Opinion filed August 23, 2018




                                      In The


          Eleventh Court of Appeals
                                    ___________

                                No. 11-16-00219-CR
                                    ___________

                   CATARINO YBARRA JR., Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR46737


                      MEMORANDUM OPINION
      Catarino Ybarra Jr. was charged by indictment with aggravated assault of a
public servant by using a deadly weapon and evading arrest with a motor vehicle.
He pleaded guilty to the charge of evading arrest. The jury convicted him of
aggravated assault on a public servant and assessed his punishment at confinement
for thirty-six years in the Institutional Division of the Texas Department of Criminal
Justice. In a single issue on appeal, Appellant asserts that the evidence is legally
insufficient to support his conviction for aggravated assault on a public servant. We
affirm.
      On February 25, 2016, Officer Derrick Whitefield of the Midland Police
Department pursued Appellant through the city of Midland in his police vehicle after
Appellant shoplifted items from a Kohl’s in Midland.            The pursuit lasted
approximately fifteen minutes and covered more than eight miles. At one point
during the pursuit, Appellant drove through a residential neighborhood on Joy Drive.
He then made a left turn onto Pleasant Court and then another immediate left turn
onto Pleasant Drive.
      Sergeant Michael Chandler was in his patrol vehicle, parked on the left side
(from Appellant’s point of view) of Pleasant Drive. After Appellant turned onto that
street, he headed straight toward Sergeant Chandler’s vehicle and swerved away at
the last second, barely avoiding a collision. Officer Whitefield testified that there
were no obstacles in the road that would have caused Appellant to swerve toward
Sergeant Chandler’s vehicle. In Officer Whitefield’s opinion, if Appellant had
collided with Sergeant Chandler’s vehicle, it would have caused bodily injury to
Sergeant Chandler. Officer Whitefield further testified that Appellant did not lose
control of his vehicle, but Officer Whitefield acknowledged that Appellant was
driving recklessly throughout the pursuit.
      Sergeant Chandler testified that he drove to Pleasant Drive in order to deploy
“stop sticks” onto the road in an attempt to deflate Appellant’s tires. However, as
Sergeant Chandler put his vehicle in park, he immediately noticed Appellant coming
around the corner toward him. Sergeant Chandler remained in his vehicle and braced
himself for impact, but Appellant avoided colliding with him at the last instant.
Sergeant Chandler testified that there were no obstructions that would cause
Appellant to swerve toward him and that he did not have the opportunity to place
the stop sticks on the road. Sergeant Chandler believed that Appellant was going to
hit him and that he would have been injured if impact had occurred.


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      We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      To sustain a conviction for aggravated assault of a public servant by threat,
the evidence must demonstrate that (1) the person intentionally or knowingly
threatened another with imminent bodily injury, (2) the person used or exhibited a
deadly weapon during the commission of the assault, and (3) the offense was
committed against a person the actor knew was a public servant while the public
servant was lawfully discharging an official duty. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007) (citing TEX. PENAL CODE ANN. §§ 22.01(a)(2),
22.02(a)(2), (b)(2)(B)). The indictment charged that Appellant intentionally and
knowingly threatened Sergeant Chandler with imminent bodily injury and that he
used and exhibited a deadly weapon in the form of an automobile during the
commission of the assault on a public servant who was discharging an official duty.
      Appellant contends that there is insufficient evidence to support his conviction
because (1) there is insufficient evidence that Appellant acted with knowledge or
intent and (2) there is insufficient evidence that Appellant exhibited or used a deadly
weapon.    A defendant’s intent or knowledge is a question of fact, which is
determined from the totality of the circumstances. Smith v. State, 965 S.W.2d 509,
518 (Tex. Crim. App. 1998); Dobbins v. State, 228 S.W.3d 761, 764 (Tex. App.—
Houston [14th Dist.] 2007, pet. dism’d). “A person acts intentionally, or with intent,
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with respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result.” PENAL
§ 6.03(a) (West 2011). “A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist.” Id. § 6.03(b).
      Threats may be communicated by action, conduct, or words. McGowan v.
State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). The jury may infer intent or
knowledge from the accused’s acts, words, and conduct at the time of the offense.
See Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982). The
State can prove a defendant’s knowledge or intent without evidence of threatening
language or gestures, and the jury may infer the existence of either mental state from
any facts tending to prove its existence, including the defendant’s acts, words, and
conduct. Dobbins, 228 S.W.3d at 765.
      Sergeant Chandler arrived at Pleasant Drive shortly before Appellant turned
onto Pleasant Drive. Arriving from the opposite direction, Sergeant Chandler pulled
over to the left-side curb of Pleasant Drive (from Appellant’s point of view) in order
to get out of his vehicle to deploy the stop sticks. There were at least three car-
widths to the right of Sergeant Chandler’s patrol car because there were not any cars
parked on the right-side curb. Despite the ample amount of space for Appellant to
drive around the right side of Sergeant Chandler’s patrol car, Appellant drove
straight at Sergeant Chandler’s patrol car on the left side of Pleasant Drive before
whipping over immediately prior to the point of impact.
      Viewing the evidence in a light most favorable to the verdict, we conclude
that a rational jury could reasonably infer from Appellant’s conduct that he
intentionally and knowingly threatened Sergeant Chandler by driving straight at
Sergeant Chandler’s patrol car when Appellant had at least three car-widths to drive
to the right of the patrol car. Even if Appellant did not intentionally threaten
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Sergeant Chandler by the use of his motor vehicle, the jury could infer that Appellant
was aware his conduct was reasonably certain to cause a threat of imminent bodily
injury because of the manner in which Appellant operated his automobile. See
Martinez v. State, No. 08-01-00358-CR, 2003 WL 21710757, at *5 (Tex. App.—
El Paso July 24, 2003, no pet.) (not designated for publication) (concluding that a
rational jury could reasonably infer from the defendant’s conduct that he
intentionally and knowingly threatened an officer by driving straight toward the
officer while the officer was standing approximately twenty feet in front of the
defendant’s vehicle and ordering the defendant to desist and that, even if the
defendant did not intentionally threaten the officer by use of his motor vehicle, the
jury could infer that the defendant was aware that his conduct was reasonably certain
to cause a threat of imminent bodily injury).
      With respect to the deadly weapon component of the offense, “[a]n
automobile is not ‘manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury[,]’ [b]ut it may, ‘in the manner of its use or
intended use [be] capable of causing death or serious bodily injury.’” Moore v. State,
520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (fourth alteration in original) (quoting
PENAL § 1.07(a)(17) (West Supp. 2017)). To justify a deadly weapon finding under
Section 1.07(a)(17)(B), the State need not establish that the use or intended use of
an implement actually caused death or serious bodily injury—only that “the manner”
in which it was either used or intended to be used was “capable” of causing death or
serious bodily injury. Id. (citing Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim.
App. 2008)).
      Evidence will support a deadly weapon determination with respect to the use
of an automobile if a rational factfinder could infer that the defendant was using his
motor vehicle in a manner that was capable of causing death or serious bodily injury,
even though it did not do so, and regardless of whether he intended it to. Id. at 913.
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The focus is on the question of actual danger to others versus “a hypothetical
potential for danger.” Id. at 909, 913 (quoting Mann v. State, 13 S.W.3d 89, 92 (Tex.
App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001)).
        In this case, we focus on Appellant’s driving at the time he approached
Sergeant Chandler’s patrol car. Appellant drove on the wrong side of the road as he
approached Sergeant Chandler’s patrol car. The Texas Court of Criminal Appeals
noted in Drichas v. State that driving on the wrong side of the road evidences actual
endangerment in the manner in which the operator drives an automobile. 175
S.W.3d 795, 798 (Tex. Crim. App. 2005); see Moore, 520 S.W.3d at 909–10
(discussing Drichas). Not only did Appellant drive on the wrong side of the road,
he also drove toward a vehicle occupied by a person that had just stopped there. This
was not a situation where a driver momentarily crossed the center line of a highway
with very few other cars on the road—as was the case in Brister v. State. 449 S.W.3d
490 (Tex. Crim. App. 2014); see Moore, 520 S.W.3d at 910 (discussing Brister).
Based on this evidence, we conclude that a rational factfinder could infer that
Appellant used his motor vehicle in a manner that was capable of causing death or
serious bodily injury. We overrule Appellant’s sole issue on appeal.
        We affirm the judgments of the trial court.


August 23, 2018                                                    JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                       SENIOR CHIEF JUSTICE
Panel consists of: Bailey, J.; Gray, C.J.,
10th Court of Appeals1; and Wright, S.C.J.2

Willson, J., not participating.
        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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