefore, the opinion added little, if any, weight to his testimony, and no harm resulted. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim. App. 2001). For these reasons, we overrule appellant's fourth issue. D. Did the trial court err in overruling appellant's hearsay objection to the testimony of a witness about a statement made by appellant?
In his fifth issue, appellant contends that Gaines's testimony that he heard appellant say "Them [expletive] right there stabbed my tire" is inadmissible hearsay. The statement was offered to show appellant's state of mind and motivation, not for the truth. Therefore, it is not hearsay. See Guidry v. State, 9 S.W.3d 133, 152 (Tex.Crim.App. 1999) ("[A] statement which is not offered to prove the truth of the matter asserted, but is offered for some other reason, is not hearsay."); Butler v. Joseph's Wine Shop, Inc., 633 S.W.2d 926, 932 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.) (statement offered "to show the state of mind of appellant" was not hearsay). Even if the statement were hearsay, admitting the statement was harmless error because on cross-examination, Gaines essentially repeated this testimony without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (holding that "overruling an objection to evidence will not result in reversal when other such evidence was received without objection"). We overrule appellant's fifth issue. E. Did the trial court err in admitting photographs disclosed fewer than ten days before trial?
In appellant's sixth issue, he complains that the State failed to produce photographs of Heather Thornton, taken by her family after she came home from the hospital, until three days before trial. The trial court entered a discovery order stating, among other things, that the State must disclose certain items at least ten days before trial, including "[a]ll . . . photographs . . . made or collected during the investigation of this case that the State intends to offer into evidence in its case in chief." The prosecutor stated that he disclosed the disputed photographs to appellant the day he received them, which was only three days before trial. Appellant objected that the State violated the discovery order, and the trial court overruled the objection. Appellant then made an oral request for a two-day continuance "to consult with a medical doctor regarding the injuries sustained or injuries shown" in the photographs. The trial court denied the request for continuance. On appeal, appellant asserts a different objection. He now claims admission of the photographs harmed him because they prejudiced the jury and contributed to his punishment. Appellant failed to make any sort of prejudice objection to the trial court, and therefore he has not preserved this complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998) ("[T]he point of error on appeal must correspond to the objection made at trial."). Even assuming appellant preserved this issue and assuming the State actually violated the discovery order, admission of the photographs was harmless. The photographs, which show Thornton with cuts, stitches, and bruises after being released from the hospital, are cumulative of her testimony and the testimony of other witnesses about the details and extent of the injuries she suffered and thus did not "affect the outcome of the trial." Crane v. State, 786 S.W.2d 338, 349 (Tex.Crim.App. 1990); accord Macias v. State, 704 S.W.2d 484, 488 (Tex. App.-Houston [14th Dist.] 1986, no pet.). We overrule appellant's sixth issue. Having overruled all of appellant's issues, we affirm the trial court's judgment.