AFFIRMED; Opinion Filed August 5, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00917-CR

                               MILTON GAFFORD, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 283rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1371212-T

                              MEMORANDUM OPINION
                   Before Chief Justice Wright, and Justices Myers and Evans
                                   Opinion by Justice Evans
       Milton Gafford appeals his conviction for the aggravated assault with a deadly weapon of

his girlfriend, Lillie Spencer. After the trial court found appellant guilty, it assessed punishment,

enhanced by a prior felony conviction, at ten years’ confinement. In two issues, appellant

contends the evidence is legally insufficient to support his conviction. We resolve appellant’s

issues against him and affirm the trial court’s judgment.

                                         BACKGROUND

       Elaine Bailey, Spencer’s sister, testified that on the morning of the assault, she picked up

Spencer at her apartment to give her a ride to work. As Bailey was driving away from the

apartment, she passed a blue sedan in the lane next to her “swerving over toward” her car. The

car was “very close” two times, and Bailey thought it might hit her car. Bailey continued driving
and got onto U.S. 75, and the sedan pulled into a gas station. As Bailey continued on U.S. 75,

she noticed the blue sedan behind her “right up to the rear.” Bailey explained that the sedan was

so close, it was like it was “in [her] back seat.” Again, Bailey was concerned the sedan might hit

her car. The sedan then pulled up along the passenger side of Bailey’s car and swerved toward

Bailey’s car two or three times. Bailey had to swerve her car to avoid being hit, and at that point

called 911. While Bailey was talking with the police, the sedan sped away. Bailey then exited

U.S. 75 to go east on Interstate 30.

       As Bailey and Spencer were passing the Fair Park exit, Bailey noticed the blue sedan was

coming again and asked Spencer who was driving the car. Spencer told Bailey it was appellant,

and that “he’s not going to quit.” According to Bailey, that was when things “really go[t] ugly. .

. [h]e was swerving . . . [and her] tires were squealing, trying to keep him from hitting [her].”

Bailey said it was morning traffic, and “everybody was grouped together” and “going between

50 and 60” miles per hour. After about five minutes, appellant pulled ahead and stopped near an

exit. Bailey stopped her car on the shoulder of the Interstate and confronted appellant because

she felt that he had endangered her life. Appellant got out of the car, attempted to shake hands

with Bailey, and told her he was not trying to kill her. At the same time, he and Spencer were

yelling at one another, and appellant threw what Bailey thought was a water bottle at Spencer.

Spencer threw the bottle back at appellant, and he “jump[ed] in the car and [sped] off.” After

discussing the situation, Bailey and Spencer decided to go the police station and report the

incident. The police officer that took the report made a photograph of a scratch on Bailey’s car

that appellant caused by “easing to the side of the car.”

       Spencer testified she had been in a relationship with appellant for about six years, and she

was living with him at the time of trial. Although appellant usually took her to work, on the

morning of the incident she called her sister and asked for a ride because she was angry with

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appellant. Spencer testified she did not think appellant was endangering her or her sister on the

roadway that morning.      She explained that going to the police was Bailey’s idea and the

statement she gave to the police was not accurate. She only gave the statement because she was

angry with appellant about an earlier argument. She later contacted the District Attorney’s office

and signed an affidavit of non-prosecution.

       After hearing this and other evidence, the trial court found appellant guilty. After a

sentencing hearing, the trial court assessed punishment at ten years’ in prison. This appeal

followed.

                                            ANALYSIS

       In two issues, appellant contends the evidence is insufficient to support his conviction for

aggravated assault or that he used a motor vehicle as a deadly weapon. When reviewing a

challenge to the sufficiency of the evidence, we examine all of the evidence in the light most

favorable to the verdict and determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (U.S. 1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Lucio, 351 S.W.3d at 894. And, the trial court, as the trier of fact in a bench trial, is the

sole judge of the credibility of the witnesses and the weight to be given their testimony.

Goodwin v. State, 376 S.W.3d 259, 264 (Tex. App—Austin 2012, pet ref’d). Therefore, we

presume the court resolved any conflicting inferences and issues of credibility in support of the

judgment. Id.

       To support appellant’s conviction for aggravated assault with a deadly weapon, the State

was required to prove beyond a reasonable doubt that appellant intentionally or knowingly

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threatened Spencer with imminent bodily injury and that appellant used or exhibited a deadly

weapon during the commission of the assault. See TEX. PENAL CODE ANN. §§ 22.001(a)(1);

22.02(a)(2) (West 2011 & Supp. 2014). A threat may be communicated by action or conduct as

well as words. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984).

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

causing death or serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp.

2014). A motor vehicle may become a deadly weapon if the manner of its use is capable of

causing death or serious bodily injury. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.

App. 2005). Proof that a defendant possessed a specific intent to use a motor vehicle as a deadly

weapon is not required. Id. Rather, it is the manner in which the vehicle was used, considering

the surrounding circumstances, that dictate whether the vehicle is “capable” of causing death or

serious bodily injury. Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009). A deadly

weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that

another motorist was on the highway at the same time and place as the defendant when the

defendant drove in a dangerous manner. Drichas, 175 S.W.3d at 799.

       Viewed in the light most favorable to the verdict, the evidence shows that appellant

followed Bailey and Spencer in his car for several miles. He swerved toward Bailey’s car on

several occasions in traffic on a four-lane street, a highway, and an interstate, causing her to

swerve to keep him from hitting her car. Bailey testified that she thought her life was in danger

because of appellant’s driving, and called 911. While on Interstate 30, Bailey was driving in

heavy traffic, going between 50 and 60 miles per hour.       She and Spencer later reported the

incident to the police. Although Spencer testified that the version of events she told the police

immediately after the incident was not true, appellant was not driving as aggressively as

portrayed by Bailey, and that Spencer was not afraid, the trial court was free to believe Bailey’s

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version of the events and disbelieve Spencer’s testimony at trial. After reviewing the record, we

conclude a reasonable fact finder could determine that appellant intentionally or knowingly

threatened Spencer with imminent bodily injury and that appellant used his motor vehicle in a

way that was capable of causing serious bodily injury or death. Thus, we conclude the evidence

is legally sufficient to support appellant’s conviction for aggravated assault and that he used a

motor vehicle as a deadly weapon. We resolve appellant’s two issues against him.

       Accordingly, we affirm the trial court’s judgment.




                                                    /David W. Evans/
                                                    DAVID EVANS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140917F.U05




                                              –5–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MILTON GAFFORD, Appellant                          On Appeal from the 283rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00917-CR        V.                       Trial Court Cause No. F-1371212-T.
                                                   Opinion delivered by Justice Evans. Chief
THE STATE OF TEXAS, Appellee                       Justice Wright and Justice Myers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of August, 2015.




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