David R. Poynter v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-060-CR
DAVID R. POYNTER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant David R. Poynter appeals his conviction for aggravated assault
of a public servant. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2),
(b)(2)(B) (Vernon Supp. 2008). In four related points, he asserts that the
1
… See Tex. R. App. P. 47.4.
evidence admitted at his trial is legally and factually insufficient to support his
conviction. We affirm.
Background Facts
On December 22, 2005, Fort Worth Police Department Officer Jerry
Cedillo received an anonymous tip regarding the presence of methamphetamine
at a motel room in Saginaw. He arrived at the motel at approximately 8:00
p.m., and he saw a Mercedes-Benz car parked in front of the suspected motel
room. After another Fort Worth officer (Sergeant Terry Porter) joined him at the
motel, Officer Cedillo saw Poynter leave the motel room and get in the car.
Officer Cedillo and Sergeant Porter, in unmarked vehicles, followed
Poynter as he began to travel on Interstate Highway 820 (IH 820).
Sergeant Porter saw Poynter commit traffic violations; Sergeant Porter then
requested that a marked police vehicle join Officer Cedillo and him to assist
with a traffic stop as Poynter continued to travel several more miles.
Officer Kirk Massey heard the request and found Poynter’s car; Officer John
David Riggall, in his own marked patrol car, joined in Officer Massey’s pursuit;
Officer Massey turned on his patrol lights, but Poynter did not stop.2
2
… At that time, Officer Cedillo returned to the motel to prevent anyone
from destroying evidence there. He eventually entered Poynter’s motel room,
where he discovered used syringes.
2
Poynter reversed his direction on IH 820;3 while traveling at about eighty
miles per hour, he then exited towards the motel with Officer Massey and
Officer Riggall following him. Poynter returned to IH 820,4 while continuing to
evade the police (with Sergeant H.G. Baxter joining the pursuit). Eventually, at
an exit off of IH 820, an assisting officer placed a spike strip; Poynter ran over
the strip, which deflated one of his tires. Poynter reduced his speed, but he did
not stop.
Poynter returned to the motel and circled its parking lot. He then left the
parking lot, eventually returned to the motel again, and left the parking lot
3
… When Poynter reversed direction, Officer Massey turned on his patrol
car’s sirens.
4
… At some point, a police helicopter followed the officers’ chase of
Poynter.
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another time; while doing so, he struck Sergeant Baxter’s marked patrol car.5
Poynter again went to IH 820.
Fort Worth Lieutenant Edmund Daniels joined the pursuit; by driving
parallel to Poynter, he prevented Poynter from crossing a median, which would
have allowed him to unsafely drive in opposite lanes of traffic. As Poynter
moved back onto the highway to drive in the correct direction of traffic, Officer
Riggall, standing on the outside shoulder of the highway (between the access
road and the highway), attempted to set up another spike strip to flatten
Poynter’s other tires. Poynter traveled across three lanes of traffic, toward the
shoulder of the highway, directly to where Officer Riggall (who was wearing his
uniform) was standing. Officer Riggall ran off the shoulder of the highway and
5
… Sergeant Baxter had parked the patrol car in response to Poynter’s
temporarily stopping his own car. Officer Massey and Officer Riggall had
moved their patrol cars to block one of the motel’s exits. Sergeant Baxter
testified,
I had opened the door and was literally in the process of starting to
put my foot out when I heard commotion and I looked up and saw
the vehicle coming directly towards me.
....
I slammed the door . . . and just braced myself for impact
because it was obvious he was fixing to ram me.
Sergeant Baxter sustained neck injuries requiring treatment for two months; his
patrol car had to be towed from the scene.
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into a ditch to avoid being struck by Poynter’s car. 6 Lieutenant Daniels pinned
Poynter’s car against a guardrail, and the pursuit finally ended.7
In April 2006, a Tarrant County grand jury indicted Poynter; the
indictment alleged that Poynter committed aggravated assault on a public
servant by intentionally or knowingly threatening bodily injury to Officer Riggall
while using his car as a deadly weapon.8 The indictment also contained a
habitual offender paragraph that alleged that Poynter had previously been
convicted of two other felony offenses.
6
… Officer Riggall stated that Poynter went from the center lane of the
highway to drive directly in his direction at about thirty miles an hour.
He explained,
[I tried] to throw [the spike strip] as far as I could out there because
[Poynter had] been driving back across the lane. I looked up and
I saw that his headlights were pointing towards me. He was
actually driving back across the outside lane towards me.
....
At that point, survival instinct kicked in and I turned and ran
back across the field or across the ditch towards my patrol unit.
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… Video tapes of the officers’ chase of Poynter’s car were mistakenly
erased. Sergeant Porter testified that when officers took Poynter out of his
vehicle, he showed signs of intoxication—he could not support his own weight
and his eyes were extremely dilated. Officer Riggall stated that Poynter did not
appear to be intoxicated.
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… The indictment alleged that Poynter’s car, in the manner of its
intended use, was capable of causing death or serious bodily injury.
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The trial court appointed Poynter’s counsel and the parties filed various
pretrial documents, then Poynter’s trial began with his not guilty plea. After the
parties concluded voir dire and they submitted their opening arguments, the
State presented its case, which consisted of testimony from the officers who
had been involved in Poynter’s chase. Poynter did not call any witnesses.
After the court read its charge to the jury and both sides presented closing
arguments,9 the jury found Poynter guilty. After hearing evidence regarding
Poynter’s punishment, the jury sentenced him to life in prison.
Standards of Review and Applicable Law
In his four points, Poynter contends that the evidence presented at trial
(as summarized above) is not legally or factually sufficient to support his
conviction.
Legal sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
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… In his closing argument, Poynter’s counsel theorized that Poynter did
not intend to drive at Officer Riggall, but that instead, Poynter either lost control
of his car or was just attempting to continue to evade the officers.
6
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play
to the responsibility of the trier of fact 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, 235
S.W.3d at 778.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown
v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000).
Instead, we “determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed
in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved
any conflicting inferences in favor of the prosecution and defer to that
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d
at 778. In determining the legal sufficiency of the evidence to show a
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defendant’s intent, and faced with a record that supports conflicting inferences,
we “must presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflict in favor of the prosecution, and must
defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim.
App. 1991).
Factual sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704–05
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
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In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000).
Unless the record clearly reveals that a different result is appropriate, we
must defer to the jury’s determination of the weight to be given contradictory
testimonial evidence because resolution of the conflict “often turns on an
evaluation of credibility and demeanor, and those jurors were in attendance
when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless
we conclude that it is necessary to correct manifest injustice, we must give due
deference to the factfinder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” Id. at 9. Our deference
in this regard safeguards the defendant’s right to a trial by jury. Lancon, 253
S.W.3d at 704.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
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on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). A
factual sufficiency review of circumstantial evidence is the same as a review
of direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.
2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999)
(reasoning that “[c]ircumstantial evidence, by itself, may be enough to support
the jury’s verdict”).
The elements of Poynter’s crime
The jury convicted Poynter of aggravated assault on a public servant.
Under the indictment in this case, that crime required the State to prove that
Poynter intentionally or knowingly threatened Officer Riggall with imminent
bodily injury from a deadly weapon while knowing that Officer Riggall was a
public servant and while Officer Riggall was lawfully discharging his official
duty. Dobbins v. State, 228 S.W.3d 761, 764 (Tex. App.—Houston [14th
Dist.] 2007, pet. dism’d); Dunklin v. State, 194 S.W.3d 14, 21–22 (Tex.
App.—Tyler 2006, no pet.); see Tex. Penal Code Ann. §§ 22.01(a)(2),
22.02(a)(2), (b)(2)(B).
Analysis
Poynter challenges the evidence supporting the jury’s implicit findings that
he intentionally or knowingly threatened Officer Riggall and that he used a
deadly weapon; he does not challenge that Officer Riggall is a public servant or
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that Officer Riggall was lawfully discharging his duty during the incident
described above.
The sufficiency of the evidence supporting Poynter’s intentional or knowing
threat of Officer Riggall
In his first and second points, Poynter respectively challenges the legal
and factual sufficiency of the evidence supporting that he intentionally or
knowingly threatened Officer Riggall. He contends that his conduct in this case
was “misinterpreted because he did not intend to hurt Officer Riggall. Instead,
[he] was attempting to evade arrest. The evidence of Officer Riggall’s fear . . .
is not sufficient to establish [Poynter’s] intent to threaten.” Poynter acted
intentionally by threatening Officer Riggall if it was his conscious objective or
desire to do so; Poynter acted knowingly if he was aware that such a threat
would occur. Tex. Penal Code Ann. § 6.03(a), (b) (Vernon 2003).
The intentional or knowing state of mind of a defendant may be proved
without direct evidence; such a state of mind may be “inferred from
circumstantial evidence such as [the defendant’s] acts, words, [or] conduct.”
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see Mashburn
v. State, 272 S.W.3d 1, 14 (Tex. App.—Fort Worth 2008, pet. struck); Krause
v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d) (explaining that “[p]roof of a culpable mental state almost invariably
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depends upon circumstantial evidence”). When reviewing the jury’s implicit
decision to infer that Poynter intentionally or knowingly threatened Officer
Riggall, it is “not necessary that [we] find to [our] own satisfaction that such
was [his] intent. It is enough for us to find that ‘any’ rational jury could have
so found beyond a reasonable doubt.” Brimage v. State, 918 S.W.2d 466, 476
(Tex. Crim. App. 1994).
Applying these standards, the evidence in the record is legally sufficient
to show that Poynter intentionally or knowingly threatened Officer Riggall by
driving at him. The uncontradicted testimony of three eyewitnesses indicated
that Poynter
• “moved from the center lane all the way over to the other
lane and onto the shoulder, and Officer Riggall ran . . . to
keep from being struck” (Sergeant Randy Whisenhunt’s
testimony);
• moved “right across all three lanes of traffic toward the
shoulder,” where he “[w]ent directly for Officer Riggall, drove
directly towards him,” to the extent that Officer Riggall
“jumped out of the roadway” (Lieutenant Daniels’s
testimony); and
• changed direction so that he was driving “across the outside
lane towards” Officer Riggall (Officer Riggall’s testimony).
In fact, while observing Poynter’s maneuver, Sergeant Whisenhunt yelled to
Officer Riggall, “[Poynter’s] going to try and hit you.” The testimony of two of
the three officers indicated that before Poynter made his move, he had been
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maintaining a single lane of traffic, and he had been successfully controlling his
car. The evidence established that after almost hitting Officer Riggall with his
car, Poynter simply moved back to the center lane of the highway and
continued eastbound. Finally, the jury heard testimony regarding Poynter’s
willingness to make contact with his vehicle—just a few minutes before driving
at Officer Riggall, Poynter struck Sergeant Baxter’s patrol car.
Viewing this evidence and the other evidence summarized above in the
light most favorable to the jury’s verdict and deferring to the jury’s implicit
inference about the weight of the evidence, we hold that the evidence
sufficiently indicates Poynter’s intent or knowledge regarding his threat to
cause imminent harm to Officer’ Riggall. We therefore overrule his first point.
We hold that the evidence is likewise sufficient when viewed according
to factual sufficiency standards. Because there was no evidence presented at
trial conflicting with the evidence described above, the jury’s determination
about Poynter’s state of mind could only be reversed for factual insufficiency
if the evidence was so weak that the determination was clearly wrong and
manifestly unjust. See Lancon, 253 S.W.3d at 705. We cannot conclude that
standard has been satisfied.
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First, although Poynter has offered possible reasons for driving at Officer
Riggall10 other than intentionally or knowingly threatening him,11 he presented
no evidence at trial to support those reasons. Next, Poynter’s assertion that he
was trying only to evade the officers who were pursuing him when he drove at
Officer Riggall does not make sense because there is nothing in the record
indicating that Poynter could not have continued his progression through the
center lane of the highway as he did before and after his diversion in Officer
Riggall’s direction. Finally, even if there was evidence in the record that
supported Poynter’s explanation of his conduct, the jury was free to either
believe or disbelieve that conflicting theory. See Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001) (stating that it “is a jury, not a reviewing
court, that accepts or rejects reasonably equal competing theories”); Gregory
v. State, 159 S.W.3d 254, 261 (Tex. App.—Beaumont 2005, pet. ref’d).
Affording the jury’s decision appropriate deference under the authority
cited above, we conclude that the evidence is factually sufficient to show that
10
… Importantly, he does not dispute that he drove his car in Officer
Riggall’s direction; rather, he asserts that his “conduct was misinterpreted.”
11
… As noted above, on appeal, Poynter contends that he was attempting
to evade arrest; during closing argument at trial, his counsel also asserted that
he may have lost control of his car.
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Poynter intentionally or knowingly threatened Officer Riggall. Therefore, we
overrule Poynter’s second point.
The sufficiency of the evidence supporting Poynter’s use of his car as a
deadly weapon
In his third and fourth points, Poynter respectively challenges the legal
and factual sufficiency of the evidence indicating that he used his car as a
deadly weapon. He contends that he did not drive his car in a manner clearly
endangering Officer Riggall’s life.
A deadly weapon is “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)(b) (Vernon Supp. 2008); see Butler v. State, 928 S.W.2d 286,
288 (Tex. App.—Fort Worth 1996, pet. ref’d). A car can be a deadly weapon.
Butler, 928 S.W.2d at 288; see Cates v. State, 102 S.W.3d 735, 738 (Tex.
Crim. App. 2003) (explaining that an “automobile can be a deadly weapon if it
is driven so as to endanger lives”); Davis v. State, 964 S.W.2d 352, 354 (Tex.
App.—Fort Worth 1998, no pet.) (holding that the defendant’s driving his car
in oncoming lanes of traffic qualified the car as a deadly weapon).
Applying the standards set forth above, we hold that the evidence
admitted at Poynter’s trial is legally sufficient to show that he used his car as
a deadly weapon. As described above, three eyewitnesses testified that
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Poynter drove his car directly at Officer Riggall and that Officer Riggall had to
quickly evade Poynter’s car to prevent being struck. Lieutenant Daniels
testified that Officer Riggall was “very much” in danger of being hurt; he also
opined that Poynter’s car was capable of causing death or serious bodily injury.
Sergeant Whisenhunt also testified that Poynter could have caused Officer
Riggall to die or sustain serious bodily injuries. Because this evidence could
have allowed a rational jury to determine beyond a reasonable doubt that
Poynter used his car as a deadly weapon as defined above, it is legally
sufficient. Clayton, 235 S.W .3d at 778. Thus, we overrule Poynter’s third
point.
The evidence is also sufficient when considered under the factual
sufficiency standard because it is not so weak that the jury’s determination was
clearly wrong and manifestly unjust. Lancon, 253 S.W.3d at 704. Poynter did
not present any evidence to contradict the opinions and observations of the
eyewitnesses that his driving at Officer Riggall endangered Officer Riggall’s life.
Thus, the jury’s determination that Poynter used his car as a deadly weapon
was based on factually sufficient evidence. See Cates, 102 S.W.3d at 738;
see also Tarin v. State, No. 08-02-00202-CR, 2004 WL 362601, at *4 (Tex.
App.—El Paso Feb. 25, 2004, no pet.) (mem. op., not designated for
publication) (holding that acceleration of a motorcycle at an officer, coupled
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with testimony that the motorcycle was capable of causing death or serious
bodily injury, when the defendant “did not provide evidence diminishing the
impact of the State’s evidence,” was factually sufficient to qualify the
motorcycle as a deadly weapon in an aggravated assault case). We therefore
overrule Poynter’s fourth point.
Conclusion
Having overruled all of Poynter’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 30, 2009
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