                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-060-CR


DAVID R. POYNTER                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                 Introduction

     Appellant David R. Poynter appeals his conviction for aggravated assault

of a public servant. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2),

(b)(2)(B) (Vernon Supp. 2008).    In four related points, he asserts that the




     1
         … See Tex. R. App. P. 47.4.
evidence admitted at his trial is legally and factually insufficient to support his

conviction. We affirm.

                                Background Facts

      On December 22, 2005, Fort Worth Police Department Officer Jerry

Cedillo received an anonymous tip regarding the presence of methamphetamine

at a motel room in Saginaw. He arrived at the motel at approximately 8:00

p.m., and he saw a Mercedes-Benz car parked in front of the suspected motel

room. After another Fort Worth officer (Sergeant Terry Porter) joined him at the

motel, Officer Cedillo saw Poynter leave the motel room and get in the car.

      Officer Cedillo and Sergeant Porter, in unmarked vehicles, followed

Poynter as he began to travel on Interstate Highway 820 (IH 820).

Sergeant Porter saw Poynter commit traffic violations; Sergeant Porter then

requested that a marked police vehicle join Officer Cedillo and him to assist

with a traffic stop as Poynter continued to travel several more miles.

Officer Kirk Massey heard the request and found Poynter’s car; Officer John

David Riggall, in his own marked patrol car, joined in Officer Massey’s pursuit;

Officer Massey turned on his patrol lights, but Poynter did not stop.2




      2
      … At that time, Officer Cedillo returned to the motel to prevent anyone
from destroying evidence there. He eventually entered Poynter’s motel room,
where he discovered used syringes.

                                        2
      Poynter reversed his direction on IH 820;3 while traveling at about eighty

miles per hour, he then exited towards the motel with Officer Massey and

Officer Riggall following him. Poynter returned to IH 820,4 while continuing to

evade the police (with Sergeant H.G. Baxter joining the pursuit). Eventually, at

an exit off of IH 820, an assisting officer placed a spike strip; Poynter ran over

the strip, which deflated one of his tires. Poynter reduced his speed, but he did

not stop.

      Poynter returned to the motel and circled its parking lot. He then left the

parking lot, eventually returned to the motel again, and left the parking lot




      3
       … When Poynter reversed direction, Officer Massey turned on his patrol
car’s sirens.
      4
      … At some point, a police helicopter followed the officers’ chase of
Poynter.

                                        3
another time; while doing so, he struck Sergeant Baxter’s marked patrol car.5

Poynter again went to IH 820.

      Fort Worth Lieutenant Edmund Daniels joined the pursuit; by driving

parallel to Poynter, he prevented Poynter from crossing a median, which would

have allowed him to unsafely drive in opposite lanes of traffic. As Poynter

moved back onto the highway to drive in the correct direction of traffic, Officer

Riggall, standing on the outside shoulder of the highway (between the access

road and the highway), attempted to set up another spike strip to flatten

Poynter’s other tires. Poynter traveled across three lanes of traffic, toward the

shoulder of the highway, directly to where Officer Riggall (who was wearing his

uniform) was standing. Officer Riggall ran off the shoulder of the highway and



      5
        … Sergeant Baxter had parked the patrol car in response to Poynter’s
temporarily stopping his own car. Officer Massey and Officer Riggall had
moved their patrol cars to block one of the motel’s exits. Sergeant Baxter
testified,

      I had opened the door and was literally in the process of starting to
      put my foot out when I heard commotion and I looked up and saw
      the vehicle coming directly towards me.

            ....

           I slammed the door . . . and just braced myself for impact
      because it was obvious he was fixing to ram me.

Sergeant Baxter sustained neck injuries requiring treatment for two months; his
patrol car had to be towed from the scene.

                                       4
into a ditch to avoid being struck by Poynter’s car. 6 Lieutenant Daniels pinned

Poynter’s car against a guardrail, and the pursuit finally ended.7

      In April 2006, a Tarrant County grand jury indicted Poynter; the

indictment alleged that Poynter committed aggravated assault on a public

servant by intentionally or knowingly threatening bodily injury to Officer Riggall

while using his car as a deadly weapon.8        The indictment also contained a

habitual offender paragraph that alleged that Poynter had previously been

convicted of two other felony offenses.



      6
      … Officer Riggall stated that Poynter went from the center lane of the
highway to drive directly in his direction at about thirty miles an hour.
He explained,

      [I tried] to throw [the spike strip] as far as I could out there because
      [Poynter had] been driving back across the lane. I looked up and
      I saw that his headlights were pointing towards me. He was
      actually driving back across the outside lane towards me.

            ....

           At that point, survival instinct kicked in and I turned and ran
      back across the field or across the ditch towards my patrol unit.
      7
       … Video tapes of the officers’ chase of Poynter’s car were mistakenly
erased. Sergeant Porter testified that when officers took Poynter out of his
vehicle, he showed signs of intoxication—he could not support his own weight
and his eyes were extremely dilated. Officer Riggall stated that Poynter did not
appear to be intoxicated.
      8
       … The indictment alleged that Poynter’s car, in the manner of its
intended use, was capable of causing death or serious bodily injury.

                                         5
      The trial court appointed Poynter’s counsel and the parties filed various

pretrial documents, then Poynter’s trial began with his not guilty plea. After the

parties concluded voir dire and they submitted their opening arguments, the

State presented its case, which consisted of testimony from the officers who

had been involved in Poynter’s chase.        Poynter did not call any witnesses.

After the court read its charge to the jury and both sides presented closing

arguments,9 the jury found Poynter guilty. After hearing evidence regarding

Poynter’s punishment, the jury sentenced him to life in prison.

                    Standards of Review and Applicable Law

      In his four points, Poynter contends that the evidence presented at trial

(as summarized above) is not legally or factually sufficient to support his

conviction.

Legal sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.              Jackson v.




      9
       … In his closing argument, Poynter’s counsel theorized that Poynter did
not intend to drive at Officer Riggall, but that instead, Poynter either lost control
of his car or was just attempting to continue to evade the officers.

                                         6
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 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; Clayton, 235

S.W.3d at 778.

      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 (Vernon 1979); Brown

v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).                 Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).

      Instead, we “determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed

in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved

any conflicting inferences in favor of the prosecution and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d

at 778.    In determining the legal sufficiency of the evidence to show a

                                         7
defendant’s intent, and faced with a record that supports conflicting inferences,

we “must presume—even if it does not affirmatively appear in the record—that

the trier of fact resolved any such conflict in favor of the prosecution, and must

defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim.

App. 1991).

Factual sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704–05

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.




                                        8
      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000).

      Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an

evaluation of credibility and demeanor, and those jurors were in attendance

when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless

we conclude that it is necessary to correct manifest injustice, we must give due

deference to the factfinder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Id. at 9. Our deference

in this regard safeguards the defendant’s right to a trial by jury. Lancon, 253

S.W.3d at 704.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

                                        9
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). A

factual sufficiency review of circumstantial evidence is the same as a review

of direct evidence.     King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App.

2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999)

(reasoning that “[c]ircumstantial evidence, by itself, may be enough to support

the jury’s verdict”).

The elements of Poynter’s crime

      The jury convicted Poynter of aggravated assault on a public servant.

Under the indictment in this case, that crime required the State to prove that

Poynter intentionally or knowingly threatened Officer Riggall with imminent

bodily injury from a deadly weapon while knowing that Officer Riggall was a

public servant and while Officer Riggall was lawfully discharging his official

duty. Dobbins v. State, 228 S.W.3d 761, 764 (Tex. App.—Houston [14th

Dist.] 2007, pet. dism’d); Dunklin v. State, 194 S.W.3d 14, 21–22 (Tex.

App.—Tyler 2006, no pet.); see Tex. Penal Code Ann. §§ 22.01(a)(2),

22.02(a)(2), (b)(2)(B).

                                    Analysis

      Poynter challenges the evidence supporting the jury’s implicit findings that

he intentionally or knowingly threatened Officer Riggall and that he used a

deadly weapon; he does not challenge that Officer Riggall is a public servant or

                                       10
that Officer Riggall was lawfully discharging his duty during the incident

described above.

The sufficiency of the evidence supporting Poynter’s intentional or knowing
threat of Officer Riggall

      In his first and second points, Poynter respectively challenges the legal

and factual sufficiency of the evidence supporting that he intentionally or

knowingly threatened Officer Riggall. He contends that his conduct in this case

was “misinterpreted because he did not intend to hurt Officer Riggall. Instead,

[he] was attempting to evade arrest. The evidence of Officer Riggall’s fear . . .

is not sufficient to establish [Poynter’s] intent to threaten.”   Poynter acted

intentionally by threatening Officer Riggall if it was his conscious objective or

desire to do so; Poynter acted knowingly if he was aware that such a threat

would occur. Tex. Penal Code Ann. § 6.03(a), (b) (Vernon 2003).

      The intentional or knowing state of mind of a defendant may be proved

without direct evidence; such a state of mind may be “inferred from

circumstantial evidence such as [the defendant’s] acts, words, [or] conduct.”

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see Mashburn

v. State, 272 S.W.3d 1, 14 (Tex. App.—Fort Worth 2008, pet. struck); Krause

v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (explaining that “[p]roof of a culpable mental state almost invariably



                                       11
depends upon circumstantial evidence”). When reviewing the jury’s implicit

decision to infer that Poynter intentionally or knowingly threatened Officer

Riggall, it is “not necessary that [we] find to [our] own satisfaction that such

was [his] intent. It is enough for us to find that ‘any’ rational jury could have

so found beyond a reasonable doubt.” Brimage v. State, 918 S.W.2d 466, 476

(Tex. Crim. App. 1994).

      Applying these standards, the evidence in the record is legally sufficient

to show that Poynter intentionally or knowingly threatened Officer Riggall by

driving at him. The uncontradicted testimony of three eyewitnesses indicated

that Poynter

      •     “moved from the center lane all the way over to the other
            lane and onto the shoulder, and Officer Riggall ran . . . to
            keep from being struck” (Sergeant Randy Whisenhunt’s
            testimony);

      •     moved “right across all three lanes of traffic toward the
            shoulder,” where he “[w]ent directly for Officer Riggall, drove
            directly towards him,” to the extent that Officer Riggall
            “jumped out of the roadway” (Lieutenant Daniels’s
            testimony); and

      •     changed direction so that he was driving “across the outside
            lane towards” Officer Riggall (Officer Riggall’s testimony).

In fact, while observing Poynter’s maneuver, Sergeant Whisenhunt yelled to

Officer Riggall, “[Poynter’s] going to try and hit you.” The testimony of two of

the three officers indicated that before Poynter made his move, he had been

                                       12
maintaining a single lane of traffic, and he had been successfully controlling his

car. The evidence established that after almost hitting Officer Riggall with his

car, Poynter simply moved back to the center lane of the highway and

continued eastbound. Finally, the jury heard testimony regarding Poynter’s

willingness to make contact with his vehicle—just a few minutes before driving

at Officer Riggall, Poynter struck Sergeant Baxter’s patrol car.

      Viewing this evidence and the other evidence summarized above in the

light most favorable to the jury’s verdict and deferring to the jury’s implicit

inference about the weight of the evidence, we hold that the evidence

sufficiently indicates Poynter’s intent or knowledge regarding his threat to

cause imminent harm to Officer’ Riggall. We therefore overrule his first point.

      We hold that the evidence is likewise sufficient when viewed according

to factual sufficiency standards. Because there was no evidence presented at

trial conflicting with the evidence described above, the jury’s determination

about Poynter’s state of mind could only be reversed for factual insufficiency

if the evidence was so weak that the determination was clearly wrong and

manifestly unjust. See Lancon, 253 S.W.3d at 705. We cannot conclude that

standard has been satisfied.




                                       13
      First, although Poynter has offered possible reasons for driving at Officer

Riggall10 other than intentionally or knowingly threatening him,11 he presented

no evidence at trial to support those reasons. Next, Poynter’s assertion that he

was trying only to evade the officers who were pursuing him when he drove at

Officer Riggall does not make sense because there is nothing in the record

indicating that Poynter could not have continued his progression through the

center lane of the highway as he did before and after his diversion in Officer

Riggall’s direction.   Finally, even if there was evidence in the record that

supported Poynter’s explanation of his conduct, the jury was free to either

believe or disbelieve that conflicting theory. See Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001) (stating that it “is a jury, not a reviewing

court, that accepts or rejects reasonably equal competing theories”); Gregory

v. State, 159 S.W.3d 254, 261 (Tex. App.—Beaumont 2005, pet. ref’d).

      Affording the jury’s decision appropriate deference under the authority

cited above, we conclude that the evidence is factually sufficient to show that




      10
        … Importantly, he does not dispute that he drove his car in Officer
Riggall’s direction; rather, he asserts that his “conduct was misinterpreted.”
      11
       … As noted above, on appeal, Poynter contends that he was attempting
to evade arrest; during closing argument at trial, his counsel also asserted that
he may have lost control of his car.

                                       14
Poynter intentionally or knowingly threatened Officer Riggall. Therefore, we

overrule Poynter’s second point.

The sufficiency of the evidence supporting Poynter’s use of his car as a
deadly weapon

      In his third and fourth points, Poynter respectively challenges the legal

and factual sufficiency of the evidence indicating that he used his car as a

deadly weapon. He contends that he did not drive his car in a manner clearly

endangering Officer Riggall’s life.

      A deadly weapon is “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann.

§ 1.07(a)(17)(b) (Vernon Supp. 2008); see Butler v. State, 928 S.W.2d 286,

288 (Tex. App.—Fort Worth 1996, pet. ref’d). A car can be a deadly weapon.

Butler, 928 S.W.2d at 288; see Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003) (explaining that an “automobile can be a deadly weapon if it

is driven so as to endanger lives”); Davis v. State, 964 S.W.2d 352, 354 (Tex.

App.—Fort Worth 1998, no pet.) (holding that the defendant’s driving his car

in oncoming lanes of traffic qualified the car as a deadly weapon).

      Applying the standards set forth above, we hold that the evidence

admitted at Poynter’s trial is legally sufficient to show that he used his car as

a deadly weapon.      As described above, three eyewitnesses testified that



                                       15
Poynter drove his car directly at Officer Riggall and that Officer Riggall had to

quickly evade Poynter’s car to prevent being struck.          Lieutenant Daniels

testified that Officer Riggall was “very much” in danger of being hurt; he also

opined that Poynter’s car was capable of causing death or serious bodily injury.

Sergeant Whisenhunt also testified that Poynter could have caused Officer

Riggall to die or sustain serious bodily injuries. Because this evidence could

have allowed a rational jury to determine beyond a reasonable doubt that

Poynter used his car as a deadly weapon as defined above, it is legally

sufficient. Clayton, 235 S.W .3d at 778. Thus, we overrule Poynter’s third

point.

         The evidence is also sufficient when considered under the factual

sufficiency standard because it is not so weak that the jury’s determination was

clearly wrong and manifestly unjust. Lancon, 253 S.W.3d at 704. Poynter did

not present any evidence to contradict the opinions and observations of the

eyewitnesses that his driving at Officer Riggall endangered Officer Riggall’s life.

Thus, the jury’s determination that Poynter used his car as a deadly weapon

was based on factually sufficient evidence. See Cates, 102 S.W.3d at 738;

see also Tarin v. State, No. 08-02-00202-CR, 2004 WL 362601, at *4 (Tex.

App.—El Paso Feb. 25, 2004, no pet.) (mem. op., not designated for

publication) (holding that acceleration of a motorcycle at an officer, coupled

                                        16
with testimony that the motorcycle was capable of causing death or serious

bodily injury, when the defendant “did not provide evidence diminishing the

impact of the State’s evidence,” was factually sufficient to qualify the

motorcycle as a deadly weapon in an aggravated assault case). We therefore

overrule Poynter’s fourth point.

                                   Conclusion

      Having overruled all of Poynter’s points, we affirm the trial court’s

judgment.




                                           TERRIE LIVINGSTON
                                           JUSTICE


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

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

DELIVERED: April 30, 2009




                                      17
