Gonzalez v. State

VICTOR ORTIZ GONZALEZ, Appellant v. THE STATE OF TEXAS

No. 02-18-00179-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

May 9, 2019

On Appeal from the 432nd District Court Tarrant County, Texas

Trial Court No. 1497894D

Before Gabriel, Kerr, and Pittman, JJ.

Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellant Victor Ortiz Gonzalez appeals from his convictions for aggravated assault against a public servant and for evading arrest or detention. He argues that his aggravated-assault conviction was supported by insufficient evidence and that the jury charge egregiously harmed him because it instructed the jury on a culpable mental state that was not alleged in the indictment. Finally, Appellant asserts that his $10,000 fine assessed for evading arrest must run concurrently with the $10,000 fine assessed for assault; thus, the order to withdraw funds incorporated into the evading judgment may only authorize withdrawal of one of the fines, not both. We conclude that the jury-charge error egregiously harmed Appellant and reverse the aggravated-assault judgment for further proceedings. Based on this holding we need not address Appellant's fine complaint, and we affirm the trial court's judgment convicting Appellant of evading arrest or detention.

I. BACKGROUND

A. THE OFFENSES

Officers Taylor Rogers and Craig Chambers were dispatched to locate a vehicle that had stolen merchandise inside. The merchandise, which was equipped with a tracking device, had been placed in a "bait" car by the police and then was stolen.¹ Rogers and Chambers quickly located the vehicle—a yellow Hummer—based on themerchandise's tracking device. After seeing the Hummer roll through a stop sign, Chambers turned on the patrol car's roof lights and initiated a traffic stop. The Hummer accelerated, "dust flying," after turning into an apartment complex's parking lot. One person in the parking lot had to run to get away from the Hummer. Chambers, who was driving the patrol car, sped after the Hummer. The Hummer sped to a locked gate and stopped. Chambers drove the patrol car to the driver's side of the Hummer, stopping the front of the patrol car close to and even with the Hummer's front bumper to keep the driver from getting out of the Hummer. Another officer, Kendall Harris, drove his patrol car close to and even with the passenger side of the Hummer. Harris saw Rogers put his right leg outside his patrol car to get out. The Hummer accelerated and began to reverse, pinning Rogers between the patrol car and the Hummer. Chambers yelled to alert Rogers that the Hummer was moving. Before Rogers could react, the driver of the Hummer looked in the rearview mirror, continued to accelerate, and reversed away from both patrol cars, damaging both. While the Hummer was reversing, Rogers can be heard on the dashboard video saying, "Ow, my leg." The Hummer also hit "several" other cars in the complex parking lot. Chambers and Rogers ran after the Hummer, but had to stop after Rogers's leg, elbow, and chest pain became severe. Harris saw the Hummer crash into a structure and saw the driver run away.

Fingerprints from the Hummer were matched to Appellant. Rogers was able to identify Appellant from a photo array as the driver of the Hummer. After awarrant was issued, Appellant was arrested. The investigating detective interviewed Appellant, and after first denying any involvement, Appellant admitted he was the driver of the Hummer. He also admitted that "he knew exactly where the officers' cars were at and that they were police officers behind him and around him, especially when he put . . . the Hummer into reverse." When the investigating detective told Appellant that an officer had been hurt after Appellant pinned him between the patrol car and the Hummer, Appellant cried.

B. INDICTMENT AND TRIAL

Appellant was indicted with the first-degree felony of aggravated assault of a public servant with a deadly weapon—the Hummer—and with the third-degree felony of evading arrest or detention with a vehicle—again, the Hummer.² See Tex. Penal Code Ann. §§ 22.02, 38.04 The indictment alleged that Appellant used the Hummer as a deadly weapon and contained a repeat-offender notice, alleging that Appellant had been convicted in 2005 of possessing one gram or more but less than four grams of methamphetamine—a third-degree felony. See id. § 12.42(a), (c)(1); Tex. Health & Safety Code Ann. § 481.115(c).

A jury found Appellant guilty of aggravated assault of a public servant with a deadly weapon, found Appellant guilty of evading arrest or detention, found that the deadly-weapon allegation regarding evading arrest or detention had been provedbeyond a reasonable doubt, found that the repeat-offender notice was true,³ and assessed his punishment at 45 years' confinement for assault and at 20 years' confinement for evading arrest or detention. The jury also assessed a $10,000 fine for each offense. The trial court entered judgments in accordance with the jury's verdicts, ordering the sentences to run concurrently. See Tex. Penal Code Ann. § 3.03(a). The incorporated order to withdraw funds authorized withdrawals from Gonzalez's inmate trust account for "[c]ourt costs, fees and/or fines and/or restitution . . . in the amount of $20,319."⁴

Appellant filed a motion for new trial, arguing that "the verdict is contrary to the law and the evidence." See Tex. R. App. P. 21.3(h). The motion was deemed denied. See Tex. R. App. P. 21.8(c).

II. SUFFICIENCY OF THE EVIDENCE: AGGRAVATED ASSAULT

In his second point, Appellant argues that the evidence was insufficient to support a finding that he intentionally or knowingly committed aggravated assault. Appellant was charged with the intentional or knowing aggravated assault on a public servant—Rogers—while using a deadly weapon, which is a result-oriented offense. See Tex. Penal Code Ann. § 22.02(a), (b)(2)(B); Shelby v. State, 448 S.W.3d 431, 439(Tex. Crim. App. 2014). A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result. See Tex. Penal Code Ann. § 6.03(a). A person acts knowingly with respect to his conduct's result if he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b). Appellant argues that even if Rogers's attempt to get out of the patrol car was obvious, no evidence shows Appellant "either intended to cause bodily injury or knew his actions were likely to result in bodily injury to . . . Rogers." Appellant asserts that his obvious intent was to escape, not to injure Rogers. And he posits that it may be reasonably inferred from the evidence that he could not have expected Rogers to get out of the patrol car and was not aware that Rogers had been pinned between the patrol car and the Hummer.

In our due-process review of the sufficiency of the evidence to support Appellant's aggravated-assault 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 elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact—here, the jury—is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, we may not substitute our judgment for the jury's by re-evaluating those implicit findings. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences arereasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). We must presume that the jury resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49; see Blea, 483 S.W.3d at 33.

Appellant admitted that he drove the Hummer and that he did not pull over when the patrol car tried to pull him over. Instead, he drove through the complex's parking lot at a high rate of speed to avoid arrest or detention and when he reached a dead end, he put his car in reverse and accelerated into both patrol cars that had tried to block him in. Appellant acknowledged that he knew the cars were police cars and that they were on either side of the Hummer when he reversed into them. Rogers was pinned between his patrol car and the Hummer, injuring his right leg, his right elbow, and his chest, which required medical treatment. When Appellant began to accelerate away, Rogers can be heard on the dashboard video saying that his leg was hurt. After crashing the Hummer, Appellant admitted he jumped out and ran away.

This evidence, viewed in the light most favorable to the verdict, allowed the jury to rationally infer that it was Appellant's conscious objective or desire to cause the result or that he was aware that his conduct was reasonably certain to cause the result. See, e.g., Onyinyechi v. State, No. 01-16-00551-CR, 2017 WL 3027665, at *3-4 (Tex. App.—Houston [1st Dist.] July 18, 2017, pet. ref'd) (mem. op., not designated for publication); Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3-5 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, pet. ref'd) (mem. op., not designatedfor publication); Mayfield v. State, Nos. 09-07-005 CR, 09-07-006 CR, 09-07-007 CR, 2008 WL 4936889, at *4-5 (Tex. App.—Beaumont Nov. 19, 2008, no pet.) (mem. op., not designated for publication). Contrary to Appellant's arguments, we cannot credit inferences that the jury obviously did not nor can we ignore inferences that the jury implicitly drew. See Murray, 457 S.W.3d at 448-49; see also Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (recognizing jury may infer intent from defendant's words, acts, and conduct). A rational fact-finder could have found...