Jordan Thomas Ayers v. State ( 2011 )

Affirmed and Memorandum Opinion filed December 22, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00747-CR
JORDAN THOMAS AYERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1233976
MEMORANDUM OPINION
Appellant Jordan Thomas Ayers appeals his conviction for aggravated assault on a
public servant and sentence of twenty-years‟ incarceration. In three issues, appellant
claims the evidence is legally insufficiency to support his conviction and the trial court
erred by prohibiting cross-examination about grand jury proceedings. We affirm.
BACKGROUND
On April 6, 2009, Sergeant Frank Fullbright of the Harris County Sheriff‟s
Department, who was assigned to a major violator narcotics task force, was conducting
surveillance on a motel. Fullbright was working undercover in plainclothes—jeans and a
fish-print shirt—instead of a uniform and was driving an unmarked Chevrolet pickup
truck. Fullbright noticed two people in a Pontiac Grand Prix—appellant as the driver and
Jerry Ramirez as the passenger—drive through the motel parking lot. Fullbright called
Officer N.J. Hernandez of the Houston Police Department to advise that he had observed
the people in the Grand Prix attempt to burglarize vehicles. Hernandez and his partner
Officer Mike Duncan were assigned to a “hot spot unit” in northeast Houston.1
Fullbright and Hernandez had known each other and worked together for a number of
years. Hernandez and Duncan were in uniform, but had on a jacket or shirt to conceal
their uniforms and were driving an unmarked Ford F-150 pickup truck. Hernandez and
Duncan, who were about a mile from the location of the motel, proceeded to the motel.
After being “spooked” when they tried break into a car at the motel, appellant and
Ramirez drove to another parking lot at a medical clinic. Fullbright, Hernandez, and
Duncan, who were in their unmarked vehicles at a shopping center across the street,
observed Ramirez try to open the door on a vehicle, but he was “spooked” again because
he quickly got back into the Grand Prix. The pair then drove to the same parking lot
where the officers were positioned. The officers observed appellant and Ramirez drive
up and down the aisles of the parking lot, looking inside different vehicles. The officers
followed the pair when they left and got on I-10 and drove to the west side of Houston to
the West Sam Houston Parkway.
The pair drove through a shopping center parking lot, looking at vehicles, and then
proceeded to the parking lot of the Houston Community College (HCC), eventually
pulling up next to a Dodge Durango. Appellant looked inside the vehicle, and Ramirez,
using a screw driver, pried open the door handle, got into the Durango, and then got back
into the Grand Prix. At that point, the officers decided to take appellant and Ramirez into
custody.
1
Hernandez testified that a hot spot unit is a two-man unit that works in high crime areas on
robberies, burglaries, auto thefts, and burglaries of motor vehicles. They work in both marked patrol units
and undercover vehicles and full uniform and civilian clothes.
2
After burglarizing the Durango, appellant and Ramirez pulled up next to a
Chevrolet Tahoe. To block the Grand Prix from leaving, Hernandez and Duncan pulled
up behind it and Fullbright pulled up in front of it.
Before exiting the Ford pickup truck, Duncan unbuttoned his jacket and tucked the
tail into the back of his belt so that his uniform and badge would be visible. With his
service weapon drawn, Duncan approached the passenger side of the Grand Prix from
behind and was about four feet to side of the passenger‟s side door. Ramirez turned and
looked at Duncan several times. Duncan yelled at Ramirez to put his hands on the
dashboard. Ramirez did not comply.
Hernandez dropped the windbreaker he was wearing over his black raid jacket,
with the word “police” in yellow letters, and uniform so that appellant and Ramirez
would know that he was a police officer. Hernandez approached from the left rear side of
the Grand Prix. According to Hernandez, appellant “looks back towards me, and then
looks up at the rear-view mirror and sees me. . . . [Appellant] made eye contact with me
when he looked in the rear-view mirror.”
Fullbright exited the Chevy pickup truck and was in front of the Grand Prix.
Although Fullbright was wearing plainclothes, his badge was hanging on a chain around
his neck facing out, his service weapon was in his right hand, and his identification was
in his left hand. All three officers were loudly identifying themselves as police and
yelling at appellant to turn off the engine. Instead of complying with those commands,
appellant backed up and then drove forward at a high rate of speed. Fullbright was about
eight feet in front of the Grand Prix. Fullbright testified that he made eye contact with
appellant: “He saw me. He was looking at me and I was looking at him.” The Grand
Prix hit Fullbright, and he landed on the hood. Fullbright described the event: “I
remember him driving straight at me. And the car hit me, hit me right in the knees, and I
flew up over the hood and I next thing I know my face hit the windshield . . . .”
3
Fullbright testified that he saw the driver facing him and he knew the driver “was trying
to kill [him].” Fullbright was hanging on to the hood and fired twice directly at appellant.
It felt to Fullbright like the Grand Prix hit another vehicle because he was
“ejected” off the hood. Fullbright described what happened: “[A]s I went off the hood I
went kind of off to the driver‟s side by the wheel well, and [as] soon as I hit the ground, I
figured it was a door, I don‟t think his door was shut at the time, I think the door came
back and hit me in the back and when it did it kind of knocked me under the car. And I
remember looking up and I could see the wheel wells and the undercarriage of the car,
and how I didn‟t get run over by the wheels I‟ll never know, . . .” Fullbright landed on
the ground, with his weapon and identification falling near him. Herndanez moved the
Ford pickup truck and positioned it so that no one else would run over Fullbright.
Fullbright suffered numerous injuries, including five broken ribs in the back and two in
the front.
The Grand Prix sideswiped two vehicles when it left the HCC parking lot.
Appellant hit the curb of the U-turn lane in the underpass at the West Sam Houston
Parkway and I-10, blowing out both front tires. Appellant fled on foot and was
apprehended by Harris County Deputy Constable Greg Mahannah about three-quarters of
a mile away, near an elementary school. Mahannah heard on the Houston police radio
that a shooting involving an officer had taken place at the HCC campus. Mahannah
spotted appellant, who matched the description of the suspect, walking near an
elementary school, handcuffed him, called his dispatcher to notify HPD, and called an
ambulance.
Appellant testified at the guilt-innocence stage of his trial. Appellant admitted that
he had four prior convictions for unauthorized use of a motor vehicle and two for evading
arrest. Appellant testified that he agreed to Ramirez‟s plan to break into cars that day.
According to appellant, after Ramirez broke into the Durango at the HCC parking lot,
Ramirez told him to back into a parking space and “just chill.” Appellant claimed he had
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the music turned all the way up. The windows of the Grand Prix were rolled up and the
engine was running.
Appellant saw a pickup truck park in front of the Grand Prix and Fullbright jump
out the truck. Appellant claimed he did not see Fullbright‟s badge or identification, but
he saw Fullbright‟s weapon. Appellant did not know that Fullbright was a police officer,
but, instead, thought Fullbright was going to rob him. Appellant testified that he did not
see Hernandez or Duncan coming from behind the Grand Prix and he did not make eye
contact with Hernandez. Contrary to Fullbright‟s testimony, appellant stated that as he
started backing up, he was shot in the mouth and panicked. 2 Appellant claimed that he
did not remember hitting Fullbright or blowing out the tires on the Grand Prix. Contrary
to Mahannah‟s testimony, appellant claimed that he flagged down Mahannah for help.
HCC student Juan Ferriero testified that he heard someone yell the word “police”
and then he heard five to eight gunshots. During the gunshots, Fierro saw Fullbright
standing in front of the car. Ferriero ducked behind a car and, when he looked up again,
he saw Fullbright on top of the windshield. Ferriero ducked again when more shots were
fired and he saw Fullbright fall off the car. Ferriero testified that he did not see
Hernandez or Duncan shoot their guns, but he saw smoke coming from their guns.
However, Hernandez and Duncan stated that they had not fired their weapons and
investigators at the scene confirmed that their weapons had not been fired.
The jury found appellant guilty of aggravated assault on a public servant and
assessed punishment at twenty-years‟ incarceration. This appeal followed.
2
Fullbright testified that “[t]he car had already struck me, hit me, and impaled me into the
windshield before I fired the first shot. Duncan similarly testified that Fullbright did not fire those shots
into the windshield before the car struck him.
5
ANALYSIS
Intentionally or Knowingly Threatened
In his first issue, appellant contends that the evidence is legally insufficient to
show that he intentionally or knowingly threatened Fullbright. We review the sufficiency
of the evidence in this case under a rigorous and proper application of the Jackson v.
Virginia, 443 U.S. 307 (1979), legal sufficiency standard. Brooks v. State, 323 S.W.3d
893, 906 (Tex. Crim. App. 2010) (plurality opinion). When reviewing the sufficiency of
the evidence, we view all of the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences from it, whether any
rational fact finder could have found the elements of the offense beyond a reasonable
doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); see also Jackson,
443 U.S. at 319. The jury is the exclusive judge of the credibility of witnesses and the
weight to be given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). Further, we defer to the jury‟s responsibility to fairly resolve or reconcile
conflicts in the evidence. Id. We draw all reasonable inferences from the evidence in
favor of the verdict. Id. This standard applies to both circumstantial and direct evidence.
Id.
To sustain a conviction for aggravated assault of a public servant, the evidence
must demonstrate 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 the public servant was lawfully discharging an official
duty. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing TEX. PENAL
CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B)). The actor is presumed to have known
the person assaulted was a public servant if the person was wearing a distinctive uniform
or badge indicating the person‟s employment as a public servant. TEX. PENAL CODE
ANN. § 22.02(c).
6
“A person acts intentionally, or with intent, 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.” TEX. PENAL CODE ANN. § 6.03(a) (West 2011).
Moreover, “[a] person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the nature
of his conduct or that the circumstances exist.” Id. § 6.03(b). Finally, “[a] person acts
knowingly, or with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result.” Id. A defendant‟s intent or
knowledge is a question of fact, which is 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). The
State can prove a defendant‟s knowledge or intent without evidence of threatening
language or gestures, and the jury may infer the existence of either mental state from any
facts tending to prove its existence, including the defendant‟s acts, words, and conduct.
Dobbins, 228 S.W.3d at 765.
Appellant argues that the evidence failed to prove beyond a reasonable doubt that
he intended to place Fullbright in fear by using or exhibiting the motor vehicle.
Appellant asserts, “Probably Fullbright was fearful when he was atop the hood of the car,
but that does not necessarily mean the appellant either intended to scare Fullbright by
driving into him or knew that he would scare Fullbright by doing that.” Appellant further
points to Fullbright‟s testimony that, when appellant refused to comply with the officers‟
orders, he was not resisting arrest, but “was just trying to get away.”
The record shows that Fullbright and appellant made eye contact before appellant
backed up and then drove into Fullbright at a high rate of speed. Fullbright was eight feet
in front of the Grand Prix. Fullbright testified: “I looked through the windshield and I
saw the driver facing me . . . And I know he was trying to kill me.”
7
Even if appellant only intended to flee the scene but was aware that driving his
vehicle at Fullbright was reasonably certain to place him in fear of imminent bodily
injury, appellant acted with the requisite mental state to be guilty of knowingly
threatening imminent harm. See TEX. PENAL CODE ANN. § 6.03(b) (“A person acts
knowingly, or with knowledge, with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result.”); Dobbins, 228 S.W.3d at 765
(holding that evidence was sufficient to show that the appellant intentionally or
knowingly threatened a deputy constable where the appellant drove directly at the
constable but stopped when he raised his hand and asked the appellant to stop, started
driving again, hitting the deputy and lifting him onto the hood as the deputy walked in the
direction of the driver‟s side, and continued to drive with the deputy on the hood—long
enough for the deputy to pull his pistol, repeatedly yell commands to stop, and call for
assistance on his radio—instead of stopping); Creighton v. State, No. 08-09-00022-CR,
2011 WL 743073, at *3 (Tex. App.—El Paso Mar. 2, 2011, no pet.) (not designated for
publication) (holding that evidence was sufficient to establish intent to threaten with
imminent bodily harm where the officer arrived on scene, approached the passenger side
of the appellant‟s vehicle and indicated in very loud voice that he needed to talk to the
appellant, but the appellant disregarded the officer‟s instructions, backed up his vehicle,
stopped, put his vehicle into drive, and turned the wheels toward the officer, who was
standing ten feet away from the front of the vehicle, and accelerated towards the officer,
requiring him to jump onto curb to get out of harm‟s way); Martinez v. State, No. 08-01-
00358-CR, 2003 WL 21710757, at *5 (Tex. App.—El Paso July 24, 2003, no pet.) (not
designated for publication) (concluding that a rational jury could reasonably infer from
the appellant‟s conduct that he intentionally and knowingly threatened an officer by
driving straight towards the officer while the officer was standing approximately twenty
feet in front of the appellant‟s vehicle and ordering the appellant to desist; even if the
appellant did not intentionally threaten the officer by use of his motor vehicle, the jury
8
could infer that the appellant was aware that his conduct was reasonably certain to cause
a threat of imminent bodily injury).
Appellant‟s conduct after hitting Fullbright is further evidence of his intent to
threaten Fullbright and his knowledge that his actions would have that result. See
Dobbins, 228 S.W.3d at 765-66 (holding that the appellant‟s conduct after driving the
vehicle into the officer also constituted evidence of his intent to threaten the officer and
his knowledge that his actions would have that result). Rather than stopping immediately
after hitting Fullbright, appellant continued to drive with Fullbright on top of the hood for
approximately eight to ten parking places or six to eight seconds—long enough for
Fullbright to fire two shots from his weapon, and for what seemed like a “long time” to
Fullbright. After Fullbright was ejected from the hood, the car struck Fullbright again.
As he continued to flee, appellant sideswiped two other vehicles and struck a curb in the
underpass, blowing out both front tires. Because the car could no longer be driven,
appellant continued to flee on foot until a deputy constable apprehended him about three-
quarters of a mile away.
We hold that the evidence is sufficient to show that appellant intentionally and
knowingly threatened Fullbright with imminent bodily injury and overrule appellant‟s
first issue.
Public Servant Lawfully Discharging an Official Duty
In his second issue, appellant contends that the evidence is legally insufficient to
show that he knew Fullbright was a public servant who was in the lawful discharge of his
official duty. The jury was instructed on the following presumption:
The defendant is presumed to have known the person assaulted was a
public servant if the person was wearing a distinctive uniform or badge
indicating the person‟s employment as a public servant.3
3
See TEX. PENAL CODE ANN. § 22.02(c).
9
Appellant claimed that he did not know Fullbright was an officer. Although
Fullbright testified that his badge hung on a chain on his “fishing” pattern shirt, appellant
argues that the badge would not have been visible on a running person, displayed against
a patterned background in a view lasting on a few seconds. Appellant also argues that,
because Fullbright‟s identification was a “flap type” identification, “[t]his would have
been no more telling as to Fullbright‟s status than if Fullbright had flipped open a wallet
and waved it in the air as he was running.” Appellant further asserts that that he could
not have possibly read the fine print on Fullbright‟s identification card.
Appellant states that the most conspicuous item Fullbright displayed was a
handgun, which he argues, in Houston, “this could mean either a policeman or robber.”
Although the officers said they shouted “police,” appellant contends that it was not clear
that he heard them because the engines on the three vehicles were running and the music
in the Grand Prix was purportedly turn all the way up. Appellant further points out that
Fullbright testified that he shouted statements punctuated with epithets and argues,
“[b]etween the loud, dirty words from Fullbright‟s mouth and the loud, dirty words from
the rap song playing in the car, it is not at all clear that the appellant heard the word
„police.‟”
Hernandez testified that he “dropped” the windbreaker he was wearing over his
police raid jacket and uniform so that appellant and Ramirez would know that he was a
police officer. Duncan testified that he unbuttoned the shirt covering his uniform and
tucked the tail of the shirt into the back of his belt so that his uniform would be visible.
Hernandez and Duncan approached the Grand Prix loudly identifying themselves as
police officers. The passenger looked at Duncan several times and appellant and
Hernandez made eye contact. Like Hernandez and Duncan, Fullbright loudly identified
himself as a police officer, and was approaching the vehicle about the same time
Hernandez and Duncan were. Fullbright‟s badge was hanging on a chain around his
neck. The badge lay on Fullbright‟s chest, facing outward.
10
Appellant claimed at trial that he would have turned off the engine and exited the
vehicle if had known that Fullbright was a police officer. However, appellant admitted
that he had two prior convictions for evading arrest for which he had pleaded guilty.
Appellant also agreed to Ramirez‟s unlawful plan to break into cars that day.
Here, the jury was the exclusive judge of the credibility of witnesses and the
weight to be given to the evidence. See Isassi, 330 S.W.3d at 638. It was in the jury‟s
province to resolve or reconcile any conflicts in the evidence. See id. The jury could
infer that appellant was aware that Fullbright was a police officer, working with two
other police officers, who were in full uniform, attempting to apprehend appellant and
Ramirez for burglarizing a vehicle, and reject appellant‟s claim that he thought Fullbright
was attempting rob him. We overrule appellant‟s second issue.
Exclusion of Evidence Concerning Grand Jury Proceedings
In his third issue, appellant asserts that the trial court erred by prohibiting cross-
examination about the amount and type of evidence presented to the grand jury that no-
billed Fullbright.
After the defense rested, the State called Bill Jordan, an investigator with the
Harris County District Attorney‟s Office, as a witness. Jordan testified that he
investigates officer-involved shootings to determine whether an officer may have done
anything criminally wrong. Jordan explained that all the facts of the police shooting are
presented to a grand jury, which ultimately determines whether there was any officer
wrongdoing. Jordan, who responded to the scene involving Fullbright, explained that
“[a]ll the facts of the case were presented [to the grand jury]. Fullbright was the target of
the investigation, because he was the only one that we had evidence that did any
shooting.” Jordan testified that the grand jury did not find any criminal wrongdoing by
Fullbright and no-billed him.
11
When appellant‟s counsel attempted to question Jordan on cross-examination
about whether any witnesses were called to explain to the grand jury what happened, the
trial court sustained the State‟s objection based on relevance. The following took place:
Q. Were any witnesses called to the grand jury to explain what
happened?
[THE STATE]: I‟m going to object to relevance, your Honor.
THE COURT: That‟s sustained.
[APPELLANT‟S COUNSEL]: Judge, I‟d ask leeway in this
regard. He‟s got in whether it was a no bill. I think the jury‟s entitled to
know how much evidence they heard to make that determination.
THE COURT: The objection is sustained.
Q. (By Mr. Easterling) Was my client called to the grand jury to try to
explain his side of it?
[THE STATE] Objection, relevancy, your Honor.
THE COURT: That‟s sustained.
Q. (By Mr. Easterling) Were you present when the case was presented
to the grand jury?
[THE STATE]: Objection, relevancy, your Honor.
THE COURT: I‟ll let him answer that, then we‟ll move on.
Q. (By Mr. Easterling) Go ahead, sir.
A. No I was not.
Q. So what you‟re testifying to is hearsay; is that correct? You don‟t
have any personal knowledge of it?
A. (No response.)
Q. You know what hearsay is?
A. I don‟t know what you‟re referring to, though.
12
MR. EASTERLING: I‟ll pass the witness.
Appellant made no complaint to the trial court that his right of cross-examination
was being improperly limited. To preserve error when the trial court excludes evidence,
the proponent must object, obtain a ruling from the trial court, and make the substance of
the excluded evidence known in the form of an offer of proof, or the excluded evidence
must have been apparent from the context. TEX. R. EVID. 103(a)(2); TEX. R. APP. P.
33.1(a)(1). The proponent must also state the grounds for the ruling he desires “with
sufficient specificity to make the trial court aware of the complaint.” TEX. R. APP. P.
33.1(a)(1)(A). Preservation requirements apply to confrontation clause complaints.
Robinson v. State, 310 S.W.3d 574, 577 (Tex. App.—Fort Worth 2010, no pet.). When a
single objection encompasses complaints under both the Texas Rules of Evidence and the
Confrontation Clause, the objection is not considered sufficiently specific to preserve
error. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005).
Because appellant did not specifically assert his right to confrontation, appellant
has waived his confrontation and cross-examination complaint. Robinson, 310 S.W.3d at
578 (holding that the appellant‟s failure to object to limitation of cross-examination
waived his right to raise such complaint on appeal); Gibbs v. State, 7 S.W.3d 175, 178
(Tex. App.—Houston [1st Dist.] 1999, pet. ref‟d) (holding that the failure to object to the
trial court‟s limitation on cross-examination waives objection on appeal). We overrule
appellant‟s third issue.
Having overruled all of appellant‟s issues, we affirm the trial court‟s judgment.
_
/s/ Sharon McCally
Justice
Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
13