The opinion
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
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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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