Frederick J. Braun v. State ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-90-184-CR



FREDERICK J. BRAUN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. CR89-187, HONORABLE FRED A. MOORE, JUDGE

PER CURIAM

A jury found appellant guilty of aggravated assault and assessed punishment at imprisonment for five years and a $2000 fine. Tex. Pen. Code Ann. § 22.02 (1989) [since amended]. In two points of error, appellant contends the trial court erred by refusing to submit a charge on the lesser included offense of reckless conduct and that the evidence is insufficient to sustain the conviction.

On August 12, 1989, Comal County deputy sheriff Edward Tijerina was on routine patrol when he was flagged down by the gate attendant at Potters Creek Park near Canyon Lake. The attendant told Tijerina that "Crazy Fred" had just driven through the gate at high speed in a school bus, towing a van. There were many visitors in the park that day, and the attendant asked the officer to "see what the problem was."

Tijerina found the bus parked near the lake, with appellant inside. The officer asked appellant for identification and was answered with an obscenity. Appellant closed the door of the bus and began moving around inside the vehicle, as if looking for something. Tijerina returned to his patrol car and moved it to a position in front of the bus, calling for a backup as he did so. Appellant started the bus and backed up several feet as if to leave. But instead of driving around the deputy's vehicle, appellant drove the bus into the side of the patrol car with Tijerina inside it, pushing it fifteen to twenty feet. Appellant then drove away.

Tijerina was unable to pursue appellant because his vehicle was disabled. Two other patrol officers answered Tijerina's call and eventually succeeded in stopping appellant's bus. The officers testified that appellant appeared to be intoxicated.

As alleged in the indictment, the jury found that appellant used a deadly weapon, the bus, to intentionally threaten imminent bodily injury to a peace officer. Citing testimony that appellant appeared to be intoxicated and used poor judgment, appellant contends the evidence does not exclude the hypothesis that he recklessly drove into Tijerina's patrol car and is therefore insufficient to sustain the jury's verdict. For the same reason, appellant urges that the court erred by refusing his requested charge on reckless conduct. Tex. Pen. Code Ann. § 22.05 (1989).

That appellant's judgment was impaired as a result of intoxication is not inconsistent with the finding that he intended to threaten the officer with bodily injury, nor does it raise an issue whether appellant acted recklessly. Craig v. State, 594 S.W.2d 91, 96 (Tex. Cr. App. 1980). Because there is no evidence to reasonably support a finding that appellant acted recklessly, the trial court did not err by refusing to charge on the lesser offense and the evidence is sufficient to sustain the verdict.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed:  August 30, 1991

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