                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00221-CR

JACOB RUFUS AMSPACHER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                          From the County Court at Law
                              Coryell County, Texas
                             Trial Court No. 08-58049


                                     OPINION


      Jacob Rufus Amspacher appeals a conviction by a jury for Illumination of

Aircraft by Intense Light.     TEX. PEN. CODE ANN. § 42.14 (Vernon Supp. 2008).

Amspacher contends that the evidence was factually insufficient for the jury to have

found him guilty and that the trial court erred in allowing testimony regarding his

conduct and statements when he was approached by law enforcement. Because we find

that the evidence was factually sufficient and that the trial court did not abuse its

discretion in the admission of evidence, we affirm the judgment of the trial court.
Factual Sufficiency

       In a factual sufficiency review, we view the evidence in a neutral light and ask

whether the evidence supporting the verdict is so weak or so against the great weight

and preponderance of the evidence as to render the verdict manifestly unjust. Steadman

v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Grotti v. State, 273 S.W.3d 273, 283

(Tex. Crim. App. 2008). Although a factual sufficiency review authorizes us, to a very

limited degree, to act as a “thirteenth juror,” we must nevertheless give the jury's

verdict a great degree of deference. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim.

App. 2006). The fact-finder alone determines what weight to place on contradictory

testimonial evidence because that determination depends on the fact-finder's evaluation

of credibility and demeanor. See TEX. CODE CRIM. PROC. ANN. art. 36.13 and 38.04

(stating that the jury is the exclusive judge of the facts and of the weight given to

testimony); Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We afford

almost complete deference to a jury's decision when that decision is based upon an

evaluation of credibility as the jury is in the best position to judge the credibility of a

witness because it is present to hear the testimony, as opposed to an appellate court

which relies on the cold record. Lancon, 253 S.W.3d at 705. See also Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006).

       A “high level of skepticism about the jury's verdict” is required before we may

reverse due to factual insufficiency. Watson, 204 S.W.3d at 417. We may not find the

evidence to be factually insufficient merely because there are “reasonably equal

competing theories of causation.” Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App.

Amspacher v. State                                                                   Page 2
2001). Further, a factual sufficiency reversal certainly may not occur when the evidence

actually preponderates in favor of conviction. Watson, 204 S.W.3d at 417.                  Before

reversing a conviction on the basis of factual insufficiency, we must detail all the

relevant evidence and must explain in exactly what manner the evidence is factually

insufficient. Watson, 204 S.W.3d at 414.

Illumination of Aircraft by Intense Light

       Section 42.14 of the Texas Penal Code became effective on September 1, 2007. No

other Court has discussed or construed this statute since its inception. It states in

relevant part as follows:

       (a)     A person commits an offense if:

           (1) the person intentionally directs a light from a laser pointer or other
         light source at an aircraft; and

           (2) the light has an intensity sufficient to impair the operator's ability to
         control the aircraft.

       ….

         (c) An offense under this section is a Class C misdemeanor unless the
         intensity of the light impairs the operator's ability to control the aircraft,
         in which event the offense is a Class A misdemeanor.

TEX. PEN. CODE ANN. §42.12 (Vernon Supp. 2008).

       Amspacher complains that the evidence was factually insufficient for the jury to

find that: (1) he was the person spotlighting the aircraft; (2) he intentionally pointed the

light at the aircraft; (3) the light was intense enough to impair the operator’s ability to

control the aircraft; (4) the operator’s ability to control the aircraft was impaired.




Amspacher v. State                                                                         Page 3
The Facts

       At night on April 1, 2008, a pilot and his trainee were flying an Apache helicopter

over the west side of Fort Hood, Texas, when they received a call that another aircraft

was being spotlighted. The pilot flew toward Pidcoke, Texas, when he and his trainee

noticed that they were being spotlighted as well. The pilot had an infrared sight device

over his right eye and his left eye was unobstructed. The pilot and his trainee were able

to fix their infrared sensors on the location of the spotlight and the person in the area.

The pilot believed that he may have seen the person go behind his residence, but was

not certain of this.   The pilot and his trainee maintained that location until law

enforcement arrived in Pidcoke, and then they directed the trooper to the location from

where they had seen the spotlight originating.

       The pilot stated that the light caused “flash blindness,” which impaired his night

vision. The incident with the spotlighting caused the pilot and his trainee to abandon

their mission. While the pilot did not at any time lose control of the helicopter and was

in no danger of crashing, he stated that the light did interfere with his ability to observe

his surroundings and to fly safely. For example, the pilot stated he was unable to see

wires and lights of towers as well as any other aircraft potentially in the area, which

created an unsafe situation.

       The trooper that first arrived at Amspacher’s residence also observed that a

spotlight was shone on an aircraft as he was responding to the call. The spotlight went

off, and the trooper did not see it again. He could not tell if the spotlight originated

from the east or west side of FM 116. Upon his arrival, the trooper found Amspacher

Amspacher v. State                                                                    Page 4
yelling at the helicopter with a camcorder pointed at it. The trooper did not search

Amspacher and did not locate a spotlight; however, Amspacher was the only person at

the scene. Amspacher refused to identify himself or produce identification.

       A Coryell County deputy and a reserve deputy arrived and found Amspacher to

be aggressive and irritated. He was swearing and talking about how he was not in Nazi

Germany, referenced the Gestapo, and that he was not in Russia. The reserve deputy

heard Amspacher stating that he was upset that the Army could fly over his property,

shine lights, and make noise. There were two other deputies that arrived and none of

them located a spotlight that night. Fort Hood then let them know that they would not

be coming to arrest Amspacher, and so the deputies departed without arresting

Amspacher at that time.

Identity

       We cannot say that the evidence is factually insufficient to find Amspacher guilty

of being the person who illuminated the aircraft. The pilot of the Apache stated that he

and his trainee were able to stay focused on their target, who was the person shining

the spotlight. The pilot was able to lead law enforcement to the source of the light,

which was where Amspacher was located. There was no one else at the location with

Amspacher. There was a break in-between when the spotlight was extinguished and

the arrival of law enforcement. There was no spotlight located at the scene. When

Amspacher was located by law enforcement, he was using a camcorder and was visibly

and verbally angry. Amspacher made comments that he was upset about the military




Amspacher v. State                                                                 Page 5
flying over his residence. The jury, as the factfinder, was able to observe the credibility

of the witnesses and determined that Amspacher did indeed illuminate the helicopter.

Intent

         Amspacher contends that the evidence was also factually insufficient to find that

he intentionally illuminated the aircraft. The relevant evidence of intent according to

Amspacher was his comments regarding his hostility to the military flying over or near

his residence, his general demeanor of being angry and swearing, his refusal to identify

himself to law enforcement upon request, and that he was using a camcorder late at

night in a location where it was dark presumably to videotape the Apache’s flight.

Amspacher contends that the jury could have inferred from the possession and use of

the camcorder that he was reacting to the presence of the helicopter and gathering

evidence for a later complaint to the Army. However, we may not find the evidence

factually insufficient simply because there may be competing theories of causation.

Goodman, 66 S.W.3d at 287.        This contention does not give us a “high degree of

skepticism” about the jury’s verdict regarding Amspacher’s intent to illuminate the

aircraft. See Watson, 204 S.W.3d at 417.

Intensity

         Amspacher contends that because no expert testimony was offered regarding the

actual intensity of the light that the evidence is factually insufficient for the jury’s

finding that the intensity of the light was sufficient to impair the operator’s ability to

control the aircraft. We do not agree that expert testimony is required to determine that

the light was intense enough to impair the operator’s ability to control the aircraft. Lay

Amspacher v. State                                                                   Page 6
witnesses are allowed to give opinions that are: “(a) rationally based on the perception

of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” TEX. R. EVID. 701.

       Amspacher does not explain why he contends that expert testimony would be

necessary. Further, the trooper who observed the spotlight from afar testified that the

light was a concentrated, intense beam and was different from the light that was

shining down from the helicopter. The pilot, who had accumulated over 2,700 hours of

flight time in helicopters and airplanes and was a flight instructor for the military, also

testified that the light caused “bleaching out” of the rhodopsin in the eyes which affects

night vision and makes it difficult to see with the naked eye at night. We find this

evidence is factually sufficient for the jury to have found that the light was intense

enough to impair the operator’s ability to control the aircraft.

Impairment and Ability to Control

       Amspacher contends that the evidence was factually insufficient for the jury to

determine that the pilot was actually impaired and also that any impairment affected

his ability to control the helicopter. In order to decide this issue we must first determine

what is meant by the language used in the statute. We must establish and apply the

legislature’s intent that is expressed by the language of the statute. State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006).

       To interpret the use of “impair” and “control” in section 42.14(a)(2), “we

necessarily focus our attention on the literal text of the statute.” Williams v. State, 270

S.W.3d 140, 146 (Tex. Crim. App. 2008) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Amspacher v. State                                                                    Page 7
Crim. App. 1991)). Because “every word in a statute has been used for a purpose,”

“each word, phrase, clause, and sentence should be given effect if reasonably possible.”

Williams, 270 S.W.3d at 146 (citing State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App.

1997)). We “first attempt to interpret the statute based on the plain meaning of the

words used.” Williams, 270 S.W.3d at 146 (citing Olivas v. State, 203 S.W.3d 341, 345

(Tex. Crim. App. 2006)). When the statute does not define certain terms, we turn to the

common, ordinary meaning of that word. Id. Webster's Dictionary defines “impair” as:

“to damage or make worse by or as if by diminishing in some material respect.”

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 580 (10th Ed.). “Control” is defined as:

       1.(a) : to check, test, or verify by evidence or experiments;
         (b) : to incorporate suitable controls in;
       2.(a) : to exercise restraining or directing influence over : regulate;
         (b) : to have power over : rule; or
         (c) : to reduce the incidence or severity of especially to innocuous
               levels.

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 252 (10th Ed.).

       The pilot testified that the light did impair him.        When the helicopter was

illuminated, it became necessary to change what they were doing because it was such a

large distraction. In his statement to law enforcement near the time of the incident, the

pilot stated that although he did not feel the safety of his crew or his aircraft was in

danger, the light was bright enough that it impaired and affected normal flight

operations. The light came from the right side of the helicopter, which was the side on

which the pilot’s eye was obstructed.        However, the pilot testified that the light

interfered with his ability to spot other aircraft, wires, and towers because of its


Amspacher v. State                                                                 Page 8
interference with his night vision, which is necessary for him in obstacle detection. The

light did not interfere with keeping the aircraft from crashing, because the pilot had

been trained in how to deal with that issue. We find the evidence is factually sufficient

for the jury to have determined that the pilot was impaired.

       Section 42.14(a)(2) further requires that the operator’s ability to control the

aircraft be impaired. Amspacher argues that the fact that the pilot was not concerned

about crashing the aircraft renders the evidence factually insufficient.        We do not

believe that the plain language of the statute requires such a narrow interpretation. The

pilot’s ability to visually ensure that his surroundings are safe is a component of what is

necessary to control an aircraft. The pilot stated that the types of helicopters used by

the military are difficult to see by any means other than direct vision at night. Being

unable to see at night because of a bright light spotlighted on the aircraft certainly could

impair a pilot’s ability to control his aircraft. It is not necessary that the aircraft be in

immediate danger of crashing for the pilot’s ability to control the aircraft to be

impaired.

       Amspacher further contends that the pilot’s testimony was not clear in stating

that he was actually impaired, but only that the light could possibly have impaired his

ability to control the aircraft. The pilot stated that he looked away from the light

initially and that it became an annoyance more than anything. The light did cause the

pilot and his trainee to change what they were doing and how they were doing it. The

pilot reiterated several times that his training would ensure that he was not going to

crash the aircraft due to the spotlight, because he had been trained while in the military

Amspacher v. State                                                                     Page 9
for sudden bright flashes of light which could occur while in combat during a

deployment. The jury, as the fact-finder, was free to believe or disbelieve the testimony

regarding whether the pilot’s ability to control the aircraft was impaired. The evidence

was factually sufficient to sustain the jury’s finding of guilt. We overrule Amspacher’s

issue one.

Improper Admission of Evidence

       In his second issue, Amspacher complains of the admission of testimony by two

law enforcement officers regarding statements made by and the conduct and demeanor

of Amspacher when they approached him, apprehended him, and later released him.

Prior to the testimony of the first sheriff’s deputy, the trial court conducted a hearing on

the admissibility of the deputy’s testimony.      Amspacher objected to the testimony

pursuant to Texas Rules of Evidence 401 and 403. The trial court determined that the

testimony would be admissible for both deputies, although there was no testimony at

that hearing by the second deputy.

       When reviewing a trial court's ruling on the admission of evidence, we apply an

abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007). A trial court abuses its discretion when its decision lies outside the zone of

reasonable disagreement. Id.

       Texas Rule of Evidence 403 provides, "Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403.

Amspacher v. State                                                                   Page 10
       Although the Texas Rules of Evidence are intentionally slanted toward the

inclusion of all relevant evidence, Rule 403 gives the trial court considerable discretion

to exclude evidence when it appears to that individual judge, in the context of that

particular trial, to be insufficiently probative when measured against the countervailing

factors specified in the rule. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App.

2007); see Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on

orig. submission); 810 S.W.2d at 391-92 (op. on reh'g); Johnson v. State, 263 S.W.3d 405,

426-427 (Tex. App.—Waco 2008, pet. ref’d).

       In a Rule 403 analysis, a trial court must balance (1) the inherent probative force

of the proffered item of evidence along with (2) the proponent's need for that evidence

against (3) any tendency of the evidence to suggest decision on an improper basis, (4)

any tendency of the evidence to confuse or distract the jury from the main issues, (5)

any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006); see State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005);

Montgomery, 810 S.W.2d at 389-90 (op. on reh'g).        “The rule gives the trial court

considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of

the witness' testimony and its impact upon the jury, and to conduct the necessary

balancing.” Winegarner, 235 S.W.3d at 791.



Amspacher v. State                                                                 Page 11
Preservation of Error

       To preserve error, a party must object each time inadmissible evidence is offered

unless he (1) obtains a running objection, or (2) makes an objection outside the presence

of the jury to all the testimony he deems objectionable. Martinez v. State, 98 S.W.3d 189,

193 (Tex. Crim. App. 2003); see TEX. R. APP. P. 33.1. Any error in the admission of

evidence, however, is cured when the same evidence comes in elsewhere without

objection, either before or after the complained-of ruling. Lane v. State, 151 S.W.3d 188,

193 (Tex. Crim. App. 2004). A defendant who fails to preserve error regarding the

evidence's admissibility forfeits his complaint on appeal. Badall v. State, 216 S.W.3d 865,

867 (Tex. App.—Beaumont 2007, pet. ref'd). However, when the court, out of the jury's

presence, hears and overrules objections to evidence, the complaining party is not

required to object again before the jury in order to preserve error. TEX. R. EVID. 103(a);

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

       The State contends that Amspacher waived his right to complain about the

testimony of the deputies because he did not object when the second deputy testified

and because he did not object when the trooper testified. The trooper testified that

Amspacher was yelling at the helicopter and when approached by the trooper, he

refused to identify himself or provide identification because he was not in Nazi

Germany. This testimony was not objected to at any time. Therefore, any complaints

regarding this or similar testimony that was admitted through other witnesses is

waived. See Lane, 151 S.W.3d at 193. However, the testimony regarding Amspacher’s



Amspacher v. State                                                                  Page 12
anger and hostility, both in general and toward the military, his use of foul language,

and references to Russia were not part of the testimony of the trooper.

       Amspacher did object to the testimony of the two deputies at the hearing

conducted outside of the presence of the jury based on Rule 403. He objected again

during the testimony of the first deputy, but did not request a running objection, and

did not object at all during the second deputy’s testimony. However, we find that his

objection in the hearing outside of the presence of the jury was sufficient to preserve

error. See Ethington, 819 S.W.2d at 858.

       The term “probative value” refers to the inherent probative force of an item of

evidence -- that is, how strongly it serves to make more or less probable the existence of

a fact of consequence to the litigation -- coupled with the proponent's need for that item

of evidence. Gigliobianco, 210 S.W.3d at 241. In Montgomery v. State, 810 S.W.2d 372, 390

(Tex. Crim. App. 1990) (op. on reh'g), the Court of Criminal Appeals stated that “[w]hen

the proponent [of an item of evidence] has other compelling or undisputed evidence to

establish the proposition or fact that the [item of evidence] goes to prove, the [probative

value of the item of evidence] will weigh far less than it otherwise might in the

probative-versus-prejudicial balance.”

       The demeanor and language used by Amspacher makes it more likely that he

intended to spotlight the aircraft in that he was angry with the military and was

attempting to videotape the helicopter, as opposed to potentially an inadvertent act.

The State’s need for this evidence was fairly substantial in providing evidence of intent

and motive.

Amspacher v. State                                                                  Page 13
       The fact that Amspacher used foul language, was critical of the Army and law

enforcement, and mentioned Russia in the midst of his tirade might tend to suggest

decision on an improper basis, however, we believe any such tendency to be slight. We

do not believe that the evidence tended to confuse or distract the jury from the main

issues or that the jury was not equipped to evaluate the probative force of the evidence,

and Amspacher has not demonstrated otherwise. Additionally, the presentation of the

evidence was very slight in relation to the rest of the trial.     When reviewing the

evidence, we cannot say that the trial court’s decision that the probative value

outweighed any unfair prejudice was outside of the zone of reasonable disagreement.

We overrule Amspacher’s second issue.

Conclusion

       We find that the evidence was factually sufficient to support the conviction. We

find that the trial court did not abuse its discretion in the admission of evidence

pursuant to Rule 403. We affirm the judgment of the trial court.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 30, 2009
Publish
[CR25]




Amspacher v. State                                                                Page 14
