               NUMBERS 13-11-00124-CR & 13-11-00125-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

NATHAN THOMAS RODRIGUEZ,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


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


                       MEMORANDUM OPINION
               Before Justices Benavides, Vela and Perkes
               Memorandum Opinion by Justice Benavides

      Appellant Nathan Thomas Rodriguez appeals his jury conviction for evading

detention (using a vehicle), a state jail felony, and aggravated assault with a deadly

weapon, a second-degree felony.     See TEX. PENAL CODE ANN. § 38.04(b)(1) (West

2011); TEX. PENAL CODE ANN. §§ 22.01; 22.02(a)(1) (West 2011).   He was sentenced to
two years’ imprisonment on the evading detention (using a vehicle) charge and twenty

years’ on the aggravated assault charge in the Texas Department of Criminal Justice’s

Institutional Division.   By two issues, Rodriguez argues that (1) the evidence is

insufficient on both charges to sustain the convictions, and (2) the punishments imposed

by the jury are cruel and unusual under the United States Constitution. We affirm the

trial court’s judgments because (1) sufficient evidence supports Rodriguez’s two

convictions; and (2) Rodriguez did not preserve error on the issue of punishment.

                                  I.       BACKGROUND

       In the early morning hours of August 26, 2010, Rodriguez led several police

officers on a high-speed chase through the streets of Victoria, Texas.         Prosecutors

presented video evidence to the jury taken from two different police cruisers involved in

the pursuit.

       The chase began when Officer Michael Leet observed three vehicles traveling

east on Houston Highway, one of which was honking his horn.        Officer Leet pursued the

vehicles in his marked unit and later observed two of the vehicles turn south onto John

Stockbauer Drive.    One of the vehicles—a black Jeep Liberty—made an improper right

turn onto John Stockbauer Drive.       The Jeep Liberty, driven by Rodriguez, traveled down

the wrong way of the two-way street. With his overhead lights engaged, Officer Leet

eventually directed the vehicles onto the shoulder of Stockbauer Drive, where they

stopped. Before Officer Leet spoke to any of the drivers, Rodriguez drove away and

struck the other driver’s vehicle in the process.   Officer Leet pursued.

       Rodriguez then traveled down Lone Tree Road at estimated speeds as high as

100 miles per hour. With several police units now in tow, Rodriguez disregarded traffic


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signals at five intersections.       At the intersection of Ben Jordan and Highway 59,

Rodriguez struck the driver’s side of a vehicle stopped at the intersection.                   As a

consequence, Rodriguez’s vehicle had a blown right front tire and became disabled just

past the intersection. Rodriguez then jumped out of the Jeep Liberty, ran on foot, and

jumped over fences before police detained him. The driver of the vehicle that was

struck, Alexis Smith, complained of neck pain following the crash and was transported to

the hospital, treated, and later released.

       The State indicted Rodriguez on three charges:              (1) evading detention with a

vehicle, see TEX. PENAL CODE ANN. § 38.04(b)(1); (2) unauthorized use of a vehicle, see

TEX. PENAL CODE ANN. § 31.07 (West 2011);1 and (3) aggravated assault with a deadly

weapon, to wit: an automobile, see TEX. PENAL CODE ANN. §§ 22.01; 22.02(a)(1).                     A

Victoria County jury sentenced Rodriguez to two years’ imprisonment for the evading

detention charge and to twenty years’ for the aggravated assault with a deadly weapon

offense. This appeal ensued.

                             II. SUFFICIENCY OF THE EVIDENCE

       In his first issue, Rodriguez contends that the evidence is legally insufficient to

sustain his two convictions.

A.     Standard of Review

       We review challenges to the sufficiency of evidence using the Jackson v. Virginia

standard.     See 443 U.S. 307, 318–19.              Having concluded that “no meaningful

distinction” exists between a factual-sufficiency and legal-sufficiency standard, the court

of criminal appeals held that the Jackson standard is the “only standard that a reviewing

       1
          Prosecutors later dropped the unauthorized use charge and successfully prosecuted Rodriguez
on the remaining offenses, after he pleaded not guilty.

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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, 893–903 (Tex. Crim. App. 2010) (plurality

op.). Accordingly, we inquire whether “[c]onsidering all of the evidence in the light most

favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable

doubt?”      Id. at 899.

          “[S]ufficiency of the evidence should be measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case.”      Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc).           Such a charge would be 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.” Id.; Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet.

ref’d).    Finally, in our review we are to “defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight given to their testimony.”     Brooks, 323 S.W.3d at 899.

B.        Discussion

          1. Evading Detention

          Rodriguez asserts that insufficient evidence supports the evading detention with a

vehicle conviction because Rodriguez repeatedly denied evading detention on the

witness stand, and as a result, the lesser-included offense of evading detention was

submitted to the jury.     See TEX. PENAL CODE ANN. § 38.04(a). We disagree.

          A person is guilty of evading detention with a vehicle if:


                                                4
       (1) He intentionally flees

       (2) from a person he knows is a peace officer;

       (3) who is attempting to lawfully to arrest or detain him; and

       (4) uses a vehicle while in flight.

See id.(a)–(b).

       Reviewing the evidence, in a light favorable to the verdict, we conclude that the

jury was rationally justified in finding Rodriguez guilty of this offense.   See Brooks, 323

S.W.3d at 899.    In this case, the State relied on two different police dashboard videos

which depicted the entire ordeal. In the first video, Officer Leet’s camera captured his

initial attempt to detain Rodriguez and the other vehicle along John Stockbauer Drive.

The video depicts Rodriguez and the other vehicle pull over to the side of the road and

come to a complete stop, with Officer Leet’s overhead lights conspicuously engaged.

At that point, Rodriguez turned his vehicle around and sped away, with more officers

joining the pursuit.   Officer Leet’s video depicts Rodriguez’s disregard of traffic lights

while other officers pursued him with engaged overhead lights.

       We are also not persuaded by Rodriguez’s argument that we should give greater

credence to his testimonial denial that he did not see the officers because of loud music

and tinted windows, since the trial court allowed a lesser-included offense instruction

based upon this testimony.     Jurors are the “sole judge of the witnesses’ credibility and

the weight given to their testimony,” and we must defer to their determinations.     Brooks,

323 S.W.3d at 899.      The jury was within its province to give little or no weight to

Rodriguez’s testimony and convict him of the original charge over the lesser-included

one based upon the evidence presented.              A rational jury could conclude that


                                              5
Rodriguez’s actions in the video of pulling over and then speeding away showed that he

intentionally attempted to flee from a Victoria police officer who was attempting to detain

him.   See TEX. PENAL CODE ANN. § 6.03(a) (West 2011) (defining intentionality as a

“conscious objective or desire to engage in the conduct or cause the result”).

       2. Aggravated Assault with a Deadly Weapon

       Rodriguez further asserts that evidence was insufficient to support the aggravated

assault with a deadly weapon charge because he denied any intention to hurt Alexis, as

well as the fact that the trial court submitted a lesser-included offense to the jury based

on this testimony.   See TEX. PENAL CODE ANN. § 22.01. We disagree.

       A person commits aggravated assault with a deadly weapon if he:

       (1) intentionally, knowingly, or recklessly;

       (2) causes bodily injury to another;

       (3) using a deadly weapon;

       (4) during the commission of the assault.

See id.; § 22.02.

       Our review of the record in a light favorable to the verdict allows for a conclusion

that the jury was rationally justified in finding Rodriguez guilty of aggravated assault with

a deadly weapon.      See Brooks, 323 S.W.3d at 899. While the evidence may support

Rodriguez’s argument that he did not intend to hurt Smith, “intentional” is not the only

culpable mental state required to convict him of aggravated assault.        See TEX. PENAL

CODE ANN. § 22.01 (listing knowingly and recklessly as alternative culpable mental

states).   A person acts “recklessly” if:

       He is aware of but consciously disregards a substantial and unjustifiable
       risk that the circumstances exist or the result will occur. The risk must be

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       of such a nature and degree that its disregard constitutes a gross deviation
       from the standard of care that an ordinary person would exercise under all
       the circumstances as viewed from the actor's standpoint.

TEX. PENAL CODE ANN. § 6.03.

       Prosecutors relied heavily on the dashboard video footage taken by Officer

Christina Moore’s patrol unit. The footage, coupled with the video from Officer Leet’s

unit, depict Rodriguez driving through stop lights, operating on the wrong side of the road,

and accelerating at speeds which officers estimated reached close to 100 miles per hour.

The following colloquy illustrates Officer Moore’s observations of Rodriguez’s vehicle and

its impact with Smith’s vehicle:

       PROSECUTOR:                 Based upon your speed could you tell me how
                                   fast the black Jeep Liberty was going?

       OFFICER MOORE:              Ninety-five—Close to 100.

       PROSECUTOR:                 You said there was some other traffic, as you
                                   were traveling on Ben Jordan, towards Highway
                                   59. Could you see any other vehicles in the
                                   vicinity?

       OFFICER MOORE:              I could see one vehicle stopped at a light. I
                                   could see their rear light.

       PROSECUTOR:                 What color was the stop light the vehicle was
                                   at?

       OFFICER MOORE:              It was red.

       PROSECUTOR:                 What was the [Rodriguez’s] vehicle doing at the
                                   time of approaching?

       OFFICER MOORE:              He was coming up straight behind the vehicle
                                   and I see, at the last minute, he swerves and
                                   swerves back into their vehicle—the back side
                                   of the vehicle.

       PROSECUTOR:                 Could you see if—was there any indication that
                                   a collision had occurred?

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        OFFICER MOORE:                   I could tell it could—I saw the car kind of
                                         ricochet off of it and, at that point, the light
                                         turned green and he kept on going.

        Based on the video footage from both officers’ units depicting Rodriguez’s driving,

along with Officer Moore’s testimony, the record sufficiently supports a finding that

Rodriguez drove his vehicle—with other drivers on the road—in a manner which was

“reckless,” considering the gross deviation from the standard of care that an ordinary and

prudent driver would exercise.           See TEX. PENAL CODE ANN. § 6.03.               Accordingly, the

evidence sufficiently supports the first element of the charged offense.

        The State also elicited testimony from Smith and her treating emergency

physician, Dr. Clyde Walrod, that she suffered from blunt trauma following a motor

vehicle collision.     Smith presented to the emergency room with neck pain and swelling

following Rodriguez’s collision with her vehicle.           Dr. Walrod treated and released Smith

with a prescription for a muscle relaxer. Based on this evidence in the record, we

conclude that it sufficiently supports a finding that Rodriguez’s collision with Smith’s

vehicle caused bodily injury,2 which satisfies the second prong of the charged offense.

        The evidence also supports the jury’s finding that Rodriguez’s car was a “deadly

weapon” for the purposes of the charged offense.                    A deadly weapon is defined as

“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(17)(B) (West 2011). Here, video

evidence of Rodriguez’s operation of his vehicle and testimony from Officers Leet and

Moore, as well as from Smith, allowed for a finding that the manner in which Rodriguez


        2
         “Bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” See
TEX. PENAL CODE ANN. § 1.07(a)(8) (West 2011).

                                                     8
used his vehicle was in such a way that was capable of causing serious bodily injury.

See Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) (en banc) (holding

that “[a] motor vehicle, in the manner of its use or intended use, is clearly capable of

causing death or serious bodily injury and therefore can be a deadly weapon.”).

      Finally, the fact that the trial court submitted the lesser-included offense of assault

to the jury does not show insufficient evidence to support the aggravated assault charge.

The jury was within its province to give little or no weight to Rodriguez’s testimony and

convict him of the original charge over the lesser-included one based upon the totality of

the evidence.   See Brooks, 323 S.W.3d at 899.

      Accordingly, we overrule Rodriguez’s sufficiency challenge.

                       III. CRUEL AND UNUSUAL PUNISHMENT

      In his second issue, Rodriguez contends that the his punishment of two years for

the evading detention with a vehicle charge and twenty years for the aggravated assault

with a deadly weapon is cruel and unusual under the Eighth Amendment of the United

States Constitution and should therefore be reversed and remanded for a new trial.

A.    Discussion

      As a pre-requisite to presenting an issue on appeal, the record must show that:

      (1) The complaint was made to the trial court by a timely request, objection or
          motion that:

          (A) Stated the grounds for the ruling that the complaining party sought from the
              trial court with sufficient specificity to make the trial court aware of the
              complaint, unless the specific grounds were apparent from the context; and

          (B) Complied with the requirements of the Texas Rules of Evidence or the
              Texas Rules of Civil or Appellate Procedure.

See TEX. R. APP. P. 33.1(a).


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        Here, the record shows that Rodriguez chose to represent himself pro se during

the punishment stage of his trial. After the jury assessed punishment on Rodriguez, no

subsequent request, objection, or motion was made to the trial court that stated that the

punishment was cruel and unusual pursuant to the Eighth Amendment of the United

States Constitution.         Accordingly, we conclude that this issue was not properly

preserved for our review.        See TEX. R. APP. P. 33.1(a); Keith v. State, 975 S.W.2d 433,

433–34 (Tex. App.—Beaumont 1998, no pet.).3 Rodriguez’s second issue is overruled.

                                            IV. CONCLUSION

        We affirm the trial court’s judgments.




                                                                   __________________________
                                                                   GINA M. BENAVIDES,
                                                                   Justice

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

Delivered and filed the
17th day of May, 2012.




        3
            While Rodriguez waived this issue on appeal, we note that Rodriguez’s punishments were
nonetheless within the statutory guidelines of the Texas Penal Code. See TEX. PENAL CODE ANN. §§ 12.35
(state-jail felony punishment); 12.33 (second-degree felony punishment) (West 2011). Thus, assuming
that Rodriguez properly preserved his complaint for appeal, we conclude that the sentences imposed were
neither cruel nor unusual under the Eighth Amendment of the United States Constitution. See Nunez v.
State, 110 S.W.3d 681, 682 (Tex. App.—Corpus Christi 2003, no pet.) (internal citations omitted) (holding
that “punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or
unusual.”).

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