                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00240-CR

EDDY JAMES HOWARD,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F47059


                          MEMORANDUM OPINION


      Eddy James Howard was charged with and convicted of two counts of

aggravated assault with a deadly weapon and sentenced to 45 years in prison for each

count. TEX. PENAL CODE ANN. § 22.02 (West 2011). The charges stemmed from Howard

driving his Chevy Astro van into a convenience store.         Because the evidence was

sufficient to support Howard’s conviction for each count and because the jury charge

was not erroneous, the trial court’s judgment is affirmed.
SUFFICIENCY OF THE EVIDENCE

       In his first two issues, Howard contends the evidence is insufficient to support

his conviction for both counts of aggravated assault with a deadly weapon. Specifically

he contends the evidence is insufficient to prove he acted with intent to cause bodily

injury to Laura Schreiner (Count I) or to prove that he placed Bikram Ban in fear of

imminent bodily injury (Count II).

       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


Howard v. State                                                                            Page 2
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

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).

COUNT I

       Howard was charged with intentionally, knowingly, or recklessly causing

Schreiner bodily injury. He does not contest that Schreiner sustained bodily injury.

Instead, he contends the evidence is insufficient to prove that he acted with intent to

cause serious bodily injury because there was no evidence he knew Schreiner was in or

around the convenience store.        Howard further contends that the evidence is

insufficient to prove that he acted with intent to cause serious bodily injury because

there was “substantial evidence” that the collision was accidental and not intentional or

reckless. As proof of this theory, Howard points to testimony that he may have applied

the brakes before the collision, he was known to pass out for no reason, and he may

have been intoxicated.




Howard v. State                                                                     Page 3
       Several witnesses saw Howard exit the Elk Food Mart parking lot in his Chevy

Astro van, squealing his tires, making a U-turn down the wrong lane of the street, and

plowing into the side of the store. The witnesses also stated that Howard made no

attempt to stop before hitting the store. Although on cross-examination, witnesses said

Howard could have applied the brakes before the collision, they all still believed that he

did not do so.

       Laura Schreiner testified that Howard was leaving the Food Mart at the time she

approached the register. As she was checking out and looking at lottery tickets, she

heard tires squealing around the store. She then saw Howard in his vehicle, heading

toward the store. It was the last thing she remembered until waking up in the rubble of

the store. Schreiner had several cuts and bruises all over her body as a result of

Howard’s actions.

       And, although Howard produced testimony from fellow jail inmates that he had

been known to pass out in the jail for no reason, the jail nurse had no verified reports

that this had happened. Further, although several witnesses thought Howard was

intoxicated, voluntary intoxication is not a defense to the commission of a crime. TEX.

PENAL CODE ANN. § 8.04(a) (West 2011).

       Because we presume the jury resolved conflicts in the testimony in favor of the

prosecution, and the jury is the judge of the credibility of the witnesses, a rational jury

could have found that Howard, at the very least, recklessly caused Schreiner bodily


Howard v. State                                                                      Page 4
injury. Therefore, reviewing the evidence in the light most favorable to the verdict, we

find the evidence sufficient to support Howard’s conviction in Count I, aggravated

assault with a deadly weapon. Howard’s first issue is overruled.

COUNT II

       Howard further contends the evidence is insufficient to prove that he placed

Bikram Ban, the store clerk, in fear of imminent bodily injury, because Ban had not been

frightened when Howard came into store demanding money and free gas; there was no

testimony that Ban felt threatened or placed in fear of imminent bodily injury when

Howard left the store; Ban “didn’t have any thought” when Howard hit the building;

and there was no evidence of intent because Ban did not perceive a threat.

       Testimony showed that Howard had been a regular customer at the Food Mart

for a few months prior to the offense. When he demanded money and free gas from

Ban a short time before the collision, Howard was laughing and Ban thought he was

joking. Ban ultimately gave Howard $2 for gas just to get him to leave. Ban saw

Howard start his van and then drive on the wrong side of the road toward the store.

According to Ban, Howard was driving very fast, about 70 to 80 miles per hour, as he

approached the wall and window behind Ban. Ban said Howard was approaching so

fast that Ban could not move. When asked what his thoughts were before the collision,

Ban said, “I didn’t have any thought. He just came and hit the building.” The collision




Howard v. State                                                                   Page 5
sent Ban “flying.” He landed by the door and was stuck in a pile of debris and glass.

He felt scared. Ban stated that now, he feels scared when anyone knocks on the door.

          The crux of Howard’s argument in this issue is that the evidence was insufficient

because Ban did not perceive a threat. However, the Court of Criminal Appeals has

said that there is no statutory requirement that a victim must instantaneously perceive

or receive the threat of imminent bodily injury as the actor is performing it. Olivas v.

State, 203 S.W.3d 341, 350-351 (Tex. Crim. App. 2006). Ban saw Howard traveling in his

van at a high rate of speed toward the store where Ban was standing. Although Ban did

not have any thoughts as Howard sped toward him, he felt scared and still felt scared at

the time of the trial. A rational jury could have inferred that Ban was threatened, that

Ban perceived the threat, and that Ban was placed in fear as a result of the perceived

threat.

          Thus, after reviewing the evidence in the light most favorable to the verdict, we

find the evidence sufficient to support Howard’s conviction in Count II, aggravated

assault with a deadly weapon. Howard’s second issue is overruled.

CHARGE ERROR

          In his third and fourth issues, Howard contends that, in the charge to the jury,

the trial court erred by failing to limit the definitions of the terms “intentionally” and

“knowingly” to the result of the conduct alleged in Count I and to the nature of the

conduct alleged in Count II. Howard did not object to the charge on these bases. Thus,


Howard v. State                                                                      Page 6
unobjected-to jury charge error will not result in reversal of a conviction in the absence

of "egregious harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

       The court’s charge to the jury included the complete definitions of

“intentionally” and “knowingly:”

              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 to cause the result.
              A person acts knowingly, or with knowledge, with respect to the
       nature of 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.

See also TEX. PENAL CODE ANN. § 6.03(a) & (b) (West 2011).

       Howard argues that because the offense of aggravated assault causing bodily

injury is a result-of-conduct offense and the offense of aggravated assault by threat is a

nature-of-conduct offense, a charge that defines the culpable mental state in relation to

both the nature of the conduct and the result of the conduct rather than limiting the

definition to the result only or to the nature only, depending on the offense, is

erroneous. Generally, Howard is correct. See Landrian v. State, 268 S.W.3d 532, 537 (Tex.

Crim. App. 2008) (aggravated assault-bodily injury is result-of-conduct offense); Johnson

v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref’d) (same); Guzman v. State,

988 S.W.2d 884, 887 (Tex. App.—Corpus Christi 1999, no pet.) (assaultive behavior by

threat is nature-of-conduct offense). See also Cook v. State, 884 S.W.2d 485, 491 (Tex.



Howard v. State                                                                       Page 7
Crim. App. 1994) (“It is error for a trial judge to not limit the definitions of the culpable

mental states as they relate to the conduct elements involved in the particular offense.”).

        However, in this case, both definitions were appropriate because both types of

conduct were charged. Thus, the trial court did not err,1 and we overrule Howard’s

third and fourth issues.

CONCLUSION

        Having overruled each issue on appeal, we affirm the judgment of the trial court.




                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 8, 2014
[CRPM]




1Even if it was error, Howard did not suffer egregious harm. In this case, the trial court limited the scope
of the definitions in the application paragraph pertaining to the alleged conduct. Thus, when those terms
are viewed in their factual context, it becomes apparent which conduct element applies to which element
of the offense. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995).

Howard v. State                                                                                      Page 8
