                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00001-CR


DARRIL HAGGER KARL, JR.                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1396699D

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                           MEMORANDUM OPINION1

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      Appellant Darril Hagger Karl, Jr. appeals his convictions for aggravated

assault on a public servant and for evading arrest. In his first and second points,

appellant contends that the evidence fails to prove a fact alleged in the

indictment and is therefore insufficient to support his conviction for aggravated

assault. In his third point, he contends that the evidence is insufficient to prove

      1
          See Tex. R. App. P. 47.4.
that his truck qualified as a deadly weapon by his use or intended use of it. We

affirm.

                               Background Facts

      A grand jury indicted appellant with aggravated assault on a public servant

(by causing bodily injury and using or exhibiting a deadly weapon) and with

evading arrest.2 With regard to the aggravated assault count, the indictment

alleged that appellant intentionally or knowingly caused bodily injury to a police

officer, Ernesto Tamayo, by “STRIKING HIM WITH [APPELLANT’S] VEHICLE.”

Concerning the evading arrest count, the indictment alleged that appellant used a

vehicle to evade Officer Tamayo while knowing that Officer Tamayo was

attempting to detain him. The indictment contained a paragraph alleging that

appellant had been previously convicted of two felony offenses.

      Appellant received appointed counsel, chose the trial court to assess his

punishment in the event of his conviction, and pled not guilty to both charges in

front of a jury. The jury received evidence that in December 2014, while several

police officers were attempting to arrest a suspect on a murder warrant,

appellant, who was driving a truck containing the suspect, attempted to evade




      2
       See Tex. Penal Code Ann. §§ 22.01(a)(1), 38.04(a) (West Supp. 2016),
§ 22.02(a)(2), (b)(2)(B) (West 2011).


                                        2
the police and eventually rammed Officer Tamayo’s vehicle before crashing into

a brick wall.3

      After the parties completed their presentations of evidence and arguments,

the jury found appellant guilty of both offenses. At punishment, the trial court

found the enhancement allegation in the indictment to be true and sentenced

appellant to thirty-five years’ confinement on each count. The court ordered the

sentences to run concurrently and entered affirmative deadly weapon findings in

the judgments for both counts. Appellant brought this appeal.

                             Evidentiary Sufficiency

      In all three points, appellant argues that the evidence is insufficient to

support his convictions. He contends in his first two points that the evidence is

insufficient because of a variance between the indictment’s language and the

evidence at trial with respect to his aggravated assault conviction,4 and he

asserts in his third point that the evidence is insufficient to prove that his truck

was a deadly weapon by his use or intended use of it.




      3
        According to another officer involved in the chase, this collision “set off
every air bag in [Officer Tamayo’s] vehicle and completely disabled further
control of that vehicle.” Officer Tamayo testified that the crash caused pain to his
left arm, left shoulder, and face.
      4
       Appellant argues in his first point that the trial court erred by denying his
motion for a directed verdict. This argument is a challenge to the sufficiency of
the evidence to support his conviction. See Dominguez v. State, 355 S.W.3d
918, 921 (Tex. App.—Fort Worth 2011, pet. ref’d) (mem. op.).


                                         3
      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).         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; Murray v. State, 457 S.W.3d 446,

448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).            To determine

whether the State has met its burden under Jackson to prove a defendant’s guilt

beyond a reasonable doubt, we compare the elements of the crime as defined by

the hypothetically correct jury charge to the evidence adduced at trial. Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see Crabtree v. State, 389

S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime

are determined by state law.”).

Alleged variance

      In his first two points, with respect to his aggravated assault conviction,

appellant contends that there is a variance between the indictment’s language

and the proof at trial and that the State therefore “failed to prove an essential

element.” Specifically, he argues that the evidence is insufficient to support his

conviction because while the indictment alleged that he caused injury to Officer

Tamayo by striking him with his truck, the evidence showed that he caused injury


                                          4
to Officer Tamayo by striking Officer Tamayo’s car with his truck. He contends,

“The State was required to prove beyond a reasonable doubt what the State

alleged in the indictment: that [appellant’s] vehicle actually hit Ernesto Tamayo.

The State only proved that [appellant’s] vehicle hit Ernesto Tamayo’s vehicle.”5

      A person commits aggravated assault by intentionally or knowingly causing

bodily injury to another while using or exhibiting a deadly weapon. See Tex.

Penal Code Ann. §§ 22.01(a)(1), .02(a)(2).        Recently, we held that in an

assaultive offense, the manner and means of causing a victim’s injury are not

essential elements of an offense that are required to be included in a

hypothetically correct jury charge. Guzman v. State, No. 02-14-00297-CR, 2015

WL 6664471, at *5 (Tex. App.—Fort Worth Oct. 29, 2015, no pet.) (mem. op., not

designated for publication). In reaching that conclusion, we stated,

      Several courts have held that the manner and means of the bodily
      injury alleged is not an essential element of an assaultive offense
      and therefore is not included in the hypothetically correct jury
      charge. Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.—El Paso
      2009, no pet.); Rodriguez v. State, 274 S.W.3d 760, 767 (Tex.
      App.—San Antonio 2008, no pet.); Phelps v. State, 999 S.W.2d 512,
      516 (Tex. App.—Eastland 1999, pet. ref’d) . . . . A variance between
      the manner and means alleged and the actual manner and means
      used does not preclude a conviction. Thomas, 303 S.W.3d at 333.
      Even though the State may include the manner and means in the
      indictment, it will be disregarded in a hypothetically correct jury
      charge. See Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim.

      5
        Appellant unsuccessfully sought a directed verdict on this theory in the
trial court. We will assume without deciding that the difference between hitting
Officer Tamayo’s person as opposed to his car constitutes an actual variance
between pleading and proof, and we will confine our analysis to whether any
such variance was material.


                                        5
      App. 2012) (holding variance immaterial in aggravated assault case
      when indictment alleged that the defendant hit the victim and twisted
      her arm “with his hand” and evidence showed that the defendant
      threw the victim against a wall); Thomas, 303 S.W.3d at 333 (holding
      that variance in the manner and means alleged—striking the victim
      with the defendant’s hand—and the actual manner and means
      used—pushing the victim—was immaterial); Botello v. State, No. 08-
      04-00127-CR, 2005 WL 2044667, at *2–3 (Tex. App.—El Paso Aug.
      25, 2005, pet. ref’d) (not designated for publication) (holding that
      variance in the manner and means alleged—striking the victim’s
      head against a door frame—and the actual manner and means
      used—pushing the victim—was immaterial); Phelps, 999 S.W.2d at
      518 (holding that the fact that the State did not present evidence of
      the manner and means alleged—striking the victim in the head with
      the defendant’s hand—was immaterial where the hypothetically
      correct jury charge would not have included the descriptive phrase
      “with his hand”).

Id. (emphasis added) (footnote omitted); see also Dawson v. State, No. 08-11-

00203-CR, 2013 WL 4017433, at *4 (Tex. App.—El Paso Aug. 7, 2013, no pet.)

(not designated for publication) (“Several courts including this one have held that

the manner and means of an assault offense is not an essential element of the

offense and as a result, need not be included in the hypothetically correct jury

charge.”); Dunn v. State, No. 05-10-00196-CR, 2011 WL 227715, at *2 (Tex.

App.—Dallas Jan. 26, 2011, pet. ref’d) (not designated for publication)

(concluding that the evidence was sufficient to uphold the defendant’s conviction

even though the proof at trial did not show that the defendant struck the

complainant specifically with his hand or fist—as the indictment alleged—




                                        6
because the manner and means of causing bodily injury are not essential

elements of assault).6

      Relying on the cases cited above, we conclude that any variance between

the indictment and the proof in this case concerning striking Officer Tamayo’s

person or only his car is immaterial because the manner and means of causing

bodily injury in an assault is disregarded in a hypothetically correct jury charge.

See Thomas, 444 S.W.3d at 8; Johnson, 364 S.W.3d at 298; Guzman, 2015 WL

6664471, at *5. Comparing the elements of aggravated assault as defined by the

hypothetically correct jury charge to the evidence adduced at trial, we conclude

that a rational jury could have found the elements beyond a reasonable doubt.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Thomas, 444 S.W.3d at 8. We

overrule appellant’s first two points.

Deadly weapon

      In his third point, appellant argues that the evidence is insufficient to prove

beyond a reasonable doubt that his truck qualified as a deadly weapon by its use

or intended use. He contends that he hit Officer Tamayo’s vehicle “by accident.”

      6
       Appellant cites a case from the court of criminal appeals for the
proposition that when the “State alleges a particular manner and means of the
commission of an offense in the indictment, . . . the State must prove it as alleged
though needlessly pleaded.” But the case that appellant cites does not support
the proposition. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App.
2001) (holding that allegations “giving rise to immaterial variances may be
disregarded in the hypothetically correct charge”); see also Alston v. State, 175
S.W.3d 853, 855 (Tex. App.—Waco 2005, no pet.) (recognizing that in Gollihar,
the court overruled the surplusage rule, including the “needlessly pleaded”
exception to that rule).


                                         7
      The penal code’s definition of “[d]eadly weapon” includes “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) (West Supp. 2016). A

motor vehicle is not a deadly weapon per se, but it may become one if its manner

of use is capable of causing death or serious bodily injury. Brister v. State, 449

S.W.3d 490, 494 (Tex. Crim. App. 2014); see Cates v. State, 102 S.W.3d 735,

738 (Tex. Crim. App. 2003) (“An automobile can be a deadly weapon if it is

driven so as to endanger lives.”). Specific intent to use a motor vehicle as a

deadly weapon is not required. Daniel v. State, 478 S.W.3d 773, 780 (Tex.

App.—Fort Worth 2015, no pet.).

      The jury heard testimony establishing that shortly after three police officers

in separate vehicles began following appellant’s truck, appellant, while carrying

two passengers, sped out of a convenience store parking lot and onto a road.

Once appellant was driving on the road at a high speed, with Officer Tamayo

following directly behind him, he jerked his truck back and forth and then

slammed on his brakes, which required Officer Tamayo to swerve toward the

truck’s passenger side to avoid colliding with it. Appellant increased his speed to

get ahead of Officer Tamayo again, and appellant again began jerking the truck

side to side. Eventually, appellant crossed into a grassy median, and Officer

Tamayo followed him. While in the median, appellant’s truck clipped the front of

Officer Tamayo’s car but did not disable it.




                                         8
      Appellant drove off of the median and back onto the road, and shortly

thereafter, he “ram[med]” the side of Officer Tamayo’s car, running it off the road.

All of the airbags in Officer Tamayo’s car deployed, and his car was disabled. He

suffered pain in his left arm, left shoulder, and face. Shortly thereafter, appellant

lost control of the truck and crashed into a brick wall bordering a home’s back

yard. Most of the brick wall was destroyed where appellant collided with it. Two

officers involved in the case, including Officer Tamayo, testified that appellant’s

ramming of Officer Tamayo’s car appeared to be deliberate.

      Viewing this evidence in the light most favorable to the jury’s verdicts, we

conclude that it is sufficient to show that appellant’s truck qualified as a deadly

weapon by his use and intended use of it.            See Tex. Penal Code Ann.

§ 1.07(a)(17)(B); Cates, 102 S.W.3d at 738; Daniel, 478 S.W.3d at 780; see also

Drichas v. State, 175 S.W.3d 795, 797–98 (Tex. Crim. App. 2005) (holding that a

defendant’s truck qualified as a deadly weapon when he recklessly pulled out of

a gas station parking lot, cut off a police officer and required the officer to slam

on brakes to avoid a collision, fishtailed, and failed to control the truck); Cook v.

State, 328 S.W.3d 95, 100 (Tex. App.—Fort Worth 2010, pet. ref’d) (stating that

in determining whether an automobile qualifies as a deadly weapon, we may

consider whether the defendant sped, drove erratically, and failed to control the

automobile). We overrule appellant’s third point.




                                         9
                                Conclusion

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

judgments.


                                               /s/ Terrie Livingston

                                               TERRIE LIVINGSTON
                                               CHIEF JUSTICE

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

DAUPHINOT, J., dissents without opinion.

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

DELIVERED: September 29, 2016




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