Kevin Jonathan Dominique v. State ( 2010 )

Opinion issued April 8, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00385-CR

KEVIN JONATHAN DOMINIQUE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 57491

MEMORANDUM OPINION

          A jury convicted Kevin Jonathan Dominique of aggravated assault on a public servant and assessed punishment at seven years’ confinement and a $5000 fine.  Tex. Penal Code Ann. § 22.02(b)(2) (Vernon Supp. 2009).  On appeal, Dominique contends that the State:  (1) failed to present legally and factually sufficient evidence that Dominique acted intentionally or knowingly; and (2) failed to present legally and factually sufficient evidence that Dominique threatened Officer Brian Hoskins.  We hold that legally and factually sufficient evidence supports the conviction and therefore affirm.

Background

In May 2008, Christy Nickerson was gardening in the flowerbeds of her front yard when Dominique turned a car into her driveway and garage.  Nickerson did not know Dominique, and she and her neighbors called the police.  Dominique pulled in and out of her garage several times, at one point hitting a fence that stood between Nickerson and her neighbor’s property.  Dominique then drove off down the street.  Nickerson and her neighbors gave Dominique’s license plate number to the police.

Shortly after Dominique drove away from Nickerson’s house, Carol and Jerry Albright, who were driving down Velasco Road to Angleton, heard a broadcast of the incident over their police scanner.  The Albrights recognized Dominique’s car from the description given on the scanner, and they followed Dominique, who was driving erratically, for about twelve minutes, driving through the parking lot of a Wal-Mart and on the streets surrounding the Wal-Mart.  Carol called the police to notify them of Dominique’s current location.  When the police arrived, a chase ensued.  Dominique “spun out” while pulling out of the parking lot and onto Tigner Road and ended up facing the police officers.  Dominique then put the car in reverse, quickly drove down Tigner, stopped at a cattle guard gate, and then backed into the gate several times before knocking it down.

Dominique drove in reverse into a heavily wooded area immediately beyond the gate; four officers followed the car on foot.  Inside the wooded area, Dominique ended up in a small clearing and began driving back and forth, straight at the officers, while revving his engine in an attempt to escape from the clearing.  According to Sergeant Gentry, Dominique was “running in reverse, going forward, going just like a ping-pong machine.” Dominique ignored the officers’ commands to stop and turn off the car, and instead “tried to run [the officers] over” by driving in reverse toward the officers who stood at the entrance to the clearing.  The officers then shot at Dominique’s wheels in an attempt to stop the car.  When Dominique almost hit the officers a second time, Sergeant Gentry shot the rear left tire as well as the driver’s side window, because it appeared that Dominique did not intend to stop the car.

Ultimately, Dominique attempted to reverse out of the trees, but the tires could not gain traction and merely spun in place.  Officer Hoskins and Officer Lares then broke the driver’s side window with a police baton, and Hoskins reached inside to turn off the car.  Dominique screamed at the officers, wondering why they were trying to hurt him.  He hit Hoskins with his elbow several times to get him out of the way.  Shortly after Dominique began struggling with Hoskins, Dominique again put the car in reverse.  Dominique drove backwards for about five to eight feet with Hoskins hanging half out of the window until another officer pulled him free.[1]  Hoskins testified that he tried to get out of the window before Sergeant Mitchell pulled him out, but noticed that the front wheel was turned, and “if [Hoskins had] stepped down, [the wheel] would have run over [him].”  Dominique then reversed into another tree, drove forward out of the clearing, crashed into a nearby ditch, and ran from the car.

Sergeant Gentry testified that, when Dominique drove in reverse in his direction, he thought “[Dominique] was going to kill [him]” and he was in fear for his life and concerned about being seriously injured.  Hoskins stated that while Dominique was driving in reverse with him hanging out of the window, he “[f]elt like [he] was probably fixing to die right there” because he did not know if he could get far enough away from the vehicle without Dominique running over him.  Sergeant Mitchell testified that Hoskins could have suffered serious bodily injury or death because he was “trapped inside a moving vehicle without any control over the vehicle, half of his body out, half of his body in.  [And Dominique had] already smashed into several trees with his vehicle.”  Mitchell observed that Dominique was backing up towards a large tree, and if “[Dominique] had continued in that path with Officer Hoskins inside the vehicle, Officer Hoskins would have been pinned up against the tree or—or smashed against the tree.”  Hoskins also testified that he was placed in danger after he was pulled from the window and Dominique was driving forward out of the clearing.  According to Hoskins, had he and Sergeant Mitchell not jumped out of the way of Dominique’s car, Dominique would have run over them.

Discussion

Standard of Review

          Dominique contends that the State failed to present legally and factually sufficient evidence that he (1) acted intentionally or knowingly, and (2) threatened Officer Hoskins.  In a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The fact-finder is the sole judge of the weight and credibility of the evidence.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009).  The fact-finder may choose to believe a witness even if contradictory evidence is introduced, and may believe some or all of a witness’s testimony.  See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1990).  We resolve any inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

          In a factual sufficiency review, we view all of the evidence in a neutral light and we only set aside the verdict if the evidence, though legally sufficient, is so obviously weak that the verdict is (1) “clearly wrong and manifestly unjust” or (2) against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  We cannot decide that the verdict is “clearly wrong or manifestly unjust” just because, based on the quantum of evidence presented, we would have voted to acquit had we been on the jury.  See id. at 417.  To remand on factual insufficiency grounds, the record must contain an objective basis that the great weight and preponderance of the evidence contradicts the verdict.  See id.  The jury is in the best position to evaluate the credibility of the witnesses, and thus we defer to the jury’s determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).  In a factual sufficiency review, we must discuss the evidence that, according to the appellant, best supports his claim and undermines the verdict.  Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).

Intentionally or Knowingly

          A person commits the first degree felony offense of aggravated assault on a public servant if he (1) intentionally or knowingly threatens imminent bodily injury, (2) to a person he knows is a public servant, (3) while the public servant is lawfully discharging an official duty, and (4) uses or exhibits a deadly weapon during the assault.  Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2) (Vernon Supp. 2009).  A person acts intentionally “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) (Vernon 2003).  A person acts knowingly “with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist,” or if he “is aware that his conduct is reasonably certain to cause the result.”  Id. § 6.03(b). Intent or knowledge is a fact question to be determined from the totality of the circumstances.  Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Dobbins v. State, 228 S.W.3d 761, 764 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d).  Dominique does not challenge the jury’s finding that his car was a deadly weapon.

          Dominique contends that the State failed to present legally and factually sufficient evidence that he acted intentionally or knowingly, because the State did not present any evidence that Dominique used threatening language or made threatening gestures.  However, the law does not require evidence of threatening language or gestures to prove knowledge or intent.  Dobbins, 228 S.W.3d at 765.  Rather, a jury may infer the existence of knowledge or intent from “any facts tending to prove its existence,” such as the defendant’s acts, words, and conduct.  Id.  Here, we conclude that the surrounding circumstances provide sufficient evidence of intent.

Dominique concedes that his conduct was reckless, but he contends that the evidence supports the inferences that:  (1) Dominique’s only desire after his car got stuck in the trees was to get out of the clearing and away from police, and (2) he was reasonably certain that if he kept accelerating and shifting gears, he would get the car moving again.  Additionally, he observes that Hoskins was the one who decided to “dive into” Dominique’s vehicle, and he did so knowing that Dominique was trying to get the car moving.

Dominique focuses only on the incident in which Hoskins was dragged several feet backwards while hanging half out of Dominique’s window.  Dominique does not address the events that happened immediately after Sergeant Mitchell pulled Hoskins from the window: Dominique reversed into a tree, looked “straight ahead” at Hoskins, who was standing in front of the car, and started driving forward to leave the clearing.  Hoskins testified that, on both of these occasions, Dominique’s actions placed him in imminent danger of injury.  The jury reasonably could have inferred that Dominique’s conduct was intentional based on his repeated attempts to run down the police officers who stood in his way.

The facts here are similar to those in cases decided by our sister courts, in which they concluded that the evidence sufficiently proved intent.  In Dobbins, the Fourteenth Court of Appeals held that Dobbins acted intentionally or knowingly by driving at Officer Vest, stopping in front of Vest at his command, and then moving forward again as Vest started to walk toward the driver’s side window, hitting Vest and lifting him onto the hood of the car.  Dobbins, 228 S.W.3d at 765.  In reaching this holding, our sister court considered Dobbins’s conduct after his car first contacted Vest:  Dobbins continued to drive with Vest on the hood long enough for Vest to pull his gun, yell at Dobbins to stop, and call for assistance, and, after stopping the car a second time, Dobbins left the scene.  See id.

Similarly, in Sneed v. State, the Dallas Court of Appeals held that sufficient evidence existed to support a finding that Sneed acted knowingly when: (1) Sneed was aware that two officers were partially inside the vehicle, (2) Sneed physically struggled with one officer who was attempting to grab the car keys, (3) Sneed looked directly at the other officer and pinned her arm under his, and (4) Sneed drove away fast enough to leave tire marks on the pavement.  803 S.W.2d 833, 837 (Tex. App.—Dallas 1991, pet. ref’d).  The Dallas Court rejected Sneed’s contention that, when he sped away, he only intended to escape the police and did not intend to injure the officers, and therefore the evidence was insufficient to prove intentionally or knowingly.  Id. (“Knowledge of the probable result is sufficient.  If Sneed intended only to escape but was aware that flooring the accelerator while [Officers] Heard and Swinney leaned inside the Blazer was reasonably certain to cause them bodily injury, the offense was complete.”).  The Fort Worth Court of Appeals reached the same conclusion in Cole v. State, when Cole “was aware [that Officers] Vanover and Gilliland were partially inside his automobile when he chose to drive off at a high rate of speed.”  46 S.W.3d 427, 431 (Tex. App.—Fort Worth 2001, pet. ref’d).  Although the State presented no evidence that Cole intended to injure the officers, sufficient evidence supported the finding that Cole knew that “speeding off with the two officers hanging out of his vehicle and later attempting to shove them from the vehicle was reasonably certain to cause bodily injury.”  Id.

Here, each of the officers testified that Lares broke Dominique’s driver’s side window with his baton and Hoskins reached inside to attempt to turn off the car. Hoskins testified that Dominique was screaming and yelling, and hit Hoskins with his elbows as he tried to prevent Hoskins from turning off the car.  Although the car was stopped in a group of trees when Hoskins first reached inside, Dominique put the car in reverse and began moving backwards while Hoskins was still half inside the car.  Sergeant Gentry testified that Dominique dragged Hoskins backwards for approximately five to eight feet before Sergeant Mitchell pulled Hoskins free from the window.  After Dominique reversed into a tree, Hoskins stated that Dominique looked straight forward at Hoskins, who was standing in front of the car, and began driving forward. According to Hoskins, he “kind of dove” to the side to avoid being hit by Dominique’s car, and although Hoskins could not tell how closely the car passed beside him, he could feel “[t]he heat off the engine” as Dominique drove by.  Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Dominique acted intentionally or knowingly when he dragged Hoskins backwards and then drove straight toward him in an effort to leave the clearing.

Dominique points out that Sergeant Gentry testified that he did not see Dominique attempt to run over Officer Hoskins.  Hoskins, however, testified in detail about what happened after Sergeant Mitchell pulled him from the window, including Dominique’s attempts to run over them.  Dominique also points to testimony from Officers Hoskins and Lares that he was driving in an erratic and reckless manner, and testimony from Sergeant Gentry, who opined that Dominique was trying to escape from the officers and get out of the clearing, as evidence that contradicts the jury’s determination that Dominique acted intentionally or knowingly.  The Dallas Court of Appeals and the Fourteenth Court of Appeals rejected similar contentions in Sneed and Dobbins, respectively.  See Sneed, 803 S.W.2d at 837; Dobbins, 228 S.W.3d at 765.  The Dallas Court noted that even if the jury believed Sneed’s contention that he only intended to escape and did not intend to injure the officers, the evidence still supported a finding that Sneed acted knowingly, which was sufficient to satisfy the culpability requirement.  Sneed, 803 S.W.2d at 837.  Similarly, Dobbins’s contention that the evidence showed “at most . . . his desire to leave the parking lot and his recklessness or negligence in doing so” did not persuade the Fourteenth Court, and it held that the evidence “support[ed] the conclusion that [Dobbins] saw [Officer] Vest in front of the vehicle and intentionally or knowingly drove the vehicle into him.”  Dobbins, 228 S.W.3d at 765.

Sergeant Gentry’s testimony that he thought that Dominique was simply trying to get away from the officers and out of the clearing does not preclude a determination that, in attempting to escape, Dominique also intentionally or knowingly threatened Officer Hoskins.  A reasonable jury could choose to believe that, even if Dominique’s primary motivation was to escape the clearing, he acted intentionally or knowingly when he dragged Hoskins backwards and then drove straight toward him and Sergeant Mitchell.  Viewing all of the evidence in a neutral light, we hold that factually sufficient evidence exists to support the finding that Dominique acted intentionally or knowingly.

Threat

          Dominique further contends that the State failed to present legally and factually sufficient evidence that Dominique threatened Officer Hoskins.  The gist of an assault offense is that the defendant “acts with intent to cause a reasonable apprehension of imminent bodily injury.”  Dobbins, 228 S.W.3d at 766 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981)).  Threats are not limited to verbal statements, but may also be communicated by action or conduct.  Id. (citing McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984)).  The Court of Criminal Appeals has not “definitively resolve[d]” the question of whether the victim must perceive the threat to establish assault by threat.  Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006); Dobbins, 228 S.W.3d at 766 n.6.  The Court observed, however, that a perception of “some threat of imminent bodily injury,” coupled with the use of a deadly weapon supports a conviction for aggravated assault.  Olivas, 203 S.W.3d at 350; Dobbins, 228 S.W.3d at 766.

          In Dobbins, the Fourteenth Court held that sufficient evidence existed to support a finding that Dobbins threatened Officer Vest.  Dobbins, 228 S.W.3d at 767.  Dobbins drove the vehicle directly at Vest, stopped only when Vest commanded him to stop, and then started to drive forward again after Vest began walking to the driver’s side of the car, hitting him.  Id. at 766.  Vest testified that he felt “very threatened” when Dobbins began driving toward him the second time, and the Fourteenth Court concluded that Vest’s testimony “clearly demonstrates that [Dobbins’] conduct in driving the vehicle at Vest communicated a threat and that Vest perceived that threat.”  Id. at 766–67.  The Waco Court of Appeals also held that sufficient evidence of a threat exists when a defendant accelerates toward a person who attempts to dodge the car.  See St. Clair v. State, 26 S.W.3d 89, 97 (Tex. App.—Waco 2000, pet. ref’d); see also Green v. State, 831 S.W.2d 89, 93 (Tex. App.—Corpus Christi 1992, no pet.) (“With regard to the car, Green’s sudden acceleration toward Cardoza in an open parking lot forcing him to run inside the store is sufficient to show that Green intentionally threatened Cardoza with imminent bodily injury by use of a motor vehicle.”).

Here, Dominique placed the car in reverse and drove backwards with Officer Hoskins hanging half out of the driver’s side window, and later looked straight at Hoskins and Mitchell in front of the car and drove forward. Hoskins had to “leap” out of the way of Dominique’s car, and the car passed close enough to Hoskins that he could feel “[t]he heat off the engine.”  Hoskins testified that he felt like Dominique was trying to run him over and was concerned for his safety; he “felt like [he] was probably fixing to die right there” while Dominique was dragging him with the car in reverse.  Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could find beyond a reasonable doubt that Dominique intended to place Hoskins in apprehension of imminent bodily injury, and therefore the evidence is legally sufficient to support the jury’s verdict that Dominique threatened Hoskins.

Dominique contends that Hoskins’s testimony regarding what Dominique said while Hoskins was partially inside his vehicle indicates “that it was, in fact, [Dominique] who felt threatened.”  Hoskins testified that, when he tried to turn off Dominique’s car, Dominique screamed “why are you-all trying to hurt me, why are you-all trying to hurt me[?]”  Testimony that suggests that Dominique felt threatened by the officers’ presence does not contradict Hoskins’s later testimony that he was concerned for his safety as a result of Dominique’s conduct.  Viewing all of the evidence in a neutral light, we conclude that the evidence supports the jury’s conclusion that Hoskins perceived a threat and that Dominique intended to place Hoskins in apprehension of imminent bodily injury by dragging him backwards and then accelerating towards him.  We therefore hold that factually sufficient evidence exists to support the jury’s determination that Dominique threatened Officer Hoskins.

Conclusion

We hold that legally and factually evidence exists to support the jury’s conviction.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do Not Publish.  Tex. R. App. P. 47.2(b).

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[1] Sergeant Gentry testified that Officer Lares pulled Officer Hoskins from the vehicle, however, both Hoskins and Sergeant Mitchell testified that Mitchell was the one who pulled Hoskins free.