                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-117-CR


BENJAMIN BEEMER                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      A jury found Appellant Benjamin Beemer guilty of three counts of

aggravated assault and assessed his punishment at eight years’ confinement for

each count.      The trial court sentenced him accordingly, ordering that the

sentences run concurrently. In two issues, Beemer complains that the trial




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           See Tex. R. App. P. 47.4.
court erred by refusing to grant his motion for mistrial after the State violated

his motion in limine and that the evidence is legally and factually insufficient to

sustain his conviction. We will affirm.

                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      One clear, sunny afternoon, Jane Yvette Laird was driving south on FM

156, a two-lane road, in Denton County, Texas when she noticed a black truck,

driven by Beemer, rapidly approaching from behind. Laird slowed her car to let

the truck pass. The truck crossed the center line into the lane for northbound

traffic to pass Laird’s car, but it did not pull back into the southbound lane after

passing Laird.     Laird became concerned because they were approaching a

bridge and an incline; she could not see over the incline so she stopped her car

and watched as the black truck continued in the wrong lane.

      Shelby Baugh 2 was traveling north on FM 156 and saw Beemer’s black

truck pass Laird’s car and stay in the northbound lane heading straight towards

Baugh's white car. Baugh and Beemer reached the bridge at the same time;

Baugh swerved into the southbound lane to avoid colliding with Beemer. The

two vehicles brushed each other as they passed. Baugh pulled back into the




      2
           At the time of the incident, her name was Shelby Smith.

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northbound lane and flashed her lights at Laird. She was crying and hysterical

as she pulled up next to Laird’s car; she told Laird that she had almost wrecked.

      In the meantime, Beemer pulled back into the southbound lane and

continued traveling south on FM 156.         Brian Spaid and his then-girlfriend

Margaret Kidder were traveling north on FM 156 in Spaid’s Ford truck and saw

Beemer’s black truck approaching in the southbound lane. The two vehicles

were about to pass each other when Beemer veered his truck straight for

Spaid’s truck. Beemer’s truck crossed the middle line and drove “at a perfect

angle to hit just head on” with Spaid’s truck. Kidder screamed, and Spaid

steered for the ditch. Beemer’s truck hit the driver’s side of Spaid’s truck.

Spaid was thrown against the steering wheel and suffered a bruised chest and

lower abdomen from hitting the steering wheel and airbag; Kidder ended up

halfway on the floorboard under her seatbelt and suffered ruptured and

protruding disks in her neck and back.

      Laird, who had seen the dust and debris in the air while talking to Baugh,

told Baugh that the black truck had just wrecked and that they needed to go to

the scene.   Baugh turned her vehicle around, and the two women drove

southbound until they reached the wreck.

      Keith Janopoulos was driving approximately 100 yards behind Spaid with

his two-year-old son in the passenger seat. He saw the collision and stopped

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to help.   He first approached Beemer and asked if he was okay; Beemer

responded that he was. Janopoulos started walking to Spaid’s truck to check

on its passengers but looked back and saw Beemer taking items from his own

truck and putting them in Janopoulos’s truck. Beemer unstrapped Janopoulos’s

son from his car seat, placed him in the ditch, and got in the driver’s side of

Janopoulos’s truck. Janopoulos ran back to his truck and told Laird, who was

standing nearby, to take his son up to the highway. He then grabbed a chain

from the bed of his truck and began swinging it like a lariat, threatening Beemer

if he did not get out of Janopoulos’s truck. Beemer said repeatedly, “I got to

go. You got to—you got to let me go. You got to let me get out of here.”

Janopoulos and another man who had arrived at the scene got Beemer out of

the truck and detained him until officers arrived. Beemer also tried to get into

the other man’s truck.

      Richard Hooten, who was a state trooper at the time and has since

retired, arrived at the scene and asked Beemer what had happened. Beemer did

not respond to Hooten’s questions; he folded his arms and stared straight

ahead. Hooten finally got Beemer to write down his age, address, driver’s

license number, and whether he was wearing a seatbelt, but Beemer would not

answer questions about the accident. Hooten checked his eyes for nystagmus,

or signs of intoxication, and found none.

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      Beemer was taken to the hospital, where Hooten continued to try to

speak with him about what had happened.            Beemer would not talk to the

trooper and, when Hooten was not in the room, would poke his head out and

run into the next room. Hooten thought Beemer might try to run from the

hospital.   Hooten ultimately arrested Beemer for aggravated assault with a

motor vehicle.

                                  III. M OTION IN L IMINE

      In his first issue, Beemer argues that the trial court erred by refusing to

grant his motion for mistrial after the State violated his motion in limine. Before

trial, Beemer filed a motion in limine, requesting that the court order the State

and its witnesses to not mention any opinion that Beemer was attempting to

commit suicide without first holding a hearing outside of the jury’s presence to

determine admissibility. The trial court granted his motion. On appeal, Beemer

contends that he was entitled to a mistrial after the following exchange took

place during the State’s questioning of Hooten:

             Q.    Now, after gathering all the information, did you
             also – without getting into what they told you, but did
             you actually speak to the people there at the hospital
             about his condition, whether or not there was any
             intoxicant on board, if he had any major injuries or
             anything like that?      After gathering all of that
             information, what did you decide?




                                         5
            A.    That the Defendant was not intoxicated. In my
            opinion, he was attempting to take his own life based
            off of other information I was finding out from the
            Army.

      Defense counsel objected that the testimony had been addressed in his

motion in limine, and the trial court sustained the objection. The trial court

instructed the jury to disregard Hooten’s last statement, and it denied defense

counsel’s request for a mistrial.

      We review the trial court’s denial of a motion for mistrial under an abuse

of discretion standard. Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim.

App. 2005), cert. denied, 548 U.S. 926 (2006); Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). The

determination of whether a given error necessitates a mistrial must be made by

examining the particular facts of the case. Ladd, 3 S.W.3d at 567; Hernandez

v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990), cert. denied, 500 U.S.

960 (1991).

      A motion for mistrial will be granted only in “extreme circumstances,

where the prejudice is incurable.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.

Crim. App. 2004); see Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.

2000). Generally, a prompt instruction to disregard will cure error associated

with an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783



                                       6
(Tex. Crim. App. 2000). Further, we are to presume the jury will follow the

court’s instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.

1998). In considering whether an instruction is sufficient to cure error, courts

consider whether the reference was direct or implied, intentional or inadvertent,

detailed or vague, and whether the topic was pursued once the instruction was

given. Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); Waldo v.

State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988).

      In this case, the trial court promptly instructed the jury to disregard the

complained-of statement, and we presume that the jury followed that

instruction. See Colburn, 966 S.W.2d at 520. Although the complained-of

testimony was a direct reference to the testimony covered by the motion in

limine—opinions of attempted suicide—it was not responsive of the State’s

question. See Kipp, 876 S.W.2d at 339. The State asked whether Hooten had

talked to hospital staff about whether Beemer was intoxicated or was suffering

from a major injury and asked generally what Hooten had decided to do after

gathering all the information about the accident; it did not seek Hooton’s

opinion on whether Beemer was attempting suicide.          After the trial court

instructed the jury to disregard Hooten’s answer, the State continued its

questioning by clarifying, “Not so much the reasons, but what did you decide




                                       7
to do at that point?” The State did not refer to this testimony again, did not

attempt to highlight this testimony, and did not make any use of it at all.

      For these reasons, we conclude that the trial court’s instruction to

disregard cured any potential prejudice from the testimony. See Ovalle, 13

S.W.3d at 783. Accordingly, we hold that the trial court did not abuse its

discretion by denying Beemer’s motion for mistrial, and we overrule Beemer’s

first issue. See Russeau, 171 S.W.3d at 885; Ovalle, 13 S.W.3d at 783.

                            IV. S UFFICIENCY OF THE E VIDENCE

      In his second issue, Beemer argues (1) that legally and factually

insufficient evidence exists that he drove his truck into Baugh’s car to support

his conviction for aggravated assault on Baugh as alleged in Count 1 of the

indictment and (2) that legally insufficient evidence exists that he possessed the

requisite mens rea to convict him of aggravated assault.

                            A. Standards of Review

                   1. Legal Sufficiency Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.            Jackson v.




                                        8
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).        Instead, we “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.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.




                                        9
                 2. Factual Sufficiency Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. To reverse under the second ground, we must determine, with

some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor




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of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution

of the conflict “often turns on an evaluation of credibility and demeanor, and

those jurors were in attendance when the testimony was delivered.” Johnson,

23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right

to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008).




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      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

          B. Elements of Aggravated Assault with a Motor Vehicle

      A person commits assault if he (1) intentionally, knowingly, or recklessly

causes bodily injury to another or (2) intentionally or knowingly threatens

another with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(1), (2)

(Vernon Supp. 2009). The assault becomes an aggravated assault if the person

uses or exhibits a deadly weapon. Id. § 22.02(a)(2).

       A person acts intentionally with respect to the nature of his conduct or

to a result of his conduct when he has the conscious objective or desire to

engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2003). A

person acts knowingly with respect to a result of his conduct when he is aware

that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A

person acts recklessly with respect to circumstances surrounding his conduct

or the result of his conduct when he is aware of but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or that the result

will occur. Id. § 6.03(c).




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            C. Sufficiency of Evidence to Support Conviction for Count I

      Count 1 alleged that Beemer “intentionally or knowingly threaten[ed]

[Baugh] with imminent bodily injury by driving a motor vehicle into a motor

vehicle operated by [Baugh].” See id. § 22.01(a)(2). Beemer argues that the

evidence is legally and factually insufficient to prove that he actually hit

Baugh’s car as alleged in the indictment.

                      1. Legally Sufficient Evidence of Count 1

      Viewing the evidence in the light most favorable to the verdict, we find

that the record does contain evidence that Beemer drove his truck into Baugh’s

car. Baugh testified that she saw Beemer’s truck pass Laird’s car and continue

driving “dead set straight on” in the wrong lane headed for her car. When she

realized he was not moving back into his lane, she quit accelerating. She felt

threatened and saw her life flash before her eyes before her “flight instinct” set

in and she veered into the other lane at the last second. She did not realize that

their vehicles had impacted until she looked later and saw that Beemer’s truck

had “barely brushed her car,” leaving tire marks on her car’s hubcap and a small

scratch on its fender. Hooten also testified that the back right panel of Baugh’s

car had “a little” damage, “just a scratch,” and that the front right of Beemer’s

vehicle had a little “buff mark.”   Hooten testified that the contact was not

enough “to cause them to spin or anything of that nature. Just a minor touch.”

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      From this evidence, we conclude that a rational trier of fact could have

found beyond a reasonable doubt that Beemer drove his truck into Baugh’s car

sufficient to convict him of aggravated assault as alleged in Count 1 of the

indictment. Consequently, we hold that the evidence is legally sufficient to

support Beemer’s conviction for aggravated assault on Baugh. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

                    2. Factually Sufficient Evidence of Count 1

       A neutral review of the evidence also reveals that the jury could

reasonably find that Beemer drove his truck into Baugh’s car. See Steadman,

280 S.W.3d at 246; Watson, 204 S.W.3d at 414.

      Beemer argues that it is “physically impossible” for the two vehicles, each

traveling at approximately 60 miles per hour, to have touched each other

without spinning out of control.     But nothing in the record supports his

allegations. Instead, Hooten’s and Baugh’s testimony both demonstrate that

Beemer drove his truck straight towards Baugh’s car, causing their vehicles to

brush against each other as Baugh swerved into the opposite lane to narrowly

avoid a head-on collision.

      Viewing the evidence in a neutral light, we find no objective basis for

holding that the jury’s verdict was clearly wrong or manifestly unjust or that it

is contradicted by the great weight and preponderance of the evidence. See

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Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417. Rather,

the evidence presented at trial was sufficient to support the jury’s verdict, and

no contrary evidence exists that would render the evidence factually insufficient

under the applicable standard of review. See Lancon, 253 S.W.3d at 704;

Watson, 204 S.W.3d at 414–15, 417. Accordingly, we hold that the evidence

is factually sufficient to support Baugh’s conviction for aggravated assault as

alleged in Count 1 of the indictment.

              D. Legally Sufficient Evidence of Requisite Mental State

      Beemer also argues in his second issue that legally insufficient evidence

existed that he acted intentionally or knowingly when he drove his truck into

Baugh’s car or intentionally, knowingly, or recklessly when he drove his truck

into Spaid’s truck. He argues that the evidence shows that he was “likely

asleep or not paying attention.”

      Direct evidence of the requisite mental state is not required.   See Hart

v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). The jury may infer the

existence of the requisite mental state from any facts tending to prove its

existence, including the acts, words, and conduct of the accused and the

method of committing the crime. See id.

      Here, Baugh explained that Beemer “[n]ever veered from the lane at all”

when driving towards her. After missing Baugh, Beemer merged back into the

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correct lane until just as he was about to pass Spaid’s truck. Spaid testified

that Beemer “veered straight for [him]” in a “perfect angle” as the two were

about to pass each other and that he had no doubt that Beemer intentionally

swerved to hit him.

      To support his argument, Beemer points to Janopoulos’s testimony that

he saw Beemer’s truck “just gradually” cross the center line, but Janopoulos

further explained, “It looked more like just a[n] intentional driving across the

lanes . . . .” Kidder testified that she saw Beemer’s hands on the wheel and

saw him turn the wheel toward Spaid’s truck.

      Beemer’s conduct after the wreck also constitutes evidence of his

intentional and knowing conduct. See, e.g., Dobbins v. State, 228 S.W.3d

761, 765 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d, untimely filed)

(holding evidence that defendant kept driving after hitting victim constituted

evidence of his intent to threaten victim and knowledge that his actions would

have that result); Rodriguez v. State, 129 S.W.3d 551, 564 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that defendant’s attempt

to flee cast doubt on his claim that he did not know co-defendant had stolen

a cash register). After the wreck, Beemer tried to flee in two different vehicles

not belonging to him, he would not talk to the trooper at the scene, and he

acted like he might try to run from the hospital.

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        Viewing the evidence in the light most favorable to the verdict, we

conclude that a rational trier of fact could have found beyond a reasonable

doubt that Beemer acted intentionally or knowingly sufficient to support his

conviction for aggravated assault as alleged in Count 1 of the indictment and

that he acted intentionally, knowingly, or recklessly sufficient to support his

conviction for aggravated assault as alleged in Counts 2 and 3 of the

indictment. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W.3d at 778.

                               E. Sufficient Evidence

      Having found the evidence factually sufficient to support Beemer’s

conviction for aggravated assault as alleged in Count 1 of the indictment and

having found the evidence legally sufficient to support his conviction for

aggravated assault as alleged in all three counts of the indictment, we overrule

Beemer’s second issue.




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                            V. C ONCLUSION

     Having overruled Beemer’s two issues, we affirm the trial court’s

judgment.


                                             SUE WALKER
                                             JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 18, 2010




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