Darril Hagger Karl, Jr. v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00001-CR
DARRIL HAGGER KARL, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1396699D
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MEMORANDUM OPINION1
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Appellant Darril Hagger Karl, Jr. appeals his convictions for aggravated
assault on a public servant and for evading arrest. In his first and second points,
appellant contends that the evidence fails to prove a fact alleged in the
indictment and is therefore insufficient to support his conviction for aggravated
assault. In his third point, he contends that the evidence is insufficient to prove
1
See Tex. R. App. P. 47.4.
that his truck qualified as a deadly weapon by his use or intended use of it. We
affirm.
Background Facts
A grand jury indicted appellant with aggravated assault on a public servant
(by causing bodily injury and using or exhibiting a deadly weapon) and with
evading arrest.2 With regard to the aggravated assault count, the indictment
alleged that appellant intentionally or knowingly caused bodily injury to a police
officer, Ernesto Tamayo, by “STRIKING HIM WITH [APPELLANT’S] VEHICLE.”
Concerning the evading arrest count, the indictment alleged that appellant used a
vehicle to evade Officer Tamayo while knowing that Officer Tamayo was
attempting to detain him. The indictment contained a paragraph alleging that
appellant had been previously convicted of two felony offenses.
Appellant received appointed counsel, chose the trial court to assess his
punishment in the event of his conviction, and pled not guilty to both charges in
front of a jury. The jury received evidence that in December 2014, while several
police officers were attempting to arrest a suspect on a murder warrant,
appellant, who was driving a truck containing the suspect, attempted to evade
2
See Tex. Penal Code Ann. §§ 22.01(a)(1), 38.04(a) (West Supp. 2016),
§ 22.02(a)(2), (b)(2)(B) (West 2011).
2
the police and eventually rammed Officer Tamayo’s vehicle before crashing into
a brick wall.3
After the parties completed their presentations of evidence and arguments,
the jury found appellant guilty of both offenses. At punishment, the trial court
found the enhancement allegation in the indictment to be true and sentenced
appellant to thirty-five years’ confinement on each count. The court ordered the
sentences to run concurrently and entered affirmative deadly weapon findings in
the judgments for both counts. Appellant brought this appeal.
Evidentiary Sufficiency
In all three points, appellant argues that the evidence is insufficient to
support his convictions. He contends in his first two points that the evidence is
insufficient because of a variance between the indictment’s language and the
evidence at trial with respect to his aggravated assault conviction,4 and he
asserts in his third point that the evidence is insufficient to prove that his truck
was a deadly weapon by his use or intended use of it.
3
According to another officer involved in the chase, this collision “set off
every air bag in [Officer Tamayo’s] vehicle and completely disabled further
control of that vehicle.” Officer Tamayo testified that the crash caused pain to his
left arm, left shoulder, and face.
4
Appellant argues in his first point that the trial court erred by denying his
motion for a directed verdict. This argument is a challenge to the sufficiency of
the evidence to support his conviction. See Dominguez v. State, 355 S.W.3d
918, 921 (Tex. App.—Fort Worth 2011, pet. ref’d) (mem. op.).
3
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). 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; Murray v. State, 457 S.W.3d 446,
448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). To determine
whether the State has met its burden under Jackson to prove a defendant’s guilt
beyond a reasonable doubt, we compare the elements of the crime as defined by
the hypothetically correct jury charge to the evidence adduced at trial. Thomas v.
State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see Crabtree v. State, 389
S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime
are determined by state law.”).
Alleged variance
In his first two points, with respect to his aggravated assault conviction,
appellant contends that there is a variance between the indictment’s language
and the proof at trial and that the State therefore “failed to prove an essential
element.” Specifically, he argues that the evidence is insufficient to support his
conviction because while the indictment alleged that he caused injury to Officer
Tamayo by striking him with his truck, the evidence showed that he caused injury
4
to Officer Tamayo by striking Officer Tamayo’s car with his truck. He contends,
“The State was required to prove beyond a reasonable doubt what the State
alleged in the indictment: that [appellant’s] vehicle actually hit Ernesto Tamayo.
The State only proved that [appellant’s] vehicle hit Ernesto Tamayo’s vehicle.”5
A person commits aggravated assault by intentionally or knowingly causing
bodily injury to another while using or exhibiting a deadly weapon. See Tex.
Penal Code Ann. §§ 22.01(a)(1), .02(a)(2). Recently, we held that in an
assaultive offense, the manner and means of causing a victim’s injury are not
essential elements of an offense that are required to be included in a
hypothetically correct jury charge. Guzman v. State, No. 02-14-00297-CR, 2015
WL 6664471, at *5 (Tex. App.—Fort Worth Oct. 29, 2015, no pet.) (mem. op., not
designated for publication). In reaching that conclusion, we stated,
Several courts have held that the manner and means of the bodily
injury alleged is not an essential element of an assaultive offense
and therefore is not included in the hypothetically correct jury
charge. Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.—El Paso
2009, no pet.); Rodriguez v. State, 274 S.W.3d 760, 767 (Tex.
App.—San Antonio 2008, no pet.); Phelps v. State, 999 S.W.2d 512,
516 (Tex. App.—Eastland 1999, pet. ref’d) . . . . A variance between
the manner and means alleged and the actual manner and means
used does not preclude a conviction. Thomas, 303 S.W.3d at 333.
Even though the State may include the manner and means in the
indictment, it will be disregarded in a hypothetically correct jury
charge. See Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim.
5
Appellant unsuccessfully sought a directed verdict on this theory in the
trial court. We will assume without deciding that the difference between hitting
Officer Tamayo’s person as opposed to his car constitutes an actual variance
between pleading and proof, and we will confine our analysis to whether any
such variance was material.
5
Ohio App. 2012) (holding variance immaterial in aggravated assault case
when indictment alleged that the defendant hit the victim and twisted
her arm “with his hand” and evidence showed that the defendant
threw the victim against a wall); Thomas, 303 S.W.3d at 333 (holding
that variance in the manner and means alleged—striking the victim
with the defendant’s hand—and the actual manner and means
used—pushing the victim—was immaterial); Botello v. State, No. 08-
04-00127-CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso Aug.
25, 2005, pet. ref’d) (not designated for publication) (holding that
variance in the manner and means alleged—striking the victim’s
head against a door frame—and the actual manner and means
used—pushing the victim—was immaterial); Phelps, 999 S.W.2d at
518 (holding that the fact that the State did not present evidence of
the manner and means alleged—striking the victim in the head with
the defendant’s hand—was immaterial where the hypothetically
correct jury charge would not have included the descriptive phrase
“with his hand”).
Id. (emphasis added) (footnote omitted); see also Dawson v. State, No. 08-11-
00203-CR, 2013 WL 4017433, at *4 (Tex. App.—El Paso Aug. 7, 2013, no pet.)
(not designated for publication) (“Several courts including this one have held that
the manner and means of an assault offense is not an essential element of the
offense and as a result, need not be included in the hypothetically correct jury
charge.”); Dunn v. State, No. 05-10-00196-CR, 2011 WL 227715, at *2 (Tex.
App.—Dallas Jan. 26, 2011, pet. ref’d) (not designated for publication)
(concluding that the evidence was sufficient to uphold the defendant’s conviction
even though the proof at trial did not show that the defendant struck the
complainant specifically with his hand or fist—as the indictment alleged—
6
because the manner and means of causing bodily injury are not essential
elements of assault).6
Relying on the cases cited above, we conclude that any variance between
the indictment and the proof in this case concerning striking Officer Tamayo’s
person or only his car is immaterial because the manner and means of causing
bodily injury in an assault is disregarded in a hypothetically correct jury charge.
See Thomas, 444 S.W.3d at 8; Johnson, 364 S.W.3d at 298; Guzman, 2015 WL
6664471, at *5. Comparing the elements of aggravated assault as defined by the
hypothetically correct jury charge to the evidence adduced at trial, we conclude
that a rational jury could have found the elements beyond a reasonable doubt.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Thomas, 444 S.W.3d at 8. We
overrule appellant’s first two points.
Deadly weapon
In his third point, appellant argues that the evidence is insufficient to prove
beyond a reasonable doubt that his truck qualified as a deadly weapon by its use
or intended use. He contends that he hit Officer Tamayo’s vehicle “by accident.”
6
Appellant cites a case from the court of criminal appeals for the
proposition that when the “State alleges a particular manner and means of the
commission of an offense in the indictment, . . . the State must prove it as alleged
though needlessly pleaded.” But the case that appellant cites does not support
the proposition. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App.
2001) (holding that allegations “giving rise to immaterial variances may be
disregarded in the hypothetically correct charge”); see also Alston v. State, 175
S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.) (recognizing that in Gollihar,
the court overruled the surplusage rule, including the “needlessly pleaded”
exception to that rule).
7
The penal code’s definition of “[d]eadly weapon” includes “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) (West Supp. 2016). A
motor vehicle is not a deadly weapon per se, but it may become one if its manner
of use is capable of causing death or serious bodily injury. Brister v. State, 449
S.W.3d 490, 494 (Tex. Crim. App. 2014); see Cates v. State, 102 S.W.3d 735,
738 (Tex. Crim. App. 2003) (“An automobile can be a deadly weapon if it is
driven so as to endanger lives.”). Specific intent to use a motor vehicle as a
deadly weapon is not required. Daniel v. State, 478 S.W.3d 773, 780 (Tex.
App.—Fort Worth 2015, no pet.).
The jury heard testimony establishing that shortly after three police officers
in separate vehicles began following appellant’s truck, appellant, while carrying
two passengers, sped out of a convenience store parking lot and onto a road.
Once appellant was driving on the road at a high speed, with Officer Tamayo
following directly behind him, he jerked his truck back and forth and then
slammed on his brakes, which required Officer Tamayo to swerve toward the
truck’s passenger side to avoid colliding with it. Appellant increased his speed to
get ahead of Officer Tamayo again, and appellant again began jerking the truck
side to side. Eventually, appellant crossed into a grassy median, and Officer
Tamayo followed him. While in the median, appellant’s truck clipped the front of
Officer Tamayo’s car but did not disable it.
8
Appellant drove off of the median and back onto the road, and shortly
thereafter, he “ram[med]” the side of Officer Tamayo’s car, running it off the road.
All of the airbags in Officer Tamayo’s car deployed, and his car was disabled. He
suffered pain in his left arm, left shoulder, and face. Shortly thereafter, appellant
lost control of the truck and crashed into a brick wall bordering a home’s back
yard. Most of the brick wall was destroyed where appellant collided with it. Two
officers involved in the case, including Officer Tamayo, testified that appellant’s
ramming of Officer Tamayo’s car appeared to be deliberate.
Viewing this evidence in the light most favorable to the jury’s verdicts, we
conclude that it is sufficient to show that appellant’s truck qualified as a deadly
weapon by his use and intended use of it. See Tex. Penal Code Ann.
§ 1.07(a)(17)(B); Cates, 102 S.W.3d at 738; Daniel, 478 S.W.3d at 780; see also
Drichas v. State, 175 S.W.3d 795, 797–98 (Tex. Crim. App. 2005) (holding that a
defendant’s truck qualified as a deadly weapon when he recklessly pulled out of
a gas station parking lot, cut off a police officer and required the officer to slam
on brakes to avoid a collision, fishtailed, and failed to control the truck); Cook v.
State, 328 S.W.3d 95, 100 (Tex. App.—Fort Worth 2010, pet. ref’d) (stating that
in determining whether an automobile qualifies as a deadly weapon, we may
consider whether the defendant sped, drove erratically, and failed to control the
automobile). We overrule appellant’s third point.
9
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DAUPHINOT, J., dissents without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2016
10