Booker Newsome v. State ( 2015 )

Opinion issued July 16, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00834-CR
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BOOKER NEWSOME, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1410219
MEMORANDUM OPINION
Appellant, Booker Newsome, was found guilty by a jury of the offense of
aggravated assault of a public servant by using a deadly weapon, namely a motor
vehicle. See TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (Vernon 2014). After
Appellant pleaded true to an enhancement paragraph, the trial court sentenced
Appellant to 20 years in prison. In one issue, Appellant asserts that the evidence
was insufficient to show that he used a motor vehicle as a deadly weapon.
We affirm.
Background
On December 2, 2013, John Robertson worked as a facilities campus
manager for Houston Community College at the central campus. Robertson was
driving around campus in a golf cart when he saw an altercation between Appellant
and a young woman. The woman was yelling at Appellant, asking that he leave
her alone. The woman ran into the middle of the street. Appellant pushed the
woman down, grabbed her hair, and pulled her across the street by her hair.
Robertson told Appellant to stop, but he did not comply. Robertson informed
Appellant that he was calling the police. Appellant stopped assaulting the woman
and began walking across a campus parking lot.
Robertson called 9-1-1. Officer M. Levene of the Houston Community
College Police Department was dispatched to the scene in his marked patrol car.
Once there, Roberts pointed out Appellant, who the officer saw running away.
Driving his patrol car, Officer Levene caught up with Appellant. Officer Levene
got out of his car and yelled for Appellant to stop. Officer Levene was dressed in
uniform. Appellant was only two to five feet away from Officer Levene.
Appellant looked at Officer Levene and told him, “You’re not going to catch me.”
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Appellant continued to run. Officer Levene ran after him. The two ran two
loops around the campus parking lot. During the foot pursuit, Officer Levene
yelled continually for Appellant to stop and to raise his hands. Appellant did not
comply. The foot chase continued for about two minutes until Appellant ran to his
car, an Impala.
The car was parked in a parking space in the campus parking lot. When
Appellant reached his car, Officer Levene was not far behind Appellant. Appellant
got into his car and revved the engine. Appellant then began backing out of the
parking space. At that point, Officer Levene was behind Appellant’s car, at the
mid-point of the car. Officer Levene was less than 20 feet away from the vehicle.
The vehicle began reversing; it was heading toward Officer Levene. Officer
Levene simultaneously jumped back and drew his firearm, a Glock 21 pistol.
Officer Levene yelled at Appellant, ordering him to stop the car. Appellant
continued to reverse toward Officer Levene. Officer Levene then fired his service
pistol several times into the trunk of Appellant’s car. Officer Levene moved into a
flanking position, behind Appellant’s car. The officer was still behind the vehicle
but to the side to allow him to see Appellant. Officer Levene noticed that
Appellant had not shifted the vehicle into park; rather, Appellant sat with his foot
on the brake. Officer Levene continued to order Appellant to stop the car and to
get out. Appellant did not comply. Instead, Appellant’s vehicle again reversed
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toward Officer Levene. To disable the car, Officer Levene again fired his service
pistol several times at the back of Appellant’s vehicle, flattening its tire. By this
point, other police officers had also arrived at the scene. Another police officer
who arrived fired a shot at Appellant’s car. Neither Appellant nor any other
persons were hit with gunfire.
The police ordered Appellant out of the car, but he still refused to get out of
the vehicle. He sat gripping the steering wheel. Four police officers wrestled with
Appellant to get him out of the vehicle. Appellant was placed under arrest and
later charged with the offense of aggravated assault of a public servant. The
indictment read as follows:
[O]n or about December 2, 2013, [Appellant] did then and there
unlawfully intentionally and knowingly threaten with imminent bodily
injury M. LEVINE [sic], hereafter called the Complainant, while the
Complainant was lawfully discharging an official duty, by using and
exhibiting a deadly weapon, namely a motor vehicle, knowing that the
Complainant was a public servant.
The jury found Appellant guilty of the charged offense. Appellant waived
his right to a jury during the punishment phase. Appellant pleaded true to an
enhancement allegation in the indictment, which alleged that he had previously
been convicted of the offense of possession of a controlled substance with the
intent to deliver. Appellant stipulated that he had also committed 11 other felony
and misdemeanor offenses, including drug possession, assault, and trespass. The
trial court sentenced Appellant to 20 years in prison.
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Appellant now appeals. He raises one issue in which he asserts that the
evidence was not sufficient to support the judgment of conviction.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App.
2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Pursuant to
the Jackson standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient
under the Jackson standard in two circumstances: (1) the record contains no
evidence, or merely a “modicum” of evidence, probative of an element of the
offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
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The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). An appellate court presumes that the fact finder resolved any conflicts in
the evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach 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.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Analysis
As charged in this case, a person commits the offense of aggravated assault
of a public servant if the evidence demonstrates that (1) the person intentionally or
knowingly threatened another with imminent bodily injury; (2) the person used or
exhibited a deadly weapon during the commission of the assault; and (3) the
offense was committed against a person the actor knew was a public servant while
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the public servant was lawfully discharging an official duty. TEX. PENAL CODE
ANN. §§ 22.01(a)(2) (Vernon Supp. 2014), 22.02(a)(2), (b)(2)(B). Appellant
asserts that the evidence is insufficient to support the judgment of conviction
because the evidence did not show that he used his car as a deadly weapon, as
alleged in the indictment.
Section 1.07(a)(17) defines “deadly weapon” as “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury” or “anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)
(Vernon 2011); see Mills v. State, 440 S.W.3d 69, 72 (Tex. App.—Waco 2012, pet.
ref’d) (“Case law has made it clear that the word ‘anything’ in the definition of a
deadly weapon means just that: anything.”). “Serious bodily injury” means
“bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any
bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46).
A motor vehicle can become a deadly weapon if the manner of its use is
capable of causing death or serious bodily injury. Drichas v. State, 175 S.W.3d
795, 798 (Tex. Crim. App. 2005). Specific intent to use a motor vehicle as a
deadly weapon is not required. Id. However, to sustain a deadly-weapon finding,
there must be evidence that others were “actually endangered;” the mere existence
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of a “hypothetical potential for danger” is insufficient. Cates v. State, 102 S.W.3d
735, 738 (Tex. Crim. App. 2003). To make this determination, we must first
evaluate the manner in which the defendant used the motor vehicle during the
felony, and then we must consider whether the motor vehicle was capable of
causing death or serious bodily injury during the felony. See Sierra v. State, 280
S.W.3d 250, 255 (Tex. Crim. App. 2009).
Here, Appellant asserts the State did not establish that he used his car in a
manner that could have caused Officer Levene serious bodily injury because the
evidence showed that the car backed out of the parking space at a slow speed and
traveled only two feet before stopping. Appellant points out that Officer Levene
testified that he jumped out of the way of the vehicle as it came toward him.
Appellant asserts that Officer Levene was “never in any real danger of being
struck” by the car. Appellant avers that his “manner of starting his parked Impala
then slowly travelling backwards two feet posed no danger to the officer, or
anyone else.” Appellant asserts that “[a]ny danger was simply hypothetical.”
The placement of the word “capable” is crucial to understanding the
definition in determining deadly-weapon status applicable to this case. Tucker v.
State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing McCain v. State, 22
S.W.3d 497, 503 (Tex. Crim. App. 2000)). The State is not required to show the
use or intended use causes death or serious bodily injury; it is only required to
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show the use or intended use is capable of causing death or serious bodily injury.
Id.
We first address Appellant’s assertion that the vehicle’s slow speed rendered
it incapable of being a deadly weapon. Appellant points to his own trial testimony
in which he stated that he backed the car slowly out of the parking spot. John
Robertson, the facilities manager who witnessed the incident, also indicated in his
testimony that Appellant’s car backed slowly out of the spot; however, he testified
that it appeared to him that Officer Levene was in danger of being injured by the
vehicle. Robertson agreed that Officer Levene would have been injured if he had
not gotten out of the car’s way.
At trial, the State presented testimony directly addressing the dangerousness
of a slow moving vehicle. Officer Stahlin of the Houston Police Department, who
conducted an investigation to determine whether Officer Levene had violated the
law by his use of his firearm, gave the following testimony:
Q. And did you take into account [in your investigation] the fact that
you didn’t know how fast or slow [the car] was going and how far it
traveled back in making the determination if the officer [Officer
Levene] still acted within the bounds of the law?
A. From my experience, I know that a car that is moving slow can still
knock you to the ground and even if that car is still moving slow, if
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you get caught underneath it, it can cause serious bodily injury or
death.1
Thus, the State presented evidence from which the jury could have reasonably
inferred that the car posed an actual danger to Officer Levene regardless of its
speed. The danger was not merely hypothetical.
In addition, the facts that the vehicle traveled only a short distance, that
Officer Levene was 10 to 20 feet away from the vehicle, and that Officer Levene
jumped out of the way of the car do not show that there was no actual danger to
Officer Levene. Robertson and Officer Levene testified that Appellant revved his
engine before backing out of the space. Officer Levene stated that, when he heard
the engine rev, he thought that Appellant “was going to run me over.” Robertson
and Officer Levene testified that Officer Levene was behind the car when
Appellant was reversing. Robertson agreed that Officer Levene would have been
injured had the officer not moved out of the car’s way.
Further, the evidence showed that Officer Levene believed that he was
justified in using force to stop the car as it backed toward him. Evidence was
presented that an internal police investigation also determined that Officer Levene
1
When asked why he used that description, Officer Stahlin stated that “they are the
legal words used that kind of justify force.” Officer Levene was never indicted for
any crime associated with the incident. The evidence also showed that an
investigation by the Houston Community College Police Department determined
that Officer Levene’s use of force had been justified and that he had not violated
any law or any internal department policy.
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had been justified in his use of force. And, despite the fact that Officer Levene had
shot the car a number of times, Appellant continued to back up his car a second
time. The evidence showed that Appellant stopped the vehicle because Officer
Levene shot its tire, disabling it. In other words, the vehicle traveled only a short
distance because Officer Levene was effective in defending himself and stopping
the car. Contrary to Appellant’s position, Officer Levene’s ability to thwart
Appellant’s escape and jump out of the way of the car does not serve to negate the
evidence showing that Officer Levene was in actual danger of serious bodily injury
or death before the vehicle stopped.
Moreover, the plain language of the deadly-weapon provision does not
require that the actor actually intend death or serious bodily injury; an object is a
deadly weapon if the actor intends a use of the object in which it would be capable
of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503
(Tex. Crim. App. 2000) (emphasis added).
Here, evidence was presented to show that Appellant intended to use the car
in a manner that was capable of causing serious injury or death. Robertson and
Officer Levene testified that Appellant revved his engine backing out of the space,
causing Officer Levene to think that Appellant “was going to run me over.”
Officer Levene’s and Robertson’s testimony indicated that Officer Levene would
have been injured had he not moved out of the car’s path.
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In his defense, Appellant testified that he had no intention of running over
Officer Levene. Appellant claimed that he did not know Officer Levene was
pursuing him and he did not know that the officer was behind his car. He stated
that he never heard Officer Levene yelling for him to stop either during the foot
pursuit or while he was in his car. Appellant also stated that he had not intended to
back up the second time, claiming that his foot had slipped off the brake.
In contrast, the State presented evidence indicating that Appellant knew that
he was being pursued by Officer Levene and that Officer Levene was behind the
car. The evidence showed (1) Appellant told Officer Levene that he was not going
to catch him; (2) Officer Levene chased Appellant on foot for two minutes, circling
the parking lot; (3) Officer Levene shouted for Appellant to stop during the foot
chase; (4) Appellant got in his car and revved the engine; (5) Officer Levene
yelled, ordering Appellant to stop the car; (6) Robertson and another officer
arriving at the scene heard Officer Levene yelling at Appellant while Appellant
was in the car; (7) Officer Levene was behind Appellant’s car, when he reversed;
(8) Officer Levene felt threatened to the point that he drew his weapon and fired
several times into the trunk of Appellant’s car; (9) Appellant stopped the car, but
did not shift it into park; (10) Officer Levene continued to order Appellant to stop
the car; and (11) Appellant continued to back up his car. From this evidence the
jury could have reasonably inferred that Appellant was aware that he was being
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pursued by Officer Levene, that he was aware that Officer Levene was behind his
vehicle, and that Appellant intended to use the car in manner rendering it capable
of causing serious injury or death to Officer Levene.
Viewing the evidence in a light most favorable to the verdict, we conclude
that, in the manner Appellant used or intended to use it, a rational fact finder could
have found beyond a reasonable doubt that the car was capable of causing death or
serious bodily injury; that is, the jury could have found the car was a deadly
weapon under the circumstances. We hold that the evidence is sufficient to
support the judgment of conviction for the offense of aggravated assault of a public
servant by using a deadly weapon.
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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