Tommy Jack Lewis Armstrong v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-15-00252-CR
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TOMMY JACK LEWIS ARMSTRONG, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 14-20458
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MEMORANDUM OPINION

Arguing that the evidence was insufficient to prove that he committed

aggravated assault, Tommy Jack Lewis Armstrong 1 appeals his conviction,

requests that it be reversed, and argues that the Court should render a judgment of

1
The indictment indicates that Tommy Jack Lewis Armstrong is also known
as Tommy Jack Armstrong.

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acquittal.2 See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). We hold that the

evidence is sufficient to show that Armstrong committed aggravated assault.

Therefore, we overrule Armstrong’s sole issue and affirm the trial court’s

judgment.

The testimony from the trial shows that Armstrong swerved his truck toward

Chris’s3 truck while the trucks were beside each other and traveling on an

interstate highway. According to Armstrong, he was justified in following the other

truck and pulling alongside it, and he never used his truck in a manner that was

intended to cause Chris an injury. The State argues that the evidence about the

manner Armstrong used his truck allowed the jury to infer that Armstrong used the

truck in a manner to threaten Chris with an injury.

2
Armstrong’s sentence was enhanced to a first-degree felony based on his
admission that he had previously been convicted of another felony, burglary of a
habitation, a second-degree felony. See Tex. Penal Code Ann. § 12.42(b) (West
Supp. 2016) (authorizing an enhanced penalty if it is shown on the trial of a
second-degree felony that the defendant had previously been convicted of a felony
other than a state jail felony). Throughout the opinion, we cite the current version
of the Texas Penal Code, as any amendments to the provisions that are cited are
not relevant to the issues Armstrong raises in his appeal.
3
“Chris” is a pseudonym that is used to conceal the victim’s actual name.
See Tex. Const. art. I, § 30 (granting crime victim’s “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
2
 Based on the indictment in Armstrong’s case, the State was required to

prove that Armstrong intentionally and knowingly threatened Chris with imminent

bodily injury by using or exhibiting a deadly weapon―an automobile4―in a

manner capable of causing serious bodily injury in committing the assault. See

Tex. Penal Code Ann. § 22.01(a)(2) (West Supp. 2016), § 22.02(a)(2). Depending

on the manner in which they are used, automobiles and trucks are capable of being

used as deadly weapons. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App.

1995); see also Callison v. State, 218 S.W.3d 822, 827 (Tex. App.―Beaumont

2007, no pet.). In the charge submitted to the jury in Armstrong’s case, the term

“deadly weapon” was defined as: “(1) a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury; or (2)

anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” This is the same definition for “deadly weapon” that is

found in the Penal Code. Tex. Penal Code Ann. § 1.07(17) (West Supp. 2016). To

prove that Armstrong acted intentionally or knowingly, the State had to show

either that it was Armstrong’s “conscious objective or desire to engage in the

4
The indictment states that Armstrong was driving an automobile and the
evidence presented by the State indicates that Armstrong was driving a truck.
However, the indictment’s allegation that Armstrong used an automobile does not
represent a variance between the indictment’s allegations and the proof, as the term
automobile is considered to include vehicles such as trucks. See Nichols v. State,
242 S.W.2d 396 (Tex. Crim. App. 1951).
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conduct or cause the result[]” or that Armstrong was aware of the nature of, or

circumstances surrounding, his conduct. See Tex. Penal Code Ann. § 6.03(a), (b)

(West 2011).

Six witnesses testified in the guilt-innocence phase of Armstrong’s trial.

However, only two of the witnesses, Chris and Armstrong, had personal

knowledge about the circumstances surrounding whether Armstrong used his truck

in a manner that threatened Chris with an imminent bodily injury. In resolving

what it believed occurred in the chase, the jury apparently chose to accept Chris’s

account, in which Chris indicated that Armstrong had swerved toward him as the

vehicles were traveling beside each other at high rates of speed on the highway.

During the trial, Chris testified that while he was driving home one evening,

he saw a man and a woman arguing in the street. According to Chris, after he saw

the man strike the woman with his fist, the woman ran toward his truck, and he

signaled to the woman that she should get in. Chris explained that he did not know

who the woman was, but she was sobbing. Chris indicated that the man ran after

the woman as she was running toward his truck, and he testified that he saw the

man attempt to prevent the woman from getting into his truck. The man damaged

Chris’s passenger door as he tried to prevent the woman from leaving with Chris.

Chris explained that he then drove to another street in the neighborhood, but

that Armstrong got into his own truck, and found them. According to Chris, when
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he spotted Armstrong’s truck, he drove out of the neighborhood, and a chase

ensued. The chase led from the neighborhood to the westbound lanes of Interstate-

10, and ended near the city limits in Beaumont. Chris explained that during the

chase, Armstrong pulled beside his truck, where he saw Armstrong “[d]riving,

swerving, [and] yelling[]” while the trucks were traveling at speeds of ninety

miles-per-hour. Chris testified that while the trucks were side-by-side, Armstrong

“swerved at us, which made me very nervous.” Chris indicated during his

testimony that the way Armstrong was driving scared him: he thought Armstrong

was going to hit his truck. According to Chris’s testimony, Armstrong swerved

toward him, Chris then swerved to his right, sped up to get away, and ultimately

attained a speed of about 100 miles-per-hour. The chase ended when the police,

who Chris had called shortly after the chase began, stopped Armstrong’s truck.

According to Armstrong, who testified in his own defense, he never swerved

toward Chris as the trucks were traveling side-by-side on the highway. Armstrong

also testified that he followed Chris’s truck because he did not recognize or know

Chris, and he wanted to make sure that his girlfriend, with whom he had been

arguing, was okay. Armstrong admitted that on two occasions, he pulled beside

Chris’s truck in an effort to get Chris to pull over, but he denied ever swerving his

truck at Chris in an attempt to cause a wreck. Armstrong also denied that he was

attempting to injure Chris by running Chris’s truck off the road.
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 The testimony from the police officers involved in the chase indicates they

had not taken up the pursuit of Armstrong’s truck until he was on Interstate-10.

According to the testimony of the officers, when Armstrong noticed they were

trying to pull him over, Armstrong pulled onto the shoulder of the highway and

stopped. The evidence before the jury included video footage captured by a camera

in one of the police cars that stopped Armstrong’s truck. However, the video

footage did not include the portion of the chase where the two trucks were

traveling beside each other.

In his appeal, Armstrong contends that the evidence showing the movements

of his truck did not allow the jury to rationally conclude that he used his truck in a

manner to threaten Chris with an imminent bodily injury. See Tex. Penal Code

Ann. § 22.02(a)(2). To determine whether sufficient evidence was before the jury

to allow it to find Armstrong guilty of aggravated assault, we view all of the

evidence in the light that is the most favorable to the jury’s verdict and determine,

based on that evidence and any reasonable inferences therefrom, whether any

rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010) (applying the standard identified in Jackson v. Virginia, 443 U.S. 307

(1979), to Texas cases raising sufficiency challenges); Temple v. State, 390 S.W.3d

341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 318-19). Under the
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Jackson standard, “The jury is the sole judge of credibility and weight to be

attached to the testimony of witnesses.” Temple, 390 S.W.3d at 360. In this role,

the jury may 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). Further,

the jury is permitted to draw multiple reasonable inferences from facts as long as

each is supported by the evidence presented at trial. Temple, 390 S.W.3d at 360.

When the record supports conflicting inferences, we presume that the jury resolved

those conflicts in favor of the verdict and therefore, defer to that determination. Id.

In reviewing whether sufficient evidence is in a record to support a

defendant’s conviction, we consider all of the evidence in the record, regardless of

whether it was properly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). In considering the inferences the jury made in resolving any

conflicts in the evidence, the jury is allowed to consider both direct and

circumstantial evidence, as both may be equally probative of the defendant’s guilt.

Temple, 390 S.W.3d at 359. Additionally, we note that “‘circumstantial evidence

alone can be sufficient to establish guilt.’” Id. (quoting Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a circumstantial evidence case, each fact

need not point directly and independently to the defendant’s guilt, it is enough if

the jury’s conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Temple, 390 S.W.3d at 359 (quoting Johnson v. State,
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871 S.W.2d 183, 186 (Tex. Crim. App. 1993)); Hooper, 214 S.W.3d at 13. After

we have reviewed the evidence and given proper deference to the factfinder’s role,

we are required to uphold the verdict unless we conclude that based on the

evidence, a rational factfinder must have had reasonable doubt as to any of the

essential elements of the offense at issue in the appeal. See Laster v. State, 275

S.W.3d 512, 518 (Tex. Crim. App. 2009).

Based on the Jackson standard, and given Chris’s account regarding the

chase, the jury was entitled to reject Armstrong’s testimony that he never swerved

toward Chris’s truck, he never intended to cause Chris an injury, and he never

intended to cause a wreck. See Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim.

App. 1978) (holding that a jury may choose to believe or not believe all, some or

none of the testimony of the witnesses who testify in a trial); see also Guevara v.

State, 152 S.W.3d 45, 49-50 (Tex. Crim. App. 2004) (allowing a jury to infer intent

from circumstantial evidence including the actions, words, and conduct of the

appellant). In Armstrong’s case, the jury could rationally believe Chris’s testimony

that Armstrong swerved his truck toward Chris’s truck while the trucks were

traveling beside each other at high speeds, that Chris swerved his truck away from

Armstrong’s truck to avoid a collision, and that Armstrong intentionally swerved

toward Chris to convey to Chris that if he refused to stop, Armstrong would use his

truck to force Chris off the road. Given the speeds involved when Armstrong’s
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conduct occurred, the jury’s inference that Armstrong used his truck in a manner to

threaten Chris with an imminent bodily injury was reasonably based on the

testimony, as viewed in the light most favorable to the verdict.

We hold the evidence authorized the jury to find Armstrong intentionally

used his truck in a manner that placed Chris in imminent fear of a bodily injury.

See Smith v. State, 316 S.W.3d 688, 696 (Tex. App.―Fort Worth 2010, pet. ref’d)

(upholding aggravated assault conviction based on the manner the defendant used

his truck). We overrule Armstrong’s sole issue. The trial court’s judgment is

affirmed.

AFFIRMED.

______________________________
HOLLIS HORTON
Justice

Submitted on June 10, 2016
Opinion Delivered October 19, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.

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