                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00389-CR

BOBBY LYNN KEENE,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2014-1063-C2


                           MEMORANDUM OPINION

       Bobby Lynn Keene was convicted of Aggravated Assault of a Public Servant

(enhanced) (Count I) and Evading Arrest or Detention with a Vehicle (enhanced) (Count

II), see TEX. PENAL CODE ANN. §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B); 38.04 (West 2011), and

sentenced to 40 years and 20 years in prison, respectively, to be served concurrently. Two

judgments were signed, one for each count. Because the evidence is sufficient to support

Keene’s conviction for aggravated assault (relating to Count I) and the evidence is

sufficient to show Keene had been previously convicted of deadly conduct (relating to
Count II), the trial court’s judgments are affirmed.

SUFFICIENCY OF THE EVIDENCE

        In his first issue, Keene argues the evidence is legally insufficient to find him guilty

of aggravated assault on a peace officer as alleged in the indictment. Specifically, Keene

argues that the evidence is insufficient to prove there was an imminent threat to Steven

Stahl or Kenneth Witt, the officers alleged in the indictment.

LAW

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). 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." Jackson, 443 U.S. at 319. "Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

Keene v. State                                                                              Page 2
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well

established that the factfinder is entitled to judge the credibility of witnesses and can

choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        A person commits an aggravated assault on a public servant if the person

intentionally or knowingly threatens another with imminent bodily injury, uses or

exhibits a deadly weapon during the commission of the assault, and the assault is

committed against a public servant lawfully discharging an official duty. TEX. PENAL

CODE ANN. §§ 22.01(a)(2); 22.02(a)(2), (b)(2)(B) (West 2011).            A person commits

threatening conduct not only when the actor actually causes fear in another, but also (1)

when he creates an unacceptable risk that another may be placed in fear, and (2) when he

increases the likelihood that he will carry through on a threat and cause a physical injury.

Olivas v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006). "Imminent" bodily injury

requires a present, not a future, threat. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim.

App. 1989).

        Keene takes issue with whether Deputies Steven Stahl or Kenneth Witt were

threatened with imminent bodily injury by Keene with the knife, concluding that Deputy

Eubank, who was not named as a victim in the indictment, was the only deputy so



Keene v. State                                                                           Page 3
threatened.

Evidence

        Keene was sitting in a pickup on the side of the road with the driver’s side window

broken out. When a Navarro County Sheriff’s deputy turned his patrol unit around to

check on Keene, Keene sped off in the pickup. The deputy pursued Keene with lights

and siren activated, but Keene would not stop. Keene was pursued for over 30 miles. He

drove over two sets of spikes and continued driving on the rims of his wheels. In

McLennan County, his vehicle was eventually bumped by law enforcement and it came

to a rest in a median.

        Personnel from various law enforcement agencies surrounded Keene’s vehicle.

Deputies Steven Strahl, Kenneth Witt, and Chris Eubank approached the vehicle with

their weapons drawn.      The three walked close enough to the vehicle that Eubank

attempted to open the driver’s side door. It would not open. As Eubank reached in

through the broken out window to try to unlock the door, Keene pulled out a large knife

made from what looked to be a horseshoe rasp, ground down or hammered out to a point

on one end which was sharpened and a crude handle on the other end. Keene held it at

a 45 degree angle, pointed upwards toward the area where the door window had been.

Deputy Strahl testified that Keene made a motion “like this” towards the three deputies.

All three deputies jumped back from the vehicle immediately. Both Strahl and Eubank

felt Keene was threatening them and Deputy Witt. Eubank felt Keene was threatening

the three deputies with imminent bodily injury. Eubank disagreed with Keene’s counsel

and asserted that if Keene was holding the knife “like this,” that action would be

Keene v. State                                                                       Page 4
menacing. Eubank also asserted that they were in danger because Keene could have

thrown the knife or could have done a lot of things with the knife since the deputies were

so close. The in-car video of the stop shows that the three deputies were very close to the

pickup when all three suddenly jumped back.

Application

        The knife used was introduced into evidence and has been personally examined

by the Court as it was by the jury. The knife is large. It was made from a heavy file or

rasp. It weighs just less than two pounds (30.9 oz.). It has a sharpened point with a

crudely ground dull edge down each side, somewhat like a dagger. Overall, it measures

over 14 inches long. It has finger grips ground into one side and a lead weight butt to

cover the former point of the file’s tang which is now part of the handle and the knife

butt.

        There was ample testimony that Keene’s actions with the knife placed the deputies

in fear not only for themselves, individually, but also for each of the deputies. It makes

no difference that Eubank was the closest to Keene at the time Keene pulled out the knife

but was not identified in the indictment as a victim. Further the evidence indicates the

threat was a present threat, not a future one. And although we cannot tell from the

testimony how Keene was holding the knife, the jury was able to interpret what “like

this” meant, and we can infer that they believed Keene held the knife in an imminently

threatening manner toward the deputies. This is particularly evident from their uniform

reaction shown on the video when the knife was initially brandished.

        Accordingly, reviewing the evidence under the established standard of review, we

Keene v. State                                                                       Page 5
find the evidence sufficient to support Keene’s conviction as charged. Keene’s first issue

is overruled.

PRIOR CONVICTION

           In his second issue,1 Keene asserts that the evidence is insufficient to establish

Keene had been previously convicted of deadly conduct in case number 31129 in the

County Court for Fannin County, Texas. Specifically, Keene argues the State did not

prove that he was the person named in the judgment of conviction.

           To establish a defendant has been convicted of a prior offense, the State must prove

beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is

linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

However, no specific document or mode of proof is required to prove these two elements.

Id.     Any type of evidence, documentary or testimonial, might suffice.           Id. at 922.

Ultimately, the trier of fact looks at the totality of the evidence admitted to determine 1)

whether there was a previous conviction, and 2) whether the defendant was the person

convicted. If these two elements can be found beyond a reasonable doubt, then the

various pieces of evidence used are necessarily sufficient to prove a prior conviction. See

id. at 923.

           Here, the State introduced State’s Exhibit 16 into evidence during the punishment

phase of the trial to show that Keene had been previously convicted of the offense of

deadly conduct. The exhibit contained certified copies of a complaint, information,




1   This is labeled as issue one in Keene’s supplemental brief.

Keene v. State                                                                           Page 6
stipulation of evidence, various waivers and an order accepting those waivers, judgment

of guilt with terms of community supervision, motion to revoke community supervision,

and motion to withdraw motion to revoke community supervision. Although there were

no fingerprints affixed to any of the documents within the exhibit, most of the documents

contained Keene’s full name and one included his date of birth and social security

number. Further, the sponsoring witness of the exhibit testified that the information on

these documents was the exact same information as was contained in other documents

relating to Keene which the witness examined.

        Keene complains that the evidence is insufficient because most of the identifying

information is contained on the motion to revoke which was ultimately dismissed by the

trial court. This is of no consequence. The important issue is whether a reasonable trier

of fact could find beyond a reasonable doubt that 1) the alleged prior conviction existed

and 2) this conviction is linked to appellant. See Flowers v. State, 220 S.W.3d 919, 924 (Tex.

Crim. App. 2007). After reviewing all the evidence submitted, we find a reasonable trier

of fact could find beyond a reasonable doubt that a conviction for deadly conduct existed

and that Keene was linked to the conviction.

        Accordingly, the evidence is sufficient to establish Keene was the person convicted

of deadly conduct, and Keene’s second issue is overruled.

CONCLUSION

        Having overruled each issue for review, we affirm the trial court’s judgments.


                                           TOM GRAY
                                           Chief Justice

Keene v. State                                                                          Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 3, 2017
Do not publish
[CRPM]




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