                             NUMBER 13-12-00118-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

BENJAMIN IBARRA,                                                             Appellant,


                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                     On appeal from the 24th District Court
                             of Victoria County, Texas.


                         MEMORANDUM OPINION
                Before Justices Garza, Benavides and Perkes
                  Memorandum Opinion by Justice Garza
       A jury found appellant, Benjamin Ibarra, guilty of two counts of aggravated

assault, see TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011), and one count of

endangering a child, see id. § 22.041(c), (f), arising out of a vehicular collision on March
14, 2011 (counts one, two, and three), and one count of aggravated assault and one

count of endangering a child arising out of a vehicular collision on March 28, 2011

(counts four and five), see id. §§ 22.02(a)(2), 22.041(c), (f). The jury found that a

deadly weapon, a motor vehicle, was used in each count.           See id. §§ 22.02(a)(2);

12.35(c)(1) (West Supp. 2011) (elevating state jail felony to third-degree felony if deadly

weapon used or exhibited during commission of offense).              The jury assessed

punishment at eight years’ imprisonment and a $1,000 fine in counts one, two, and four,

and ten years’ imprisonment and a $1,000 fine in counts three and five, with the

sentences in counts three and five suspended and appellant placed on community

supervision for ten years. The sentences were ordered to run concurrently. Appellant

contends that: (1) the trial court erred in permitting a State witness to testify as an

expert witness; and (2) the evidence is insufficient that he used or exhibited a deadly

weapon in any of the charged counts. We affirm.

                                     I. BACKGROUND

      We have summarized the following relevant testimony.

   A. Monica Peña

      Monica Peña testified that on March 14, 2011, she was driving along Port Lavaca

Highway in Victoria, Texas.       Monica’s passengers included her cousin, Sandra

Arenivas, and Monica’s two-and-a-half-year-old daughter, Delisa, who was riding in a

car seat in the back seat. Monica saw appellant, a former boyfriend, drive up behind

her in his father’s truck. Monica was driving about forty miles per hour when appellant

pulled up and rammed her vehicle from behind. Appellant then passed her on the left,

pulled in front of her, reversed, and rammed the front of her vehicle. Monica’s vehicle



                                            2
started spewing water and smoke and was damaged to the extent that she could not

drive it home.   She managed to drive to her father’s house, called the police, and

reported the incident.

   B. Sandra Arenivas

       Sandra testified that she was riding in the front passenger seat of Monica’s

vehicle when the vehicle was struck from the rear. She saw appellant’s maroon truck

passing Monica’s vehicle.     Appellant sped up, pulled in front of Monica’s vehicle,

reversed, and rammed Monica’s vehicle from the front. Appellant drove off after the

collision.   Sandra testified she was “scared” because they could have been hurt.

Sandra experienced back pain from the collision, but did not seek treatment because

she did not have health insurance.

   C. Daniel Torres

       Daniel Torres, a senior patrol officer with the Victoria Police Department, testified

that on March 14, 2011, he responded to a call regarding the vehicular assault.

According to Officer Torres, Monica was crying and upset and Sandra was distraught.

Monica reported that appellant had rammed her vehicle with his truck. Monica told

Officer Torres that the truck appellant was driving belonged to one of his family

members who lived nearby. After Monica described the truck and gave the address of

the family member, Officer Torres located the truck parked at a nearby residence.

There was a rag on the truck’s bumper, which was partially clean and partially dirty; the

paint on the letters and numbers on the license plate was smeared. The hood of the

truck was warm, suggesting that it had recently been driven. Officer Torres took several

photographs of the truck. Officer Torres testified that the damage to the truck’s license



                                             3
plate was consistent with paint transfer on Monica’s vehicle. Officer Torres testified that

based on his experience, a person can experience serious bodily injury or death as a

result of driving a vehicle that is rammed from the front or rear by a vehicle traveling at

thirty-five to forty miles per hour. According to Officer Torres, Sandra was holding her

back and complaining of back pain.

       On cross-examination, Officer Torres said he contacted appellant’s cousin, who

said that the truck did not have a battery and had not been driven in a couple of weeks.

Officer Torres did not believe appellant’s cousin.         Officer Torres noticed fresh

fingerprints on the truck’s hood consistent with someone closing the truck’s hood.

   D. Jeff Hobbs

       Jeff Hobbs, a detective with the Victoria Police Department, testified that he was

assigned to investigate the March 14, 2011 aggravated assault.             Officer Hobbs

inspected the maroon truck on April 11, 2011. He noticed that the truck’s license plates

were scratched. According to Officer Hobbs, the scratches on the truck were consistent

with markings on Monica’s vehicle. Officer Hobbs testified that serious bodily injury or

death could occur to occupants of a vehicle that was rammed from the front or rear by

another vehicle at forty miles per hour. While investigating this case, Officer Hobbs

learned that appellant was also accused of similar conduct—using his vehicle to harm

someone—involving a different victim.

   E. Nicholas Garcia

       Garcia testified that he was an eighteen-year-old high school senior at the time of

trial. Garcia stated that he and his little brother, Teodoro Candia (“Teo”), drove to a

convenience store on March 28, 2011.         Although Garcia does not have a driver’s



                                            4
license, his mother gave him permission to drive the family’s Suburban to the nearby

store. After Garcia and Teo left the convenience store, Garcia saw appellant standing

in the middle of the street; Garcia had to swerve to avoid hitting him. Garcia said he

avoids appellant because they have had problems in the past. A short while later,

stopped at a red light, Garcia noticed appellant in his truck. Appellant sped up, ran a

red light, and rammed into Garcia’s Suburban from the rear. Garcia was driving about

thirty miles per hour when appellant’s truck rammed the Suburban from the rear a

second time; the second impact was even harder than the first. Garcia sped up to get

away because he was afraid Teo would get hurt.             Appellant then passed Garcia’s

Suburban on the right, cut in front, and slammed on his brakes. Garcia tried to swerve

or stop, but could not avoid hitting appellant’s truck. Appellant did not stop; Garcia

drove home and called the police to report the incident.

   F. Teodoro Candia

        Teo, Garcia’s fifteen-year-old brother, gave very similar testimony regarding the

events of March 28, 2011. After Garcia and Teo left the convenience store in the

Suburban, Teo saw appellant standing in the road. Appellant threw up his hands in a

threatening manner, and Garcia swerved to avoid hitting him. Appellant then followed

them in his truck and struck the Suburban from the rear a couple of times. Teo stated

that the impact hurt his neck a little. Appellant pulled his truck in front and slammed on

the brakes, causing the Suburban to rear-end the truck. Teo testified that during the

incident, he was scared of getting hurt.

   G.    Jerry Sepulveda

        Sepulveda, an officer with the Victoria Police Department, testified that he



                                            5
investigated the March 28, 2011 incident. Officer Sepulveda spoke to Garcia and Teo

and took pictures of the Suburban the night of the incident. Officer Sepulveda observed

maroon transfer paint (the color of appellant’s truck) on the front of the Suburban, which

had been damaged. Officer Sepulveda testified that a vehicle ramming another vehicle

from the rear is likely to cause serious bodily injury or death. He also stated that a

vehicle that pulls in front of another vehicle and causes a rear-end collision by slamming

on its brakes can cause serious bodily injury or death.

   H. John Swenson

        Swenson, an officer with the Victoria Police Department, testified that he took

several photographs of damage and transfer paint on appellant’s truck. While he was

taking the photographs, appellant and another male approached him. Appellant was

verbally aggressive, and Officer Swenson was concerned for his safety.

   I.   Clay Fetters

        Fetters, a detective with the Victoria Police Department, took statements from

Garcia and Teo regarding the March 28, 2011 incident. Officer Fetters observed front

and rear-end damage to Garcia’s Suburban and saw that it had maroon paint markings

consistent with the color of appellant’s truck.

   J. Fabian Treviño

        The State presented the testimony of Fabian Treviño as an expert witness.

Appellant’s counsel objected, and the trial court held a hearing outside the presence of

the jury to determine if Treviño would be allowed to testify as an expert witness. At the

conclusion of the hearing, the trial court overruled appellant’s objection and permitted

Treviño to testify.



                                              6
       Treviño testified that he has worked in the automotive business and has held

certifications in the field for seventeen years. Treviño has been doing estimating work

on vehicles for thirteen years, and prior to his present position, worked at a Ford

dealership for fifteen years.

       Treviño examined Monica’s Pontiac and Garcia’s Suburban involved in this case

and prepared body shop estimates on both vehicles. Treviño testified that the damage

to the license plate on appellant’s truck was consistent with transfer paint on the rear

bumper of the Pontiac, and damage to the Pontiac’s rear bumper was consistent with

being struck by appellant’s truck.     Treviño also testified that the damage to the

Suburban was consistent with the damage to appellant’s truck.

       The State rested, and the defense presented the following witnesses.

   K. Manuel Ibarra

       Manuel Ibarra testified that he is appellant’s father. He testified that he has

owned the Ford truck for about a year. He stated that the truck “cut[s] off” if driven at

speeds in excess of twenty or thirty miles per hour. According to Ibarra, he was not

home when the police came to photograph his truck, but the truck was not operable

because it did not have a battery.

       On cross-examination by the State, Ibarra said that his truck was once struck by

an unknown vehicle while parked at his house.

   L. Appellant

       Appellant testified that he and Monica were together for about a year, but he

ended the relationship. Appellant knew Sandra because he and Monica sometimes

gave her a ride. Appellant said he did not know Garcia or Teo. Appellant stated that



                                           7
the damage to the rear of Monica’s Pontiac occurred one day when she backed into the

maroon truck while it was parked. Appellant denied that he had ever driven the truck

and denied that he struck Monica’s Pontiac or Garcia’s Suburban with the truck.

                               II. EXPERT WITNESS TESTIMONY

       By his first issue, appellant contends the trial court abused its discretion in

allowing Trevino to testify as an expert witness regarding the cause of damage to the

vehicles involved in this case. Appellant argues that: (1) Trevino was not qualified to

give an opinion on damage causation and (2) his conclusions were not based on any

scientific principles. The State responds that: (1) Trevino was sufficiently experienced

and qualified to serve as an expert witness concerning causation of damage to the

vehicles; and (2) any error in admitting Trevino’s testimony was harmless because the

State presented overwhelming evidence of appellant’s guilt.

   A. Standard of Review and Applicable Law

       “Because the possible spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular case.”

Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006). “For this reason,

appellate courts rarely disturb the trial court's determination that a specific witness is or

is not qualified to testify as an expert.” Id. at 528.

       In explaining the requirements for admissibility of expert testimony, the Texas

Court of Criminal Appeals has stated:

       The Texas Rules of Evidence set out three separate conditions regarding
       admissibility of expert testimony.       First, Rule 104(a) requires that
       “[p]reliminary questions concerning the qualification of a person to be a
       witness . . . be determined by the court . . . .” Second, Rule 702 states: “If

                                               8
       scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise.” And
       third, Rules 401 and 402 render testimony admissible only if it “tend[s] to
       make the existence of any fact that is of consequence to the determination
       of the action more probable or less probable than it would be without the
       evidence.”

Vela v. State, 209 S.W.3d 128, 130–31 (Tex. Crim. App. 2006) (internal citations

omitted). These requirements compel a trial judge to make three separate inquiries—

(1) whether the witness is qualified; (2) whether the testimony is reliable; and (3)

whether the testimony is relevant. Id. at 131.

       In Rodgers, the court of criminal appeals noted that an appellate court should

consider three criteria when determining whether a trial court abused its discretion in

evaluating a witness’s qualifications as an expert:        (1) “is the field of expertise

complex?”; (2) “how conclusive is the expert’s opinion?”; and (3) “how central is the

area of expertise to the resolution of the lawsuit?” Id. (quoting Rodgers, 205 S.W.3d at

528). “If the expert evidence is close to the jury’s common understanding, the witness’s

qualifications are less important than when the evidence is well outside the jury’s own

experience.” Rodgers, 205 S.W.3d at 528.

       “[Q]ualification is a two-step inquiry.” Vela, 209 S.W.3d at 131. “A witness must

first have a sufficient background in a particular field, but a trial judge must then

determine whether that background ‘goes to the very matter on which [the witness] is to

give an opinion.’” Id.

   B. Discussion

       Here, the evidence adduced at the hearing established that Trevino had

seventeen years of experience in the automotive industry and thirteen years of

                                             9
experience as an estimator for damaged vehicles.                 He holds certifications as an

estimator. In performing damage estimates for vehicles, Trevino is frequently required

to determine whether damage to a vehicle is consistent with the owner’s description of

how the damage occurred. Thus, Trevino’s expertise “fits” with the subject matter at

issue:        whether the damages to Monica’s Pontiac and Garcia’s Suburban were

consistent with their accounts of how the damage occurred. See Vela, 209 S.W.3d at

133 (“The focus, then, is on the ‘fit’ between the subject matter at issue and the expert’s

familiarity therewith.”). Trevino testified that license paint transfer and damage to both

vehicles were consistent with the damage to appellant’s truck. Trevino’s testimony did

not involve a complex subject, but rather consisted of “matching up” paint transfer and

damages to the Pontiac and Suburban with damages to appellant’s truck.                           See

Rodgers, 205 S.W.3d at 528 (noting witness’s qualifications are less important if expert

evidence is close to the jury’s common understanding).                     The State introduced

photographs of the damage to the vehicles, and the jury could make its own

comparisons.1 We conclude that the trial court did not abuse its discretion in permitting

Trevino to testify as an expert witness. We overrule appellant’s first issue.

                                  III. DEADLY-WEAPON FINDING

          By his second and third issues, appellant contends the evidence was insufficient

to establish that he used or exhibited a deadly weapon in committing the aggravated

assault offenses (issue two) and in committing the endangering a child offenses (issue

three).

   A. Standard of Review and Applicable Law


          1
          The black-and-white photographs in the record before us are of poor quality. We presume that
the original photographs were of a higher quality.

                                                 10
       The Jackson standard “is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,

323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). Under the Jackson standard, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing

the Jackson standard as: “Considering all of the evidence in the light most favorable to

the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt”).

The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to

be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the fact-finder's

exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)).

We must resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point

directly and independently to the appellant’s guilt, so long as the cumulative effect of all

the incriminating facts are sufficient to support the conviction. Id.



                                             11
       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

       To determine whether the evidence supports a deadly-weapon finding in cases

involving motor vehicles, we conduct a two-part analysis. Foley v. State, 327 S.W.3d

907, 916 (Tex. App.—Corpus Christi 2010, pet. ref’d); Hilburn v. State, 312 S.W.3d 169,

177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250, 255

(Tex. Crim. App. 2009)). We first “evaluate the manner in which the defendant used the

motor vehicle during the felony” by determining whether the defendant's driving was

reckless or dangerous. Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at 916. We then

consider “whether, during the felony, the motor vehicle was capable of causing death or

serious bodily injury.” Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at 916 (citing

Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003); Drichas v. State, 219

S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref'd); Williams v. State, 946

S.W.2d 432, 435 (Tex. App.—Fort Worth 1997, pet. dism'd)).

B.     Discussion

       Appellant argues that there was no evidence he was intoxicated or speeding, or

that he disregarded traffic signs and signals or failed to control his vehicle. See Sierra,



                                            12
280 S.W.3d at 255–56 (noting that factors to consider in making reckless-or-dangerous

determination include: (1) intoxication; (2) speeding; (3) disregarding traffic signs and

signals; (4) driving erratically; and (5) failure to control the vehicle). He also asserts that

there is no evidence that his driving placed Monica or Garcia in any actual danger.

Appellant points to Garcia’s description of the rear-end impact as a “bump” and the fact

that there was no extensive body damage to either Monica’s Pontiac or Garcia’s

Suburban.

       With regard to the first part of the Sierra test—whether appellant’s driving was

reckless or dangerous—we reject appellant’s argument that he was not driving

recklessly or dangerously because he was not intoxicated or speeding. We conclude

that by intentionally ramming another vehicle, appellant was driving in a manner that

was reckless or dangerous. See Sierra, 280 S.W.3d at 255.

       Officers Torres, Hobbs, and Sepulveda each testified that the acts alleged by

appellant—intentionally ramming another vehicle from behind and pulling in front of a

vehicle and reversing to intentionally strike the vehicle behind—could subject the

occupants of the targeted vehicle to serious bodily injury or death. Appellant argues

that the officers’ testimony is “unreliable because it was not sufficiently tied to the facts

of this particular case.” We disagree.       Officers Torres and Hobbs investigated the

aggravated assault involving Monica’s vehicle.         Officer Sepulveda investigated the

aggravated assault involving Garcia’s vehicle. Each officer’s testimony was therefore

tied to the facts of the particular incident as described by the complainants. Moreover,

appellant did not object to any of the officers’ testimony on reliability grounds or any

other grounds, and has therefore waived any complaint regarding admissibility of the



                                              13
testimony. See TEX. R. APP. P. 33.1. Viewing the evidence in the light most favorable to

the verdict, we conclude that: (1) a rational trier of fact could have found beyond a

reasonable doubt that appellant used or exhibited his truck as a deadly weapon while

committing aggravated assault and endangering a child; and (2) the manner in which he

used his truck when committing aggravated assault and endangering a child was

capable of causing death or serious bodily injury. See Sierra, 280 S.W.3d at 255. We

overrule appellant’s second and third issues.

                                    IV. CONCLUSION

      We affirm the trial court’s judgment.


                                                   DORI CONTRERAS GARZA
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b)

Delivered and filed the
10th day of January, 2013.




                                              14
