                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00207-CR

DAVID RAY SNEED,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 52nd District Court
                              Coryell County, Texas
                           Trial Court No. Fam 13-21634


                          MEMORANDUM OPINION


      The jury convicted David Ray Sneed of the offense of aggravated assault of a

public servant and assessed punishment at fifteen years confinement and a $5,000.00 fine.

TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). We affirm.

                                Sufficiency of Evidence

      In the first issue on appeal, Sneed argues that the evidence is insufficient to

support his conviction for the offense of aggravated assault of a public servant. 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), cert den’d, 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        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,

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



Sneed v. State                                                                              Page 2
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).

        On February 8, 2014, Sergeant Steve Sands, with the Coryell County Sheriff’s

Department, went to Sneed’s home to serve a felony arrest warrant on Sneed. Sergeant

Sands was driving his marked patrol unit and was dressed in his uniform. When he

arrived at Sneed’s residence, there was a locked gate on the front of the property. Behind

the locked gate, there was a parked truck with its flashing lights activated. Sergeant

Sands made contact with Sneed, and Sneed quickly approached the gate telling Sergeant

Sands to “get the f - - k out of here.” Sergeant Sands told Sneed that he saw the lights

flashing and wanted to make sure he was ok. Sneed responded that he was fine and

again told Sergeant Sands to “get the f - - k out of here.” Sergeant Sands left Sneed’s

residence to avoid a confrontation at that time. He drove to a county road and called for

backup.

        Sergeant Sands met with Sergeant Ronald Schmidt and deputies Randal Hall and

Ron Morgan to develop a plan of action. They decided that Sergeant Schmidt would

drive by Sneed’s house to determine Sneed’s location. Sergeant Schmidt was in his

county vehicle, an unmarked black Dodge pickup. Sergeant Schmidt testified at trial that

he saw Sneed leave his house carrying a long gun and walk at an “aggressive pace”

toward Sneed’s pickup. Sergeant Schmidt stayed outside of Sneed’s property to see if he

left, and the other deputies set up a perimeter around the area so that they could stop

Sneed if he left in his vehicle. Sergeant Schmidt testified that he heard Sneed yell, “you f

- - king pigs, I see you sitting down there. I told you to leave.” Sergeant Schmidt then

Sneed v. State                                                                        Page 3
heard several shots fired. He testified that he knew the shots were fired in his direction

because he could see the muzzle flashes that looked like a small ball. Texas Ranger Jason

Bobo testified at trial and further explained that a person looking in the direction of the

gun would see a round muzzle flash while a person looking to the side of the gun would

see a delineation or more of a line type muzzle flash.

        A person commits the offense of aggravated assault if the person commits assault

as defined in Section 22.01 of the Penal Code and the person uses or exhibits a deadly

weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.01 (a) (2) (West

2011). The offense is a felony of the first degree if the offense is committed:

               (B) against a person the actor knows is a public servant while the
        public servant is lawfully discharging an official duty, or in retaliation or
        on account of an exercise of official power or performance of an official duty
        as a public servant

TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). Sneed argues that the evidence is

insufficient to show that he knew of Sergeant Schmidt’s status as a peace officer or that

he knew he was discharging an official duty.

        Sergeant Sands went to Sneed’s residence in a marked patrol unit and dressed in

uniform to serve a felony warrant.           He left the premises after Sneed became

confrontational. The record indicates that Sneed saw Sergeant Sands dressed in uniform.

Later that evening, the four sheriff deputies were in the area around Sneed’s home to

serve the warrant. Sergeant Schmidt was outside the gate of Sneed’s property where

Sergeant Sands was located earlier that day during the confrontation with Sneed.

Sergeant Schmidt heard Sneed yell, “you f - - king pigs, I see you sitting down there. I


Sneed v. State                                                                           Page 4
told you to leave.” Sergeant Schmidt testified that “pig” is a common derogatory word

for police officers. Sneed then fired shots at Sergeant Schmidt.

        The jury could have drawn the inference that Sneed knew Sergeant Schmidt was

a public servant. See Lucio v. State, 351 S.W.3d 878, 894 (quoting Jackson, 443 U.S. at 319,

99 S.Ct. 2781) (stating that sufficiency standard " 'gives full play to the responsibility of

the trier of fact fairly ... to draw reasonable inferences from basic facts to ultimate facts.'

"). Viewing the evidence in the light most favorable to the verdict, we therefore conclude

that the evidence was sufficient to prove that Sneed knew he was assaulting a public

servant.

        Sneed next contends that the evidence is insufficient to establish that he knew

Sergeant Schmidt was discharging an official duty. Sneed concedes that the record

reflects evidence of the official duties of law enforcement officers; however, he contends

that there is no evidence he knew that Sergeant Schmidt was executing those official

duties at that time. To prove either capital murder or aggravated assault of a peace

officer, the State must show that the peace officer is "acting in the lawful discharge of an

official duty," but the defendant need not know that specific fact. See Mays v. State, 318

S.W.3d 368,383-384 (Tex. Crim. App. 2010). The State must prove the defendant knew

that he was assaulting a peace officer; however, proof that he also knew the officer was

"lawfully discharging an official duty" is unnecessary. Salazar v. State, 643 S.W.2d 953,

956 (Tex. Crim. App. 1983). The evidence is sufficient to support a finding that the

deputies were discharging an official duty. We overrule the first issue.



Sneed v. State                                                                           Page 5
                                       Jury Charge

        In the second issue, Sneed argues that the trial court erred in charging the jury.

Appellate review of alleged jury-charge error involves a two-step process. Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, the court must determine

whether error actually exists in the charge. If error is found, the court must then evaluate

whether sufficient harm resulted from the error to require reversal. Id. at 731-32.

        Sneed complains that the inclusion of the theory of transferred intent in the jury

charge unlawfully enlarged the theory of conviction. The jury was instructed on the law

of transferred intent as follows:

             A person is nevertheless criminally responsible for causing a result
        if the only difference between what actually occurred and what he
        desired contemplated or risked is that a different person or property
        was injured, harmed, or otherwise affected.

The jury was then instructed in the application paragraph as follows:

               Now bearing in mind the following instructions, if you believe from
        the evidence beyond a reasonable doubt that the defendant, David Ray
        Sneed, on or about the 8th day of February, 2013, in the County of Coryell,
        and State of Texas, as alleged in the indictment, did then and there
        intentionally or knowingly threaten Ronald Schmidt with imminent bodily
        injury by discharging a firearm in the direction of Ronald Schmidt, and did
        then and there use or exhibit a deadly weapon, to-wit: a firearm, during the
        commission of said assault, and the Defendant did then and there know
        that the said Ronald Schmidt was then and there a public servant, to-wit: a
        deputy for the Coryell County Sheriff’s Office, and that the said Ronald
        Schmidt was then and there lawfully discharging an official duty, to-wit:
        responding to assist in the execution of an outstanding warrant, then you
        will find the defendant guilty of the offense of aggravated assault on a
        public servant with a deadly weapon.
        OR
               Still bearing in mind the foregoing instructions, if you believe from
        the evidence beyond a reasonable doubt that the defendant, David Ray
        Sneed, on or about the 8th day of February, 2013, in the County of Coryell,

Sneed v. State                                                                         Page 6
        and State of Texas, as alleged in the indictment, that the defendant while
        intending to threaten Steve Sands by discharging a firearm in the direction
        of Steve Sands, and while then and there using or threatening to use a
        deadly weapon to-wit: a firearm, during the commission of said assault,
        and while knowing that Steve Sands was then and there a public servant,
        to-wit: a deputy for the Coryell County Sheriff’s Office and while Steve
        Sands was then and there lawfully discharging an official duty, to-wit:
        attempting to execute an outstanding warrant, did then and there threaten
        Ronald Schmidt with imminent bodily injury by discharging a firearm in
        the direction of Ronald Schmidt, then you will find the defendant guilty of
        the offense of aggravated assault on a public servant with a deadly weapon.

        The statutory principle of transferred intent is raised when there is evidence a

defendant with the required culpable mental state intends to injure or harm a specific

person but injures or harms a different person. Manrique v. State, 994 S.W.2d 640, 647

(Tex. Crim. App. 1999); Delacerda v. State, 425 S.W.3d 367, 397 (Tex.App.-Houston [1 Dist.]

2011, pet. ref’d). There is evidence that Sergeant Sands, dressed in uniform, approached

Sneed at the gate of his property, and Sneed confronted Sergeant Sands and told him to

leave. Later that night, Sergeant Schmidt was in the same area where Sergeant Sands

previously encountered Sneed. Sergeant Schmidt heard Sneed yell, “you f - - king pigs,

I see you sitting down there. I told you to leave.” Sergeant Schmidt then saw Sneed fire

shots in his direction. We find that the trial court did not err in instructing the jury on

the theory of transferred intent. There is evidence that Sneed threatened Sergeant

Schmidt with imminent bodily injury by discharging a firearm in the direction of

Sergeant Schmidt while intending to threaten Sergeant Sands by discharging a firearm in

the direction of Steve Sands. We overrule the second issue.

                                       Conclusion

        We affirm the trial court’s judgment.

Sneed v. State                                                                        Page 7
                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 7, 2015
Do not publish
[CR25]




Sneed v. State                                          Page 8
