                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00546-CR


TIMOTHY HERRING                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                        MEMORANDUM OPINION 1

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      In one issue concerning only evidentiary sufficiency, appellant Timothy

Herring appeals his conviction for attempted capital murder of a peace officer. 2

We affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. §§ 15.01(a), 19.02(b)(1) (West 2011),
§ 19.03(a)(1) (West Supp. 2013).
                                Background Facts

       The facts relevant to this appeal are mostly uncontested.         The parties

differ, however, in their views on what inferences about appellant’s intent may be

reasonably drawn from those facts and whether any such inferences satisfied the

State’s burden of proof.

       One early afternoon in June 2011, the police received a report that two

people were traveling in Wise County in a white van that was stolen. The police

found the van, and although they quickly arrested the passenger, the driver—

appellant—escaped and commandeered an orange tractor 3 that was parked on a

driveway. While driving the tractor, appellant wrapped a white, thick blanket (a

“comforter”) around all of his body except for his face, although it was very hot

that day. 4

       Matthew Germain, a corporal with the Wise County Sheriff’s Office,

received a dispatch and traveled to the southwest part of Wise County. The

dispatch instructed Corporal Germain to watch for the tractor. After being told

that the driver of the tractor potentially had a gun on his hip and after looking for

the tractor in a pasture with no success, Corporal Germain left the pasture, got

into a marked police car, traveled on a county road, and saw the tractor moving

in a field. The tractor was going “as fast as [it] would go” and was moving away

       3
       The tractor, a Kubota, was larger than a riding lawn mower but not as
large as a “big farm tractor.”
       4
        Appellant had stolen the blanket from a residence in the area.


                                         2
from law enforcement vehicles while attempting to evade them, including the car

containing Corporal Germain. At that point, the chase had been continuing for

over an hour.

       Texas Department of Public Safety Trooper Adolpho Patterson 5 and

Corporal Germain leapt into a field over a barbed-wire fence to chase the tractor

and to apprehend appellant. Trooper Patterson proceeded ahead of Corporal

Germain once they reached a heavily wooded area containing briars; Trooper

Patterson found a “better hole through the briars.” While in the briars, Trooper

Patterson could not see the tractor, but he could hear its engine revving as

appellant was trying to get through the wooded area. 6

       Near the same time, Guy Cumbie, who lived near where the chase was

occurring, received a call from his neighbor, who told Cumbie that “there was a

guy on a stolen tractor rampaging across the countryside.” After relaying that

information to other neighbors, Cumbie grabbed a handgun and went outside on

an all-terrain vehicle (ATV) to intercept the tractor. Cumbie found the tractor as it


       5
        Trooper Patterson was conducting an unrelated traffic stop when he
received a call about the chase. He received information that while on the
tractor, appellant was damaging property, such as several fences and trees. He
was also notified that appellant “had a weapon on his hip”; this report scared him.
After seeking the tractor for about an hour, while driving on a county road,
Trooper Patterson saw appellant on the tractor. When appellant saw Trooper
Patterson and other officers, he turned the tractor away from them.
       6
        Concerning the briars, Trooper Patterson testified, “The brush is just really
thick; there’s long thorns. And it’s . . . like there’s these rolls of thorns[,] . . . lots
of trees, tall grass; it’s just really thick.”


                                            3
was moving toward his house, moved his ATV in front of the tractor at a ninety-

degree angle, and yelled and gestured for appellant to stop.

      Appellant stared at Cumbie and stopped the tractor for a moment. Soon

thereafter, however, appellant raised the tractor’s bucket and began to accelerate

toward Cumbie. It was apparent to Cumbie that appellant was “coming at [him]

to ram [him] with the tractor.” Cumbie feared that he was going to be killed by

the tractor and its load bucket.

      Just as Cumbie was about to reach for his handgun, 7 Trooper Patterson,

who was wearing his DPS uniform, emerged from the briars. Trooper Patterson

noticed that Cumbie looked afraid, saw that the tractor was moving directly

toward Cumbie, drew his gun, moved near the ATV, and repeatedly commanded

appellant to stop the tractor.

      Appellant responded by ranting and saying to Trooper Patterson, “F--- you,

mother f-----.” He also redirected the tractor to charge toward Trooper Patterson

and lifted the tractor’s bucket higher; to Cumbie, it “was clear that [the tractor]

was coming at [Trooper Patterson].”       According to Trooper Patterson, when

appellant shifted his attention to him from Cumbie, appellant “looked like the devil

covered in a blanket”; he had a “mean look.”

      Appellant revved the engine “as loud as it could get” while turning in

Trooper Patterson’s direction. Because appellant had raised the tractor’s bucket,

      7
       Cumbie testified that he was “about a nano second” away from pulling out
his gun.


                                         4
Trooper Patterson and appellant could not see each other. Fearing for his life

and to keep from getting run over, Trooper Patterson began to move to his left

and fired a shot into the tractor’s front passenger-side tire.

       The tractor still did not slow down.     Appellant stood up on the tractor,

attempted to remove the blanket from around himself, and appeared to reach for

something on his right side. Trooper Patterson saw a shiny item near appellant’s

right side that he thought was a rifle; he believed that he was going to be shot.

Thus, after stepping to the tractor’s side, from approximately ten yards away,

Trooper Patterson fired two shots toward appellant, and appellant either jumped

or fell off of the tractor.

       As Corporal Germain was completing his navigation through the briars, he

heard the first gunshot. After emerging from the briars, Corporal Germain saw

Cumbie’s ATV, watched appellant raise the tractor’s load bucket and steer the

tractor “[v]ery, very slowly” toward Trooper Patterson, and witnessed appellant’s

face-down fall from the tractor after Trooper Patterson fired the last two shots.

Corporal Germain helped Trooper Patterson subdue and detain appellant, who

continued to curse and be belligerent. 8 According to Corporal Germain, after

appellant’s arrest, he was loud and had an “I-don’t-care attitude.”




       8
        Corporal Germain was close to the tractor when he emerged from the
briars; he testified that it took him less than two seconds to get to appellant after
appellant fell.


                                          5
      No officer ever found a gun on appellant or along the path where appellant

had driven the tractor.    Appellant caused almost $12,000 in damage to the

tractor. At the end of the chase, the tractor had several hundred feet of barbed-

wire fence wrapped around its axles. According to its owner, although it could

move, it drove “almost like the brakes were on.”

      Jim Holland, a Texas Ranger, investigated the incident (including

interviewing appellant) and concluded that appellant had intended to kill Trooper

Patterson. A grand jury indicted appellant for attempted capital murder. The

indictment alleged that appellant, with the specific intent to commit the capital

murder of Trooper Patterson, had charged at him with the tractor and its load

bucket. Through a separate indictment, a grand jury alleged that appellant had

committed aggravated assault by threat against Cumbie.

      Appellant pled not guilty to attempted capital murder and aggravated

assault. The jury convicted appellant of attempted capital murder. Based on a

guilty plea, the jury also convicted him of unauthorized use of a motor vehicle

(the tractor), a state jail felony. 9 The jury found, however, that appellant was not

guilty of aggravated assault against Cumbie. The trial court sentenced appellant

to twenty years’ confinement for the attempted capital murder conviction.

Appellant brought this appeal.




      9
       See Tex. Penal Code Ann. § 31.07 (West 2011).


                                         6
                             Evidentiary Sufficiency

      Appellant argues only that the evidence is insufficient to support his

attempted capital murder conviction. 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); Winfrey v.

State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). 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; Blackman v. State,

350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences


                                         7
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360. When we conclude that evidence is

insufficient under the Jackson standard to support a conviction, we must reverse

the conviction and acquit the appellant. Wooden v. State, 101 S.W.3d 542, 549

(Tex. App.—Fort Worth 2003, pet. ref’d).

         To obtain appellant’s conviction for attempted capital murder under the

facts of this case, the State was required to prove beyond a reasonable doubt

that with the specific intent to kill Trooper Patterson and while knowing that

Trooper Patterson was a peace officer, 10 appellant drove the tractor with its load

bucket at him, which was an act amounting to more than mere preparation that

tended but failed to kill Trooper Patterson.        See Tex. Penal Code Ann.

§§ 15.01(a), 19.03(a)(1); Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim.

App. 1982) (op. on reh’g) (“[A] specific intent to kill is a necessary element of

attempted murder.”); Watkins v. State, 333 S.W.3d 771, 776 (Tex. App.—Waco

2010, pet. ref’d) (reiterating that attempted murder requires a specific intent to

kill).

         An act “tends” to cause a result under the attempt statute (section 15.01)

when it “could” cause that result. See Weeks v. Scott, 55 F.3d 1059, 1063–64

(5th Cir. 1995) (analyzing Texas decisions and upholding an HIV-positive

defendant’s conviction for attempted murder in a habeas corpus context when

         10
       Appellant does not contend that the evidence is insufficient to prove his
knowledge that Trooper Patterson was a peace officer.


                                          8
the defendant had spat on a prison guard, which, according to testimony, could

have transmitted HIV). The fact that a defendant could take other actions before

completing the intended offense does not negate a conviction for attempt. See

Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981);

Henson v. State, 173 S.W.3d 92, 101 (Tex. App.—Tyler 2005, pet. ref’d).

      In his brief, appellant does not primarily contest the jury’s implicit finding

that it was his intent or desire to kill Trooper Patterson with the tractor or that the

evidence was sufficient to show such. 11 Rather, appellant principally argues that

he could not have attempted to kill Trooper Patterson because the tractor, in its

damaged and slow state at the end of the chase, was incapable of doing so.

Specifically, he contends,

             By the time of [appellant’s encounter with Trooper Patterson],
      the [tractor] (already a slow moving vehicle) was severely damaged
      and had several hundred feet of barbed wire fence wrapped around
      its axles. As it headed toward Mr. Cumbie, Mr. Cumbie felt no need
      to flee or even move. When it turned toward Trooper Patterson, the
      Trooper’s main concern was that [appellant] was armed. Indeed,
      Trooper Patterson chose to stay in front of the [tractor] and the
      bucket for protection . . . .

             [Appellant] did not attempt to kill Trooper Patterson with the
      [tractor] for the simple reason he could not have killed the Trooper
      with the [tractor]. All Trooper Patterson had to do was step out of


      11
        One subheading in appellant’s brief contends that he could not have
intended to kill anyone. But the argument under that subheading concerns the
condition of the tractor rather than appellant’s mindset. Specifically, appellant
asserts under that subheading, “The testimony of the witnesses at trial leaves no
doubt that the [tractor] could not be used to run down any conscious and mobile
person.”


                                          9
      the way. The crippled [tractor] was incapable of “running down” any
      unrestrained person.

            ....

             . . . [Appellant] could never have run down Trooper Patterson
      because all Trooper Paterson had to do . . . is exactly what he did do
      -- step to the side.[12]

      When a defendant is charged with an attempt to commit a crime, “it is

immaterial whether the attempted crime is impossible of completion if . . .

completion was apparently possible to the defendant who was acting with the

intent to commit the crime.” Chen v. State, 42 S.W.3d 926, 930 (Tex. Crim. App.

2001). In other words, the defendant’s intent is the “critical element in attempt

offenses—not possible completion of the substantive offense.” 13 Id. at 930 n.2.

Thus, an attempt conviction may stand where the completion of the crime was

“apparently possible” to the defendant, even if the completion of the crime was


      12
         As appellant argues, the evidence does not show that Trooper Patterson
lunged, dove, or ran to the side of the tractor. Trooper Patterson recognized that
tractors “don’t go fast” even if “they’re revved up all the way.”
      13
       On appeal, appellant focuses almost exclusively on matters other than
his mindset, including the condition of the tractor and the acts of Cumbie and
Trooper Patterson. But during appellant’s counsel’s closing argument at trial,
counsel stated,

      The issue is: What was in [appellant’s] mind? Did he intend to
      commit murder? . . .

            ....

             The test here is what was inside [appellant’s] head. Was he
      trying to get [away], or was he trying to kill them? Was he trying to
      get away, or was he trying to run over them?


                                       10
not actually possible. See id. at 930 (upholding a defendant’s conviction for

attempted sexual performance by a child even though the person with whom the

defendant had conversed online was not actually a child); see also Ashcraft v.

State, Nos. 03-06-00310-CR, 03-06-00311-CR, 2008 WL 2938733, at *6 (Tex.

App.—Austin July 31, 2008, no pet.) (mem. op., not designated for publication)

(quoting Chen and holding similarly).

      Stated differently, factual impossibility is not a defense to an attempt crime.

See Chen, 42 S.W.3d at 930; Lawhorn v. State, 898 S.W.2d 886, 892 (Tex. Crim.

App. 1995) (reciting that if the “intended end is a legally proscribed harm, the

failure to effect it because of the lack of a factual condition necessary to its

occurrence . . . is no defense”); Taylor v. State, No. 02-10-00264-CR, 2011 WL

4345280, at *4 (Tex. App.—Fort Worth Sept. 15, 2011, pet. ref’d) (mem. op., not

designated for publication) (affirming a conviction for attempted arson although

the appellant argued that weather conditions and other factors made the

completion of the arson factually impossible); Giddings v. State, 816 S.W.2d 538,

539–40 (Tex. App.—Dallas 1991, pet. ref’d) (affirming a conviction for attempted

possession of cocaine that did not exist).

      Here, appellant’s offense was complete, and his conviction must be

affirmed, if the evidence is sufficient to show that he intended to kill Trooper

Patterson and acted upon that intent with more than mere preparation and with a

tendency to effect murder.    See Tex. Penal Code Ann. § 15.01(a); see also

Taylor, 2011 WL 4345280, at *4 (“The attempted arson was completed when


                                        11
Taylor lit the rag after pouring the gasoline onto the car. It mattered not whether

he threw the rag on the car.”). Viewing the evidence and reasonable inferences

from the evidence in the light most favorable to the verdict, we conclude that the

jury could have rationally found that the State met its burden of proof concerning

these elements. See Temple, 390 S.W.3d at 360; Sorrells, 343 S.W.3d at 155.

      Specifically, we conclude that the jury could have rationally inferred

appellant’s intent to kill Trooper Patterson and a sufficient step toward carrying

out that intent from the evidence that appellant, in successive acts, accelerated

directly toward Cumbie with, according to Cumbie, the intent to “ram” Cumbie

with the tractor; 14 turned the tractor toward Trooper Patterson while Trooper

Patterson was commanding appellant to stop, while appellant was cursing at

Trooper Patterson, and while appellant was grimacing; revved the engine “as

loud as it could get” while driving the tractor toward Trooper Patterson; raised the

load bucket with the possible purpose of either ramming Trooper Patterson with it

or protecting himself while continuing the tractor’s charge toward Trooper

Patterson; and continued moving the tractor toward Trooper Patterson even after

Trooper Patterson fired a shot into the tractor’s front passenger-side tire. From

these acts, the jury could have rationally determined that it was “apparently




      14
         Similarly, Trooper Patterson testified that when he first saw Cumbie and
the tractor together, he believed that the tractor was going to run over Cumbie.


                                        12
possible” to appellant to kill Trooper Patterson with the tractor. 15 See Chen, 42

S.W.3d at 930.

      Appellant argues on appeal that Cumbie’s decision to not move his ATV

from the tractor’s path signals that appellant could not have attempted to kill

Trooper Patterson with the tractor and that Trooper Patterson could not have

feared for his life. But Cumbie confirmed at trial that he had feared for his life

when appellant had charged at him with the tractor. And although appellant

argues that Cumbie’s actions spoke louder than his words, when appellant’s

counsel asked Cumbie whether he could have driven his ATV away from

appellant if he felt that he was in danger from appellant’s charging at him with the

tractor, Cumbie said,

            When I started to reach for the gun, before Trooper Patterson
      got there, I was contemplating -- you know, I -- I figured I could
      outrun him on the [ATV], but I didn’t -- I didn’t want to turn around.

            I . . . figured he was armed. He had this blanket thing over
      him. And I didn’t want to catch . . . a bullet in the back of the head.
      And I also didn’t want to lead him up towards the house . . . that I
      was trying to keep him away from . . . . [Emphasis added.]

Based on this testimony, the jury could have reasonably found that Cumbie, like

Trooper Patterson, was in fear of being killed by the tractor even though he did

not attempt to escape from it.


      15
         Also, as the State argues, the jury could have inferred appellant’s
knowledge that the tractor was capable of killing Trooper Patterson from the fact
that appellant had already used the tractor to plow through fences and other
objects.


                                        13
      Appellant also contends that Trooper Patterson feared for his life because

of his belief that appellant had a gun, not because of appellant’s charging at him

with the tractor. But while Trooper Patterson testified that he was afraid of being

shot, he also testified that when the tractor accelerated toward him, he was

“fearing for [his] life and [he] didn’t want to get run over.”

      In any event, although appellant’s argument on appeal focuses to a

significant extent on whether Cumbie or Trooper Patterson actually or reasonably

feared the tractor, their fear was not an element of appellant’s attempted capital

murder offense. Under the penal code, a conviction for attempted murder does

not require proof of the victim’s fear or even of the victim’s apprehension of the

defendant’s intent to kill. See Tex. Penal Code Ann. §§ 15.01(a); 19.02(b)(1);

see also Castillo v. State, 186 S.W.3d 21, 27 (Tex. App.—Corpus Christi 2005,

pet. ref’d) (“[T]he focus of attempted capital murder is the intentional attempt to

kill . . . .”); Roberson v. State, 144 S.W.3d 34, 39 (Tex. App.—Fort Worth 2004,

pet. ref’d) (“[T]he following are the elements of attempted murder: 1) a person,

2) with the specific intent to cause the death of another, 3) does an act

amounting to more than mere preparation, 4) but fails to effect the death of the

other individual.”).

      Appellant also contends that the evidence shows that he raised the

tractor’s bucket while accelerating toward Trooper Patterson to shield himself

rather than to harm or kill Trooper Patterson. Cumbie opined, however, that

appellant had raised the bucket while charging at him because appellant had


                                           14
wanted to “get the [ATV].” Cumbie testified that it was “apparent” that appellant

had intended to ram him with the tractor.

          Also, Trooper Patterson testified that the bucket’s raising concerned him

because “at the same time that that happened, the tractor -- you know, the

engine was -- went from, you know, being loud, as it was already, to -- as loud as

it could get. It was just like the revving from the engine just revved all the way

up.” 16        We conclude that from this testimony, and especially from Trooper

Patterson’s statement that appellant revved the engine while raising the bucket

and turning the tractor toward Patterson, the jury could have reasonably inferred

that appellant raised the bucket while intending to kill Trooper Patterson with it.

          But even if appellant is correct to argue that the most reasonable inference

from his raising the bucket was that he was trying to shield himself, appellant’s

desire to shield himself with the bucket or hide behind it would not necessarily

negate an associated intent to kill Trooper Patterson with the tractor. In fact, the

jury could have reasonably concluded that appellant’s hiding behind the bucket

assisted his intent to ram Trooper Patterson with it and the tractor and to

therefore kill him.

          For all of these reasons, viewing the evidence in the light most favorable to

the jury’s verdict and deferring to the jury’s weighing of the evidence, we

conclude that a rational factfinder could have found the elements of attempted


          16
           Appellant raised the bucket to the level of Trooper Patterson’s face.


                                           15
capital murder beyond a reasonable doubt.       See Tex. Penal Code Ann.

§§ 15.01(a), 19.02(b)(1), 19.03(a)(1); Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Blackman, 350 S.W.3d at 595. We overrule appellant’s only issue.

                                 Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.




                                                TERRIE LIVINGSTON
                                                CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 16, 2014




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