          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00082-CR



                                Gregory Dywayne Ward, Appellant

                                                   v.

                                    The State of Texas, Appellee




          FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
             NO. 50,938, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING




                A jury convicted appellant of aggravated robbery and aggravated assault. See Tex.

Pen. Code Ann. '' 29.03(a)(2); 22.02(a)(2) (West 1994). The jury made an affirmative finding that

the appellant used a deadly weapon in the course of committing the two crimes. See Tex. Crim.

Code Proc. Ann. art. 42.12, 3g(a)(2) (West Supp. 2002); Tex. Gov=t Code Ann. ' 508.145(d) (West

Supp. 2002). The trial court assessed punishment at forty years in prison and a $10,000 fine.

Appellant brings three points of error challenging the factual sufficiency of the evidence to support his

convictions. We will affirm.


                      FACTUAL AND PROCEDURAL BACKGROUND

                At approximately 6:30 p.m. on June 28, 1999, John Watts left the Sam=s Club in

Temple, and walked to his vehicle, a Ford Explorer. Watts put the key in the ignition of his Explorer,
started the engine, and rolled down the electric windows in an effort to cool off the interior of the

vehicle. After he loaded his groceries into the back of the Explorer, Watts returned his shopping cart

to the Acart corral@ located approximately ten to fifteen feet away from his vehicle. As Watts returned

to the Explorer, he saw appellant get into it and back it out of the parking space. Watts then stood in

front of the Explorer in an attempt to stop appellant. Appellant then Afloored it@ and drove quickly

out of the parking lot. Watts moved out of the way of the Explorer by putting his hands on the hood

and jumping around to the side of the vehicle. Watts strained his hip as a result. The incident was

estimated to have taken between five and twenty seconds. Appellant was arrested approximately two

and a half weeks later on July 16, 1999.

                At trial, appellant admitted stealing the Explorer but denied any intent to run over

Watts or strike him with the vehicle. Instead, he asserted that he was simply trying to flee the scene

as quickly as possible. Appellant stated further that he did not see Watts in front of the Explorer

because the incident occurred so quickly. Watts asserted that appellant maintained eye contact with

him throughout the incident and that he felt that if he had not moved out of the way, appellant

would have run him over. A witness at the scene stated that he would have felt threatened in the

situation, and that there was no indication that the driver of the Explorer had any intention of

stopping to avoid hitting Watts. In addition, a police officer testified that a motor vehicle can be used

as a deadly weapon.




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                Appellant brings three points of error on appeal: (1) the evidence is factually

insufficient to support the finding of guilt of the offense of aggravated robbery with a deadly weapon,

(2) the evidence is factually insufficient to support the finding of guilt of the offense of aggravated

assault with a deadly weapon, and (3) the evidence is insufficient to show that the automobile was, in

the manner and means of its use, a deadly weapon.


                                            DISCUSSION

The Factual Sufficiency Standard of Review

                In reviewing the factual sufficiency of the evidence, we begin with the presumption

that the evidence supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 129-

30 (Tex. Crim. App. 1996). The court reviews the evidence presented to the jury both tending to

prove and disprove the elemental fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

The reviewing court views all the evidence in a neutral light, and sets aside the verdict Aonly if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Clewis, 922

S.W.2d at 129; see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

                The appellate court may disagree with the fact finder=s determination, but its review

must employ appropriate deference to prevent substituting its judgment for that of the fact finder.

Johnson, 23 S.W.3d at 7. Further, the examination should not substantially intrude on the fact

finder=s role as the sole judge of the weight and credibility given to witness testimony. Id. The degree

of deference a reviewing court provides must be proportionate with the facts it can accurately glean

from the trial record. Id. at 8. Unless the record clearly demonstrates that a different result is


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appropriate, an appellate court must defer to the jury=s determination concerning what weight to give

contradictory testimonial evidence because resolution frequently hinges on an evaluation of credibility

and demeanor, and the jurors were in attendance when the testimony was delivered. Id. Moreover, it

is not enough to support a finding of factual insufficiency that an equally plausible alternative to the

jury=s determination exists. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The

existence of some evidence contrary to the outcome is acceptable. It is only when the conviction

ignores the great weight and preponderance of contrary evidence that the verdict should be set aside.

Id.


The Intent Element

               A party commits the offense of robbery if, in the course of committing theft and with

the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. ' 29.02(a)(2) (West

1994). If a person uses or exhibits a deadly weapon during the commission of a robbery, the offense

becomes an aggravated robbery. Id. ' 29.03(a)(2).

               Assault occurs when a person intentionally or knowingly threatens another with

imminent bodily injury. See Tex. Pen. Code Ann. ' 22.01(a)(2) (West Supp. 2002). The offense

becomes an aggravated assault if it is committed using a deadly weapon. Id. ' 22.02(a)(2) (West

1994).

               The question raised by appellant in his first two issues is whether the evidence offered

by the State was factually sufficient to prove beyond a reasonable doubt that he intentionally or



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knowingly threatened or placed Watts in fear of imminent bodily injury or death. The resolution of

this issue hinged on the credibility of the testimony of the witnesses at trial, including the appellant

who testified in his own behalf. Appellant testified that he did not intend to threaten Watts, while

Watts and an eyewitness testified that they believed appellant knew of Watts=s presence in the

parking lot and intended to accelerate in his direction. On direct and redirect examination, Watts

testified as follows:


        Q: Did you happen to see where [appellant] was looking as you were standing in
           front of the vehicle, pointing your finger at him?

        A: He was watching me closely. As he got in the vehicle his eyes were on me. . . .
           And he got in and he never took his eyes off me.

        Q: How about when you were standing in front of the vehicle?

        A: He looked me right in the eye.
                                                  ...

        Q: Now as you stood in front of your vehicle and pointed the finger at this
           individual making eye contact with him, what happened next?

        A: He pulled her down into drive and stood on it.

        Q: What do you mean by Astood on it@?

        A: He floored it.
                                                  ...

        Q: Do you believe this individual intended to hit you with the vehicle?

        A: Yes, I think he would have run over me if I hadn=t been able to get out of the
           way.




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                 An eyewitness, Carlos Brooks, testified that he would have felt threatened had he

been in Watts=s position. When asked how fast the appellant drove the Explorer towards Watts,

Brooks replied that it was fast enough that he would have gotten out of the way. The appellant

admitted that he jumped into Watts=s vehicle with the intent to steal it, but denied any intent to use

the Explorer as a weapon or to harm Watts in any way. He asserted that he was not the type of man

who would harm another individual intentionally, and said he was only trying to flee the scene as

quickly as possible.     However, he admitted he would have felt threatened under the same

circumstances.

                 Threats may be communicated by action or conduct as well as words. McGowan v.

State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). A neutral review of the evidence reveals that

the jury could reasonably find that appellant intentionally or knowingly threatened Watts. Appellant

admitted that he floored the vehicle, that he saw Watts near the car as he exited the parking lot, and that he

would have felt threatened under the same circumstances. This coupled with testimony by the victim

and the eyewitness that appellant suddenly accelerated toward Watts forcing him to jump out of the

way and that appellant maintained eye contact with Watts throughout the incident was sufficient to

outweigh the evidence to the contrary, which consisted solely of appellant=s testimony that he did not

intend to threaten Watts. At best, appellant offers only an equally plausible alternative version of the facts

that the jury chose not to believe. Therefore, the verdict was not so contrary to the overwhelming evidence

as to be unjust. We overrule appellant=s first and second points of error.


Motor Vehicle as Deadly Weapon



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                In his third point of error, appellant contends that the evidence adduced at trial was factually

insufficient to support the jury=s affirmative finding that he used the Explorer as a deadly weapon. 1

Appellant claims he used the Explorer simply to effect his escape and that he had no specific intent to

threaten, hurt, or kill Watts with the Explorer.

                A deadly weapon is Aanything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.@ Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (West 1994) (emphasis

added). An instrument that is not a deadly weapon per se may qualify as a deadly weapon by (1) the

manner of its use or intended use, (2) the instrument=s size and shape, and (3) the instrument=s capacity to

produce death or serious bodily injury. Garza v. State, 695 S.W.2d 726, 728 (Tex. App.CDallas 1985),

aff=d, 725 S.W.2d 256 (Tex. Crim. App. 1987). To establish use of a deadly weapon, the State is not


          1
                ADeadly weapon@ means:

          (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or
              serious bodily injury; or

          (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily
              injury.

Tex. Pen. Code Ann. ' 1.07(a)(17) (West 1994).




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required to prove the weapon used actually caused death or serious bodily injury. See Brooks v. State,

900 S.W.2d 468, 472 (Tex. App.CTexarkana 1995, no pet.). Rather, the State must show the weapon

was capable of causing death or serious bodily injury. Id. at 472. At trial, the police officer who arrested

appellant, testified that in her experience an automobile could be used as a deadly weapon; thus, the State

produced evidence from which a jury could reasonably infer that the Explorer was capable of causing death

or serious bodily injury. There was also ample evidence from which the jury could infer that the Explorer, in

the manner of its use, was capable of causing death or serious bodily injury. Appellant saw Watts near the

vehicle as he exited the parking lot and accelerated forcing Watts to jump out of the way.

                The issue of whether a jury must find that a defendant intended to use the motor vehicle as a

deadly weapon was addressed by the court of criminal appeals in Walker v. State, 897 S.W.2d 812 (Tex.

Crim. App. 1995), in which the court construed Adeadly weapon@ as it appears in article 42.12, section

3g(a)(2) of the code of criminal procedure.2 In that case, the defendant argued against the jury=s affirmative

finding that he used his vehicle as a deadly weapon because he was charged with involuntary manslaughter


          2
                Article 42.12, section 3g(a)(2) provides:

          The provisions of Section 3 of this article do not apply:

                                                    ***
          (2)   to a defendant when it is shown that a deadly weapon as defined in Section 1.07,
                Penal Code, was used or exhibited during the commission of a felony offense or
                during immediate flight therefrom, and that the defendant used or exhibited the
                deadly weapon or was a party to the offense and knew that a deadly weapon
                would be used or exhibited.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (West 2002).


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resulting from his operation of a motor vehicle while intoxicated, thus, there was no evidence he operated his

car with intent to cause the decedent=s death. In addressing appellant=s claim, the court of criminal appeals

relied on Patterson v. State, 769 S.W.2d 938, 940-941 (Tex. Crim App. 1989), concerning the meaning

of Ause@:


        AUse@ as a verb, may mean a number of things. For example, Ause@ is defined as >to put
        into action or service: have recourse or enjoyment of: employ . . . to carry out a purpose or
        action by means of: make instrumental to an end or process: apply to advantage: turn to
        account: utilize=. . . . In explicating the word the dictionary provides the following synonym
        [sic] >employ, utilize, apply, avail: use is general and indicates putting to service of a thing,
        usu. for an intended or fit purpose . . . .=@


Id. Based on this analysis, the court reasoned that when there is no clear intent to harm or kill, the meaning

of Ause@ is open to the broadest possible interpretation. Walker, 897 S.W.2d at 814. For example, use of

a deadly weapon during the commission of a felony offense refers not only to the actual wielding of a firearm

but also extends to any employment of a deadly weapon, including mere possession, if such possession

facilitates the commission of the associated felony. Patterson, 769 S.W.2d at 941. Therefore, the Walker

court held that no intent to use the automobile as a deadly weapon was required; rather, Aan object may be

used as a deadly weapon where the >manner of its use . . . is capable of causing death or serious bodily

injury.=@ Walker, 897 S.W.2d at 814 (quoting definition of Adeadly weapon@ in section 1.07 of the penal

code); see also Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995). This Court expressed the

same view in Roberts v. State, 766 S.W.2d 578, 579 (Tex. App.CAustin 1989, no pet.). In that case, we

held that the reckless operation of a truck, with an awareness of, but conscious disregard for, a substantial

and unjustifiable risk that injuries to another would result, was enough to find the truck was used as a deadly

                                                       9
weapon. Id. Thus, we hold it was not necessary for the jury to find that the defendant intended to use the

Explorer as a deadly weapon. 3

                The jury=s determination that the Explorer was, in the manner of its use, a deadly weapon is

not against the great weight of the evidence. Accordingly, we hold that the evidence was factually sufficient

to support appellant=s conviction. We overrule appellant=s third point of error.


                                             CONCLUSION

                Having overruled all appellant=s points of error, we affirm the judgment of the trial court.




                                                  __________________________________________

                                                  David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: July 26, 2002

        3
          We note that in an earlier case involving possession of a prohibited weapon, the court of criminal
appeals held that in order for an object to qualify as a deadly weapon for affirmative finding purposes, the
weapon must be utilized to achieve an intended result, namely, the commission of a felony offense. Narron
v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992). There was ample evidence in this case that
appellant used the Explorer to commit a felony offense.




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