Bobby Lynn Keene v. State ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00389-CR
BOBBY LYNN KEENE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2014-1063-C2
MEMORANDUM OPINION
Bobby Lynn Keene was convicted of Aggravated Assault of a Public Servant
(enhanced) (Count I) and Evading Arrest or Detention with a Vehicle (enhanced) (Count
II), see TEX. PENAL CODE ANN. §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B); 38.04 (West 2011), and
sentenced to 40 years and 20 years in prison, respectively, to be served concurrently. Two
judgments were signed, one for each count. Because the evidence is sufficient to support
Keene’s conviction for aggravated assault (relating to Count I) and the evidence is
sufficient to show Keene had been previously convicted of deadly conduct (relating to
Count II), the trial court’s judgments are affirmed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Keene argues the evidence is legally insufficient to find him guilty
of aggravated assault on a peace officer as alleged in the indictment. Specifically, Keene
argues that the evidence is insufficient to prove there was an imminent threat to Steven
Stahl or Kenneth Witt, the officers alleged in the indictment.
LAW
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly 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. "Each 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, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
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326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, 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." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented by the parties. Chambers
v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A person commits an aggravated assault on a public servant if the person
intentionally or knowingly threatens another with imminent bodily injury, uses or
exhibits a deadly weapon during the commission of the assault, and the assault is
committed against a public servant lawfully discharging an official duty. TEX. PENAL
CODE ANN. §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B) (West 2011). A person commits
threatening conduct not only when the actor actually causes fear in another, but also (1)
when he creates an unacceptable risk that another may be placed in fear, and (2) when he
increases the likelihood that he will carry through on a threat and cause a physical injury.
Olivas v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006). "Imminent" bodily injury
requires a present, not a future, threat. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim.
App. 1989).
Keene takes issue with whether Deputies Steven Stahl or Kenneth Witt were
threatened with imminent bodily injury by Keene with the knife, concluding that Deputy
Eubank, who was not named as a victim in the indictment, was the only deputy so
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threatened.
Evidence
Keene was sitting in a pickup on the side of the road with the driver’s side window
broken out. When a Navarro County Sheriff’s deputy turned his patrol unit around to
check on Keene, Keene sped off in the pickup. The deputy pursued Keene with lights
and siren activated, but Keene would not stop. Keene was pursued for over 30 miles. He
drove over two sets of spikes and continued driving on the rims of his wheels. In
McLennan County, his vehicle was eventually bumped by law enforcement and it came
to a rest in a median.
Personnel from various law enforcement agencies surrounded Keene’s vehicle.
Deputies Steven Strahl, Kenneth Witt, and Chris Eubank approached the vehicle with
their weapons drawn. The three walked close enough to the vehicle that Eubank
attempted to open the driver’s side door. It would not open. As Eubank reached in
through the broken out window to try to unlock the door, Keene pulled out a large knife
made from what looked to be a horseshoe rasp, ground down or hammered out to a point
on one end which was sharpened and a crude handle on the other end. Keene held it at
a 45 degree angle, pointed upwards toward the area where the door window had been.
Deputy Strahl testified that Keene made a motion “like this” towards the three deputies.
All three deputies jumped back from the vehicle immediately. Both Strahl and Eubank
felt Keene was threatening them and Deputy Witt. Eubank felt Keene was threatening
the three deputies with imminent bodily injury. Eubank disagreed with Keene’s counsel
and asserted that if Keene was holding the knife “like this,” that action would be
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menacing. Eubank also asserted that they were in danger because Keene could have
thrown the knife or could have done a lot of things with the knife since the deputies were
so close. The in-car video of the stop shows that the three deputies were very close to the
pickup when all three suddenly jumped back.
Application
The knife used was introduced into evidence and has been personally examined
by the Court as it was by the jury. The knife is large. It was made from a heavy file or
rasp. It weighs just less than two pounds (30.9 oz.). It has a sharpened point with a
crudely ground dull edge down each side, somewhat like a dagger. Overall, it measures
over 14 inches long. It has finger grips ground into one side and a lead weight butt to
cover the former point of the file’s tang which is now part of the handle and the knife
butt.
There was ample testimony that Keene’s actions with the knife placed the deputies
in fear not only for themselves, individually, but also for each of the deputies. It makes
no difference that Eubank was the closest to Keene at the time Keene pulled out the knife
but was not identified in the indictment as a victim. Further the evidence indicates the
threat was a present threat, not a future one. And although we cannot tell from the
testimony how Keene was holding the knife, the jury was able to interpret what “like
this” meant, and we can infer that they believed Keene held the knife in an imminently
threatening manner toward the deputies. This is particularly evident from their uniform
reaction shown on the video when the knife was initially brandished.
Accordingly, reviewing the evidence under the established standard of review, we
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find the evidence sufficient to support Keene’s conviction as charged. Keene’s first issue
is overruled.
PRIOR CONVICTION
In his second issue,1 Keene asserts that the evidence is insufficient to establish
Keene had been previously convicted of deadly conduct in case number 31129 in the
County Court for Fannin County, Texas. Specifically, Keene argues the State did not
prove that he was the person named in the judgment of conviction.
To establish a defendant has been convicted of a prior offense, the State must prove
beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is
linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
However, no specific document or mode of proof is required to prove these two elements.
Id. Any type of evidence, documentary or testimonial, might suffice. Id. at 922.
Ultimately, the trier of fact looks at the totality of the evidence admitted to determine 1)
whether there was a previous conviction, and 2) whether the defendant was the person
convicted. If these two elements can be found beyond a reasonable doubt, then the
various pieces of evidence used are necessarily sufficient to prove a prior conviction. See
id. at 923.
Here, the State introduced State’s Exhibit 16 into evidence during the punishment
phase of the trial to show that Keene had been previously convicted of the offense of
deadly conduct. The exhibit contained certified copies of a complaint, information,
1 This is labeled as issue one in Keene’s supplemental brief.
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stipulation of evidence, various waivers and an order accepting those waivers, judgment
of guilt with terms of community supervision, motion to revoke community supervision,
and motion to withdraw motion to revoke community supervision. Although there were
no fingerprints affixed to any of the documents within the exhibit, most of the documents
contained Keene’s full name and one included his date of birth and social security
number. Further, the sponsoring witness of the exhibit testified that the information on
these documents was the exact same information as was contained in other documents
relating to Keene which the witness examined.
Keene complains that the evidence is insufficient because most of the identifying
information is contained on the motion to revoke which was ultimately dismissed by the
trial court. This is of no consequence. The important issue is whether a reasonable trier
of fact could find beyond a reasonable doubt that 1) the alleged prior conviction existed
and 2) this conviction is linked to appellant. See Flowers v. State, 220 S.W.3d 919, 924 (Tex.
Crim. App. 2007). After reviewing all the evidence submitted, we find a reasonable trier
of fact could find beyond a reasonable doubt that a conviction for deadly conduct existed
and that Keene was linked to the conviction.
Accordingly, the evidence is sufficient to establish Keene was the person convicted
of deadly conduct, and Keene’s second issue is overruled.
CONCLUSION
Having overruled each issue for review, we affirm the trial court’s judgments.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 3, 2017
Do not publish
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