Affirmed and Memorandum Opinion filed April 19, 2016.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-15-00030-CR

                        MIGUEL MACIAS, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee

                  On Appeal from the 427th District Court
                           Travis County, Texas
                  Trial Court Cause No. D-1-DC-13-30173

                 MEMORANDUM OPINION

      A jury convicted Appellant, Miguel Macias, of aggravated assault against a
public servant. The jury sentenced Appellant to 32 years in prison. Appellant
brings three issues on appeal complaining the evidence is insufficient to show
Appellant used or exhibited a deadly weapon, that the trial court abused its
discretion in permitting an officer to give his opinion regarding the crash
investigation, and the evidence is insufficient to support Appellant’s conviction.1
We affirm.

                                       I. BACKGROUND

       On August 31, 2013, Officer Shane Cunningham of the Austin Police
Department, responded to a suspected burglary at the Johnson Supply Company,
located in Austin, Texas. As Officer Cunningham approached the site in a marked
police patrol unit, he noticed a suspect loading items into the backseat of a vehicle
parked next to the building driven by Appellant. The officer activated his overhead
lights and drove up to the scene to perform a modified felony car stop.
       Upon seeing the officer, the vehicle driven by Appellant backed up and hit a
dumpster. Appellant’s vehicle then pulled forward, in a possible attempt to escape,
and struck the front of the officer’s patrol car. After being struck, the officer
partially exited his vehicle with one foot on the ground and one foot in his car and
drew his firearm. Appellant backed up slightly, and in another possible attempt to
escape, drove forward, striking the officer’s patrol car for a second time. The
officer then yelled for the suspects to put their hands up. Instead of heeding the
officer’s commands, Appellant accelerated, pushing the officer’s patrol car
backward. Immediately upon feeling his patrol car move backward, and still being
only half-way in his vehicle, Officer Cunningham fired. As his car moved
backward, Officer Cunningham fired 15 consecutive shots toward Appellant before
the back of his patrol car struck a tree, bringing both vehicles to a halt.



       1
         This appeal was transferred to the Fourteenth Court of Appeals from the Third Court of
Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to
another, the transferee court must decide the case in accordance with the precedent of the
transferor court under the principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court. See Tex. R. App.
P. 41.3

                                                2
                                    II. ANALYSIS

A.    The Evidence Is Legally Sufficient to Prove that Appellant’s Vehicle
      Was Used or Exhibited as a Deadly Weapon

      In Appellant’s first point of error, Appellant contends that the evidence is
insufficient to prove that his vehicle was used or exhibited as a deadly weapon.
      In conducting a legal sufficiency review, we ask whether, after viewing all
the evidence in the light most favorable to the adjudication, any rational trier of
fact could have found the essential fact beyond a reasonable doubt. See Johnson v.
State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Griffin v. State, 614 S.W.2d 155,
158–59 (Tex. Crim. App. 1981); Skillern v. State, 890 S.W.2d 849, 879 (Tex.
App.—Austin 1994, pet. ref’d). We do not realign, disregard, or weigh the
evidence. Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no
pet.). The trier of fact has the responsibility of weighing all the evidence, resolving
evidentiary conflicts, and drawing reasonable conclusions from the evidence.
Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Essentially, we must
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.” See Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim.
App. 2007).
      The Texas Code of Criminal Procedure “authorizes a deadly weapon finding
upon sufficient evidence that a defendant ‘used or exhibited’ a deadly weapon
during the commission of or flight from a felony offense.” See Drichas v. State,
175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (citing Tex. Crim. Proc. Code Ann.
art. 42.12 § 3g(a)(2) (West Supp. 2015)). 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.” See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2015).


                                          3
“The trier of fact determines whether an object has been used as a deadly weapon
during the commission of a felony-offense.” See Johnston v. State, 115 S.W.3d
761, 762 (Tex. App. —Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App.
2004). In this case, the jury answered the deadly weapon finding affirmatively.
      “Objects that are not usually considered dangerous weapons may become so,
depending on the manner in which they are used during the commission of an
offense.” Drichas, 175 S.W.3d at 798 (citing Thomas v. State 821 S.W.2d 616, 620
(Tex. Crim. App. 1991)). “A motor vehicle may become a deadly weapon if the
manner of its use is capable of causing death or serious bodily injury.” Id. (citing
Ex Parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) (emphasis
added)). “Specific intent to use a motor vehicle as a deadly weapon is not
required.” Id. (citing McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.
2000)).
      Appellant relies on the Court of Criminal Appeals’ decision in Cates v.
State, 102 S.W.3d 735 (Tex. Crim. App. 2003) to support his argument. In Cates,
the driver of a truck was convicted for failing to stop and render aid to a pedestrian
whom he killed after striking the pedestrian with his car. Id. at 736–37. The Court
had to decide whether Cates used or exhibited his truck as a deadly weapon after
striking the pedestrian, since he was convicted of failing to stop and render aid. Id.
at 737.
      The Court held that the testimony of two witnesses, stating they drove
between 85 and 90 miles per hours to catch up with Cates, was no evidence of how
fast Cates was driving. Id. at 738. The Court noted that no other cars were on the
road and the truck stopped at a traffic light, refuting any conclusion that Cates
drove dangerously. The Court further noted that the “chase” ended quickly, and
that there was “no evidence in [the] record that anyone was actually endangered by
the truck while it left the scene of the accident.” Id. The Court stated, “[t]o sustain
                                          4
a deadly weapon finding, there must be evidence that others were actually
endangered, not merely a hypothetical potential for danger if others had been
present.” Id. (emphasis added).
      Appellant argues that, like in Cates, there is no evidence that anyone was put
in actual danger. Appellant states that the officer’s airbags never deployed, that the
officer may not have had his car in park or the emergency brake employed when
the patrol car was pushed back, and the car was only pushed back for a few
seconds and thus, there was only a hypothetical potential for danger, no actual
danger.
       We disagree that the potential for danger was merely hypothetical. The
officer’s dash cam footage amply supports an inference that the manner in which
Appellant operated the vehicle rendered it capable of causing serious bodily injury.
It shows the officer drive up on the suspect vehicle in a large, otherwise empty
parking lot. After backing the car up a small amount, Appellant drove the vehicle
directly into the officer’s vehicle. The officer’s dash cam footage shows
Appellant’s vehicle striking the officer’s vehicle, continuing to move forward
while a revving engine is audible. Further, when asked what concerned him about
his patrol car being pushed back by Appellant’s car, the officer testified:
      Well, at this point I’m moving backwards and not in control of my
      vehicle and the other vehicle is not stopping. I’m basically riding with
      an opened car door. I’m riding the vehicle backwards. If I fall out of
      this car now, I could get rolled over under my car, my door, his car.
      There are all kinds of bad things that could happen.

      Officer Cunningham considered Appellant to be an immediate threat and
shot at Appellant to stop the threat. However, Appellant’s car continued to push
Officer Cunningham’s car backward until it collided with a large tree. Thus, the
State presented evidence from which the jury could have found that Appellant’s
car posed an actual danger to Officer Cunningham, not merely a hypothetical
                                          5
danger.
      The evidence presented demonstrates that Appellant’s car was capable of
causing death or serious bodily injury to Officer Cunningham. We find the
evidence in this case, viewed in the light most favorable to the jury finding,
supports the conclusion that a rational trier of fact could have found that
Appellant’s vehicle was used or exhibited as a deadly weapon. Appellant’s first
point of error is overruled.

B.    The Alleged Error in Permitting Officer Jones to Give His
      “Acceleration” Opinion Was Neither Preserved Nor Harmful

       In Appellant’s second point of error, he contends that the trial court abused
its discretion in permitting Officer Jones, a crash investigator for the Austin Police
Department, to give his opinion that Appellant accelerated his vehicle toward
Officer Cunningham’s patrol car. Specifically, Appellant argues that because
Officer Jones was not qualified as an expert, his Texas Rule of Evidence 701 lay
opinion on culpable mental state, without personal knowledge, was inadmissible.
See Fairow v. State, 943 S.W.2d 895, 898–99 (Tex. Crim. App. 1997) (holding that
a lay opinion of culpable mental state may be admissible if the proponent
establishes personal knowledge of facts from which an opinion regarding mental
state may be drawn). The State responds that Officer Jones was, in fact, an expert
and, in any event, the alleged error was harmless.

      We first review the testimony complained of and Appellant’s objection in
the trial court. At trial, Officer Jones testified that he is a crash investigator, not an
accident reconstructionist. Officer Jones described his training, including a vehicle
dynamics class. Prior to Officer Jones offering any expert opinion, Appellant’s
counsel objected and argued that “he can give testimony about what he collected
and what the length of the, say, tire marks were or something like that, I don’t

                                            6
think he can give an opinion as to what it was that occurred.” “[I]f he wants to talk
about what he documented at the scene, that’s fine.” But, according to counsel,
Officer Jones does not have “the expertise” to reach conclusions. In response to
defense counsel’s objection to Officer Jones’s testimony, the trial court stated
Jones would be allowed “to testify as to his observations and conclusions based on
his training.”
      However, on appeal Appellant is not arguing that Officer Jones was not
qualified as an accident reconstructionist. Appellant does not argue that Officer
Jones’s training or the vehicle dynamics class he took was insufficient to allow him
to provide Rule 702 expert conclusions based upon his observations—as Appellant
did in the trial court. Instead, relying upon Fairow, Appellant urges the court erred
in allowing Jones to “give his opinion that Appellant accelerated his vehicle
toward Cunningham’s patrol car, implying that Appellant acted intentionally or
knowingly.” Specifically, Appellant points to Officer Jones’s lack of personal
knowledge, and argues that Fairow forbids lay testimony on culpable mental state2
without first establishing some personal knowledge. See id. However, at the trial
court, Appellant did not argue that Officer Jones’s testimony was tantamount to an
opinion on Appellant’s culpable mental state or otherwise complain about the
admissibility of Officer Jones’s testimony under Rule 701.
      We conclude that Appellant has failed to preserve the only evidentiary issue
he brings on appeal: the complaint about Officer Jones’s lack of personal
knowledge to provide a lay opinion under Texas Rule of Evidence 701. This issue
does not comport with his objection before the trial court that Officer Jones lacked

      2
         Appellant concedes, as he must, that Officer Jones never actually testified about
Appellant’s culpable mental state. He simply argues that the acceleration testimony was
improper because it implied culpable mental state. Appellant has not cited and we have not
found any case in which Fairow rendered inadmissible factual testimony from which a jury
might reasonably infer culpable mental state.

                                            7
the knowledge, skill experience, training, or education to provide an opinion on
acceleration from the physical evidence. See Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012) (holding that a complaint on appeal must comport with the
objection made at trial).
          Even if we considered Appellant’s complaint about the admission of Officer
Jones’s testimony, we would conclude that any error in its admission is, under
either theory, harmless. Generally, a violation of the rules of evidence that results
in the erroneous admission of evidence is non-constitutional error and is analyzed
for harm pursuant to Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P.
44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In
conducting an analysis under Rule 44.2(b), we examine the entire proceeding to
determine whether the alleged error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). A criminal conviction should not be overturned for non-
constitutional error if we determine the error did not influence the jury or had but
very slight effect. See Johnson, 967 S.W.2d at 417. If we have “grave doubts”
about whether an error affected the outcome, we must treat the error as if it did.
Webb v. State, 36 S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d).
          Considering factors such as whether the evidence was merely cumulative or
whether the other evidence of guilt was overwhelming, we have previously held
error harmless where the trial court permitted a police officer to testify as to his
opinion of the defendant’s culpable mental state. See Taylor v. State, 774 S.W.2d
31, 35 (Tex. App.—Houston [14th Dist.] 1989, pet ref’d).
          Even if admitting Officer Jones’s testimony about Appellant’s vehicle
accelerating was error, we would conclude, for the same reasons we did in Taylor,
that the error is harmless in light of other evidence on the same subject admitted
                                           8
without objection and the overwhelming evidence of guilt. As outlined above, the
jury was able to view the dash cam footage that shows the entire sequence of
events including Appellant’s vehicle moving toward Officer Cunningham’s
stationary patrol car. Officer Cunningham testified as to what transpired and how
he felt being pushed back by Appellant’s car. Furthermore, Appellant presented
testimony from Dr. Al Yonovitz, an audio expert, to analyze the audio of Officer
Cunningham’s dash cam video. From that dash cam video, Dr. Yonovitz used
“state of the art software” to create an 18-second presentation for demonstrative
purposes.      As part of his testimony, he explained that one segment of his
presentation shows the following: “Appellant hits the dumpster in the back, then
drives forward. He does not stop. Then Officer Cunningham’s car is moving
forward and he does attempt to stop. And the car actually stops about .3 seconds
before the impact. Appellant then accelerates forward. The engine revs and that’s
clearly audible and measurable. And then Officer Cunningham opens his door and
yells get your hands up.” Appellant’s evidence of acceleration toward Officer
Cunningham’s stationary vehicle is the same subject as Officer’s Jones’s.
Therefore, like in Taylor, Officer Jones’s testimony was merely cumulative of
other properly admitted evidence, and the conclusion that Appellant acted
intentionally or knowingly was a reasonable inference given the abundant other
evidence of guilt. Appellant’s second point of error is overruled

C.     The Evidence Is Legally Sufficient to Prove that Appellant Committed
       Aggravated Assault on a Public Servant Intentionally or Knowingly

       In Appellant’s third point of error, Appellant contends that the only evidence
that Appellant acted intentionally3 or knowingly4 came from Officer Jones. We

       3
          The jury charge instructed that, “A person acts intentionally, or with intent, with respect
to the nature of his conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.”

                                                 9
disagree.
       In assessing the legal sufficiency of the evidence to support a criminal
conviction, the reviewing court must consider all the evidence in the light most
favorable to the verdict and determine whether, based on the evidence and
reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Hooper, 214 S.W.3d at 13
(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). When the record
supports conflicting inferences, we presume the jury resolved the conflicts in favor
of the State and therefore defer to that determination. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). In this case, the jury answered the question
whether Appellant acted intentionally or knowingly in the affirmative.
       “Intent may be inferred from circumstantial evidence such as the appellant's
acts, words, and conduct.” Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). Here, Appellant’s intent can be inferred
from his acts and conduct. The jury heard from Officer Cunningham himself when
he provided a description of what happened. Officer Cunningham stated he was
moving backwards while partially in his vehicle, was not in control of his vehicle,
and that Appellant’s vehicle was not stopping as he was being pushed back. In
support of Officer Cunningham’s testimony, the jury watched several different
videos showing Appellant’s car pushing the officer’s patrol car back until hitting a
tree. The video evidence combined with Officer Cunningham’s testimony could
allow a reasonable jury to find the essential elements of aggravated assault against
a public servant beyond a reasonable doubt.

       4
         The jury charge instructed that, “A person acts knowingly, or with knowledge, with
respect to the nature of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or
with knowledge, with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.”

                                              10
      While the Appellant provided evidence that he was just trying to escape and
not injure Officer Cunningham, the jury weighed this evidence against the State’s
evidence. The jury has the responsibility of weighing all the evidence, resolving
any evidentiary conflicts, and drawing reasonable conclusions from the evidence
presented at trial. See Garcia, 57 S.W.3d at 441. In light of the evidence presented
and the reasonable inferences the jury was free to make, we conclude that the
evidence is legally sufficient to show that Appellant committed aggravated assault
against a public servant. Thus, Appellant’s third point of error is overruled.

                                  III. CONCLUSION

      Having overruled all of Appellant’s issues on appeal, we affirm the trial
court’s judgment.




                                        /s/    Ken Wise
                                               Justice


Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                          11
