Anthony Robert Safian v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00153-CR
NO. 02-15-00154-CR
NO. 02-15-00155-CR
ANTHONY ROBERT SAFIAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1383629D, 1383630D, 1386101D
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MEMORANDUM OPINION1 ON REMAND2
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1
See Tex. R. App. P. 47.4.
2
A new panel was assigned to this case on remand because the three
original panel members have retired from the court.
I. INTRODUCTION
A jury convicted Appellant Anthony Robert Safian of aggravated assault on
a public servant, possession of less than one gram of heroin, and evading arrest
while using a vehicle. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (West
2011), § 38.04(a) (West 2016); Tex. Health & Safety Code Ann. § 481.115(a)–(b)
(West 2017). In his brief on original submission to this court, Safian raised three
points challenging the sufficiency of the evidence to support his convictions for
aggravated assault on a public servant and possession of less than a gram of
heroin and to support the jury’s finding that he had used a deadly weapon during
the evading arrest offense. In a separate point, Safian argued that the trial court
erred by denying his request for an instruction in the jury charge concerning
deadly conduct as a lesser-included offense of aggravated assault on a public
servant.
We held that the evidence was sufficient to support Safian’s convictions
and the jury’s deadly-weapon finding and that deadly conduct was not a lesser-
included offense of aggravated assault under article 37.09 as the latter offense
was charged in the indictment. See Safian v. State (Safian I), Nos. 02-15-00153-
CR, 02-15-00154-CR, 02-15-00155-CR, 2016 WL 828337, at *9 (Tex. App.—Fort
Worth Mar. 3, 2016) (mem. op., not designated for publication), rev’d, 543
S.W.3d 216 (Tex. Crim. App. 2018) (Safian II). Accordingly, we affirmed the
judgments in trial court cause numbers 1383629D (evading arrest while using a
vehicle) and 1383630D (aggravated assault on a public servant), we modified the
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judgment in trial court cause number 1386101D (possession of less than one
gram of heroin) to reflect a conviction for a state-jail felony because the judgment
incorrectly described the offense as a third-degree felony, and we affirmed that
judgment as modified. See id. at *9.
On Safian’s petition for discretionary review, the Texas Court of Criminal
Appeals concluded that deadly conduct, as a matter of law, is a lesser-included
offense of the charged offense of aggravated assault by threat where it is alleged
that appellant used or exhibited a motor vehicle as a deadly weapon. Safian II,
543 S.W.3d at 217, 219, 224. Because on original submission this court
performed only the first step of the two-step analysis for determining whether
Safian was entitled to the deadly conduct lesser-included offense instruction, the
court of criminal appeals remanded this case for us to conduct the second step.
Id. at 217, 224. After conducting the second step of the lesser-included offense
analysis, we again affirm Safian’s conviction for aggravated assault on a public
servant.3
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Because the issue remanded to us deals solely with Safian’s conviction
for aggravated assault on a public servant, the outcomes of Safian’s appeals
from his convictions for evading arrest while using a vehicle and for possession
of less than one gram of heroin remain unchanged from our prior opinion.
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II. FACTUAL BACKGROUND4
In September 2014, Fort Worth Police Department (FWPD) Officer Juan
Trujillo and another officer, while undercover, were monitoring a home where
they suspected that illegal drug sales were occurring. The home was in an area
in which drug-related crime was common. The officers saw a truck pull into the
driveway of the home, and Safian exited the truck and went inside. Less than
five minutes later, he left the home, got back into the truck, and drove away. In
an unmarked car, Officer Trujillo and his partner began to follow Safian.
Eventually, Safian stopped in the middle of a narrow residential road that
had overgrown vegetation and uneven pavement on its sides.5 Officer Trujillo’s
partner honked a horn several times, but the truck remained in the road
approximately fifteen feet in front of the officers’ car. The officers saw Safian
lean toward his truck’s center console; Officer Trujillo believed that Safian was
“ingesting . . . narcotics in his arm.”
Officer Trujillo called for a marked police unit to join him and his partner
there. FWPD Officer Matthew Pearce arrived. He parked his patrol car about
ten feet in front of Safian’s truck with the vehicles facing each other and exited
his patrol car. He saw the truck remaining in the middle of the road, which he
4
We set forth only the facts that are pertinent to the issue on remand, as
taken from the background section of our original opinion. See Safian I, 2016
WL 828337, at *1.
5
Officer Trujillo opined that two cars would not be able to safely pass each
other on the road. He also testified that the road had deep potholes.
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believed to be a traffic offense. After Officer Pearce had taken a few steps
toward Safian’s truck and had unholstered his gun, according to Officer Trujillo,
Safian sat up “really straight,” put the truck into gear, and quickly “sped towards
Officer Pearce.” Officer Trujillo saw Officer Pearce’s eyes “get really big” as the
truck spun its tires and moved toward Officer Pearce. From Officer Trujillo’s
vantage point, he initially thought that the truck had hit Officer Pearce. But
Officer Trujillo then saw Officer Pearce get into his patrol car and begin following
Safian. After a long chase in which Safian ran stop signs, drove the wrong way
into oncoming traffic, and traveled at speeds of forty to fifty miles over the speed
limit, he crashed with another vehicle.
III. NO EVIDENCE EXISTS THAT SAFIAN WAS GUILTY ONLY OF DEADLY CONDUCT
In his third point,6 Safian argues that the trial court erred by denying his
request for an instruction concerning deadly conduct as a lesser-included offense
in the jury charge for aggravated assault on a public servant.
A. Standard of Review
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
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We did not request, nor did the parties file, new briefing when this case
was submitted after remand.
5
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). An offense is a lesser-included offense of another offense, under article
37.09(1), if the indictment for the greater-inclusive offense either (1) alleges all of
the elements of the lesser-included offense or (2) alleges elements plus facts
(including descriptive averments, such as nonstatutory manner and means, that
are alleged for purposes of providing notice) from which all of the elements of the
lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259,
273 (Tex. Crim. App. 2009) (op. on reh’g).
Second, some evidence must exist in the record that would permit a jury to
rationally find that if the appellant is guilty, he is guilty only of the lesser offense.
Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855 S.W.2d at 672–73. Meeting this threshold requires more
than mere speculation; it requires affirmative evidence that both raises the
lesser-included offense and rebuts or negates an element of the greater offense.
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). The evidence
must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8.
The court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
B. Law on Aggravated Assault on a Public Servant and Deadly Conduct
As charged in the pertinent indictment, a person commits aggravated
assault on a public servant by intentionally or knowingly threatening a public
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servant with imminent bodily injury and using or exhibiting a deadly weapon
during the commission of the offense. See Tex. Penal Code Ann. § 22.01(a)(2)
(West Supp. 2017), § 22.02(a)(2), (b)(2)(B). A person commits deadly conduct if
he “recklessly engages in conduct that places another in imminent danger of
serious bodily injury.” Id. § 22.05(a) (West 2011).
C. Analysis of Second Step
As set forth above, the court of criminal appeals concluded that in this case
under the first step of the lesser-included offense analysis, deadly conduct, as a
matter of law, is a lesser-included offense of the charged offense of aggravated
assault by threat because the indictment alleged that Safian used or exhibited a
motor vehicle as a deadly weapon. See Safian II, 543 S.W.3d at 217, 219, 224.
Under the second step, we look to see if there is some evidence in the record
that would permit a jury to rationally find that if Safian is guilty, he is guilty only of
the lesser offense of deadly conduct. See Hall, 225 S.W.3d at 536.
Safian contends that he “only acted recklessly [as] shown by the evidence
that though his vehicle came near the area where [Officer] Pearce was situated,
he steered his pickup truck off the pavement to the right of [Officer] Pearce and
his patrol car in making his getaway.” Safian also contends that the condition of
the pavement made it impossible for him to drive very fast and that he did not
swerve toward Officer Pearce. The portions of the record cited in Safian’s brief
do not support these contentions. Instead, Safian’s steering his pickup truck off
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the pavement is consistent with testimony that two cars could not drive side by
side on the narrow road without one car driving on the grass.
Moreover, the record demonstrates that Safian’s conduct in driving
towards Officer Pearce was intentional or knowing, not reckless. As set forth in
our opinion on original submission in analyzing the sufficiency of the evidence to
support whether Safian intentionally or knowingly threatened Officer Pearce with
a deadly weapon,
the jury could have reasonably inferred that [Safian] intentionally or
knowingly threatened Officer Pearce with a deadly weapon from (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.
Safian I, 2016 WL 828337, at *4; see also St. Clair v. State, 26 S.W.3d 89, 97
(Tex. App.—Waco 2000, pet. ref’d) (holding that appellant intentionally or
knowingly threatened officer with imminent bodily injury by pointing vehicle in
officer’s direction and accelerating, causing officer to take cover because he “was
in fear of being struck by the car” as it accelerated toward him). Because no
evidence indicates that Safian was acting only recklessly, there is no evidence
that Safian is guilty only of deadly conduct. See Dixon v. State, 358 S.W.3d 250,
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258–59 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (stating that although
facts—that appellant at times during the chase drove on a trail used by vehicles
and drove in an opposite direction from the victim—might be indicative of lesser-
included offenses of deadly conduct or reckless driving, “this evidence does not
show that the defendant is guilty only of the lesser-included offense” in light of
testimony that he was chasing victim while on that trail and almost struck her with
his truck). Safian thus has not met the second step of the Hall analysis and was
not entitled to a lesser-included instruction on deadly conduct. See Amaro v.
State, 287 S.W.3d 825, 830–31 (Tex. App.—Waco 2009, pet. ref’d) (holding that
appellant was not entitled to lesser-included instruction on deadly conduct
because second step of Hall analysis was not met). Accordingly, we hold that
the trial court did not err by denying Safian’s request for an instruction on deadly
conduct, and we overrule Safian’s third point.
IV. CONCLUSION
Having overruled Safian’s third point, which contains the sole issue before
us on remand, we affirm the trial court’s judgment in 1383630D that reflects
Safian’s conviction for aggravated assault on a public servant.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: June 14, 2018
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