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Date: 05-14-2019

Case Style:

Victor Ortiz Gonzalez v. The State of Texas

Case Number: 02-18-00179-CR

Judge: Lee Gabriel

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Steven W. Conder
Joseph W. Spence

Defendant's Attorney: Robert K. Gill

Description:






Officers Taylor Rogers and Craig Chambers were dispatched to locate a vehicle
that had stolen merchandise inside. The merchandise, which was equipped with a
tracking device, had been placed in a “bait” car by the police and then was stolen.1
Rogers and Chambers quickly located the vehicle—a yellow Hummer—based on the

1Only the merchandise was stolen, not the bait car.
3
merchandise’s tracking device. After seeing the Hummer roll through a stop sign,
Chambers turned on the patrol car’s roof lights and initiated a traffic stop. The
Hummer accelerated, “dust flying,” after turning into an apartment complex’s parking
lot. One person in the parking lot had to run to get away from the Hummer.
Chambers, who was driving the patrol car, sped after the Hummer. The Hummer
sped to a locked gate and stopped. Chambers drove the patrol car to the driver’s side
of the Hummer, stopping the front of the patrol car close to and even with the
Hummer’s front bumper to keep the driver from getting out of the Hummer.
Another officer, Kendall Harris, drove his patrol car close to and even with the
passenger side of the Hummer. Harris saw Rogers put his right leg outside his patrol
car to get out. The Hummer accelerated and began to reverse, pinning Rogers
between the patrol car and the Hummer. Chambers yelled to alert Rogers that the
Hummer was moving. Before Rogers could react, the driver of the Hummer looked
in the rearview mirror, continued to accelerate, and reversed away from both patrol
cars, damaging both. While the Hummer was reversing, Rogers can be heard on the
dashboard video saying, “Ow, my leg.” The Hummer also hit “several” other cars in
the complex parking lot. Chambers and Rogers ran after the Hummer, but had to
stop after Rogers’s leg, elbow, and chest pain became severe. Harris saw the Hummer
crash into a structure and saw the driver run away.
Fingerprints from the Hummer were matched to Appellant. Rogers was able
to identify Appellant from a photo array as the driver of the Hummer. After a
4
warrant was issued, Appellant was arrested. The investigating detective interviewed
Appellant, and after first denying any involvement, Appellant admitted he was the
driver of the Hummer. He also admitted that “he knew exactly where the officers’
cars were at and that they were police officers behind him and around him, especially
when he put . . . the Hummer into reverse.” When the investigating detective told
Appellant that an officer had been hurt after Appellant pinned him between the patrol
car and the Hummer, Appellant cried.
B. INDICTMENT AND TRIAL
Appellant was indicted with the first-degree felony of aggravated assault of a
public servant with a deadly weapon—the Hummer—and with the third-degree
felony of evading arrest or detention with a vehicle—again, the Hummer.2 See Tex.
Penal Code Ann. §§ 22.02, 38.04 The indictment alleged that Appellant used the
Hummer as a deadly weapon and contained a repeat-offender notice, alleging that
Appellant had been convicted in 2005 of possessing one gram or more but less than
four grams of methamphetamine—a third-degree felony. See id. § 12.42(a), (c)(1); Tex.
Health & Safety Code Ann. § 481.115(c).
A jury found Appellant guilty of aggravated assault of a public servant with a
deadly weapon, found Appellant guilty of evading arrest or detention, found that the
deadly-weapon allegation regarding evading arrest or detention had been proved
2The indictment contained other counts arising from the same criminal episode; but these two counts were the only ones the State took to trial.
5
beyond a reasonable doubt, found that the repeat-offender notice was true,3 and
assessed his punishment at 45 years’ confinement for assault and at 20 years’
confinement for evading arrest or detention. The jury also assessed a $10,000 fine for
each offense. The trial court entered judgments in accordance with the jury’s verdicts,
ordering the sentences to run concurrently. See Tex. Penal Code Ann. § 3.03(a). The
incorporated order to withdraw funds authorized withdrawals from Gonzalez’s
inmate trust account for “[c]ourt costs, fees and/or fines and/or restitution . . . in the
amount of $20,319.”4
Appellant filed a motion for new trial, arguing that “the verdict is contrary to
the law and the evidence.” See Tex. R. App. P. 21.3(h). The motion was deemed
denied. See Tex. R. App. P. 21.8(c).
II. SUFFICIENCY OF THE EVIDENCE: AGGRAVATED ASSAULT
In his second point, Appellant argues that the evidence was insufficient to
support a finding that he intentionally or knowingly committed aggravated assault.
Appellant was charged with the intentional or knowing aggravated assault on a public
servant—Rogers—while using a deadly weapon, which is a result-oriented offense.
See Tex. Penal Code Ann. § 22.02(a), (b)(2)(B); Shelby v. State, 448 S.W.3d 431, 439

3Appellant had pleaded true to the repeat-offender notice, and the trial court instructed the jury to find the notice true.
4The assault judgment noted that Gonzalez was responsible for $319 in court costs.
6
(Tex. Crim. App. 2014). A person acts intentionally with respect to the result of his
conduct when it is his conscious objective or desire to cause the result. See Tex. Penal
Code Ann. § 6.03(a). A person acts knowingly with respect to his conduct’s result if
he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b).
Appellant argues that even if Rogers’s attempt to get out of the patrol car was
obvious, no evidence shows Appellant “either intended to cause bodily injury or knew
his actions were likely to result in bodily injury to . . . Rogers.” Appellant asserts that
his obvious intent was to escape, not to injure Rogers. And he posits that it may be
reasonably inferred from the evidence that he could not have expected Rogers to get
out of the patrol car and was not aware that Rogers had been pinned between the
patrol car and the Hummer.
In our due-process review of the sufficiency of the evidence to support
Appellant’s aggravated-assault conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
The trier of fact—here, the jury—is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33
(Tex. Crim. App. 2016). Thus, we may not substitute our judgment for the jury’s by
re-evaluating those implicit findings. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). Instead, we determine whether the necessary inferences are
7
reasonable based upon the cumulative force of the evidence when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015). We must presume that the jury resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Id. at 448–49; see Blea, 483 S.W.3d at 33.
Appellant admitted that he drove the Hummer and that he did not pull over
when the patrol car tried to pull him over. Instead, he drove through the complex’s
parking lot at a high rate of speed to avoid arrest or detention and when he reached a
dead end, he put his car in reverse and accelerated into both patrol cars that had tried
to block him in. Appellant acknowledged that he knew the cars were police cars and
that they were on either side of the Hummer when he reversed into them. Rogers
was pinned between his patrol car and the Hummer, injuring his right leg, his right
elbow, and his chest, which required medical treatment. When Appellant began to
accelerate away, Rogers can be heard on the dashboard video saying that his leg was
hurt. After crashing the Hummer, Appellant admitted he jumped out and ran away.
This evidence, viewed in the light most favorable to the verdict, allowed the
jury to rationally infer that it was Appellant’s conscious objective or desire to cause
the result or that he was aware that his conduct was reasonably certain to cause the
result. See, e.g., Onyinyechi v. State, No. 01-16-00551-CR, 2017 WL 3027665, at *3–4
(Tex. App.—Houston [1st Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated
for publication); Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3–5
(Tex. App.—Houston [1st Dist.] Apr. 8, 2010, pet. ref’d) (mem. op., not designated
8
for publication); Mayfield v. State, Nos. 09-07-005 CR, 09-07-006 CR, 09-07-007 CR,
2008 WL 4936889, at *4–5 (Tex. App.—Beaumont Nov. 19, 2008, no pet.) (mem.
op., not designated for publication). Contrary to Appellant’s arguments, we cannot
credit inferences that the jury obviously did not nor can we ignore inferences that the
jury implicitly drew. See Murray, 457 S.W.3d at 448–49; see also Patrick v. State, 906
S.W.2d 481, 487 (Tex. Crim. App. 1995) (recognizing jury may infer intent from
defendant’s words, acts, and conduct). A rational fact-finder could have found
beyond a reasonable doubt that Appellant knew the police officers were intent on
apprehending him and, out of necessity, would step out of their patrol cars after
blocking his Hummer in. The fact-finder could have found beyond a reasonable
doubt that Appellant acted intentionally or knowingly in injuring Rogers by reversing
and accelerating into the patrol cars, knowing that they were there. We overrule
Appellant’s second point.
III. JURY-CHARGE ERROR: AGGRAVATED ASSAULT
In his first point, Appellant recognizes that he did not object to the jury charge
and argues that he was egregiously harmed by the trial court’s inclusion of a mental
state that was not included in the aggravated-assault indictment—recklessness. The
State “acknowledges that a trial court improperly broadens an indictment by including
the reckless culpable mental state when the indictment just alleges the intentional and
knowing culpable mental states even though the aggravated assault statute permits
conviction based on reckless conduct.” Indeed, the indictment alleged the culpable
9
mental states of intentionally and knowingly, but the charge additionally instructed the
jury on recklessness in the abstract and application paragraphs regarding aggravated
assault. Accordingly, both Appellant and the State focus on whether Appellant
suffered egregious harm, which is the appropriate standard for jury-charge error that
was not objected to. See Tex. Code Crim. Proc. Ann. art. 36.19; Nava v. State,
415 S.W.3d 289, 298 (Tex. Crim. App. 2013).
To make this fact-specific determination, we consider the entire charge; the
state of the evidence, including contested issues and the weight of the probative
evidence; the parties’ jury arguments, including any statements made to the jury by the
State, Appellant’s counsel, or the trial court during trial; and any other relevant
information in the record. See Arrington v. State, 451 S.W.3d 834, 840, 844 (Tex. Crim.
App. 2015); Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.
State, 332 S.W.3d 483, 489–90 (Tex. Crim. App. 2011); Hutch v. State, 922 S.W.2d 166,
171 (Tex. Crim. App. 1996); see also Tex. Code Crim. Proc. Ann. art. 36.19. We look
not for theoretical harm but for actual harm. See Arrington, 451 S.W.3d at 840, 844;
Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Egregious harm is a “high
and difficult standard” to meet, and such a determination must be “borne out by the
trial record.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).
A. THE ENTIRE JURY CHARGE
In the abstract portion of the charge, the trial court defined intentional and
knowing, but also defined recklessness. The abstract charge instructed that a person
10
commits aggravated assault of a public servant if the person acts intentionally,
knowingly, or recklessly. In the application paragraph, the charge again included
recklessly along with intentionally and knowingly as applicable culpable mental states.
Cf. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (“Where the application
paragraph correctly instructs the jury, an error in the abstract instruction is not
egregious.”); Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994) (holding
court “may consider the degree, if any, to which the culpable mental states were
limited by the application portions of the jury charge”). In sum, the charge authorized
the jury to convict Appellant on a lesser culpable mental state than that with which he
was charged, lowering the State’s burden of proof. Nothing in the charge, such as the
application paragraph for the offense at issue, lessened the effect of the error. This
factor weighs in favor of egregious harm. See Limon v. State, No. 03-10-00666-CR,
2012 WL 5392160, at *3 (Tex. App.—Austin Nov. 2, 2012, no pet.) (mem. op., not
designated for publication).
B. THE STATE OF THE EVIDENCE
As we discussed above, the evidence supported Appellant’s guilt of either
knowing or intentional conduct with respect to the result of his actions. See Mabry v.
State, Nos. 02-13-00066-CR, 02-13-00067-CR, 2014 WL 4463117, at *6–7 (Tex.
App.—Fort Worth Sept. 11, 2014, pet. ref’d) (mem. op., not designated for
publication); Rivera v. State, 12 S.W.3d 572, 577 (Tex. App.—San Antonio 2000, pet.
ref’d). Importantly, Appellant admitted that he knew police officers were trying to
11
pull him over, that he sped off, and that he crashed into the police cars after he hit a
dead end. See Faulkenberry v. State, No. 03-18-00265-CR, 2018 WL 3625791, at *5
(Tex. App.—Austin July 31, 2018, pet. ref’d) (mem. op., not designated for
publication); Russell v. State, No. 05-00-01978-CR, 2002 WL 59264, at *6 (Tex. App.—
Dallas Jan. 16, 2002, pet. ref’d) (not designated for publication). This factor weighs
against egregious harm.
C. STATEMENTS TO THE JURY
During voir dire, the prosecutor argued that it had to prove that Appellant
committed aggravated assault of a public servant intentionally, knowingly, or
recklessly, but “[n]ot all three.” He stressed to the venire that it could find Appellant
guilty if it believed “he, at the most, intentionally or at the very least recklessly”
committed the aggravated assault. The prosecutor defined “reckless” and then asked
the venire what a driver could do that would equate to recklessness—consciously
disregarding the likelihood of the result of the driver’s conduct. See Tex. Penal Code
Ann. § 6.03(c). At the end of several hypotheticals about reckless driving, the
prosecutor asked if recklessness would “not [be] enough” for any of the
veniremembers; several indicated that they were “good on reckless.” However,
Appellant’s counsel also discussed recklessness in the context of driving, pointing out
that almost any action done while driving could be considered reckless.
Before opening arguments, the prosecutor read the indictment to the jury and
correctly read the two indicted culpable mental states—intentionally or knowingly.
12
Recklessly was not mentioned. During his opening statement to the jury, Appellant’s
counsel stated that a “key element” of the State’s case was whether the offense had
been committed “intentionally, knowingly or reckless[ly].” However, the prosecutor
argued to the jury in her opening statement that the evidence would show Appellant
“intentionally uses his vehicle to commit assault against Officer Rogers that night.”
That same prosecutor, in her closing argument, repeatedly mentioned
recklessness as a culpable mental state that the jury was authorized to consider along
with intentionally and knowingly:
There are three state-of-mind requirements that are within aggravated assault of a public servant. You-all don’t have to agree on the same state of mind. For example, four of you may decide that this defendant was reckless on April 24th, 2017. And reckless is defined basically as the Defendant is aware of a fact but consciously disregards that fact in his actions.

. . . .

You heard testimony that the Defendant was reckless in the way he drove his vehicle through that apartment complex, and he was reckless in reversing it into Officer Chambers’ and Rogers’ patrol vehicle and Officer Harris who testified as well. The four of you – four out of the twelve may decide the Defendant was reckless.

Four of you may decide that the defendant acted knowingly in the aggravated assault on April 24th, 2017. The knowingly state of mind requirement is basically that the Defendant was aware his conduct was reasonably certain to cause a result and he disregarded that.

The evidence we have for knowingly is really by the defendant’s own admission . . . that the police officers had parked behind him so close that he was unable to move.

. . . .
13

Four of you can decide the Defendant acted knowingly. The other four can decide the Defendant acted intentionally. There is sufficient evidence for that as well beyond a reasonable doubt. . . .

. . . .

That’s your intentionally state of mind. You all 12 don’t have to agree on the same state of mind requirement.

The prosecutor further argued that the jury could convict Appellant of aggravated
assault of a public servant if it found one of the three culpable mental states and
stated that Appellant had been reckless by putting his car in reverse.
In Appellant’s closing argument to the jury, counsel asserted that neither
intentional nor knowing “fits in there” because Appellant did not “intend to hit that
officer.” Appellant’s counsel further stated that “it [was] a reckless act to start to pull
the car back.” The second prosecutor, in his closing jury argument, mentioned the
three culpable mental states, including recklessness, and argued that Appellant’s
conduct was “an intentional act” and “in the very least, knowingly is there.” But he
continued and asserted that evidence showing Appellant was “reckless is
overwhelming.”
We conclude that recklessness was repeatedly mentioned as an applicable
culpable mental state, co-equal with intentional or knowing conduct. The State
stressed recklessness as an alternative theory if the jury could not find intentional or
knowing conduct. This factor weighs in favor of an egregious-harm finding. See Kuhn
14
v. State, 393 S.W.3d 519, 530–31 (Tex. App.—Austin 2013, pet. ref’d); Limon,
2012 WL 5392160, at *3–4.
D. OTHER RELEVANT INFORMATION
Neither the State nor Appellant points to any other record information relevant
to our harm analysis; but courts have considered things such as the jury’s rejection of
a charged count and whether the jury sent clarification requests during their
deliberations. See Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d). The jury convicted Appellant of both counts it considered and
sent no clarification requests during its guilt deliberations. This factor is neutral.
E. SUMMARY OF HARM DETERMINATION
As we recognized earlier, egregious harm is a high hurdle to clear. See Villarreal,
453 S.W.3d at 433. Only if a jury-charge error affects “the very basis of the case,
deprives the defendant of a valuable right [such as the right to a fair and impartial
trial], or vitally affects a defensive theory” may we declare that egregious harm
occurred. State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016); Marshall v.
State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
The charge here was erroneous by including, defining, and applying a non
indicted culpable mental state for aggravated assault of a public servant. Both the
State and Appellant argued the meaning and application of recklessness to the jury.
The State argued that Appellant’s actions were intentional and knowing but also that
they were reckless. And after having questioned the venire during voir dire if the
15
members could be “good” with reckless, the State argued to the jury in closing
argument that the individual jurors did not have to agree on the culpable mental state
(including recklessness) each believed had been proven. Cf. Starks v. State, No. 05-07
00944-CR, 2008 WL 4981633, at *2 (Tex. App.—Dallas Nov. 25, 2008, pet. ref’d)
(mem. op., not designated for publication) (finding no egregious harm after non
indicted mental state of recklessness was charged because “[r]ecklessness was not
discussed at voir dire or in closing argument at guilt/innocence” and because “[t]here
was no evidence that appellant acted recklessly during the incident”).
Although the evidence supported Appellant’s conviction under the charged
mental states of intentionally or knowingly, the charge itself and the tenor of the trial
lowered the State’s burden to prove Appellant guilty beyond a reasonable doubt of the
indicted offense. Brown v. State, No. 04-03-00009-CR, 2004 WL 383342, at *6 (Tex.
App.—San Antonio Mar. 3, 2004), pet. dism’d, No. PD-0701-04, 2005 WL 1398609
(Tex. Crim. App. June 15, 2005) (per curiam) (not designated for publication). This
deprived Appellant of a fair trial. We conclude that Appellant was egregiously harmed
by the inclusion of recklessness in the charge as an applicable culpable mental state.
See Uddin v. State, 503 S.W.3d 710, 717–22 (Tex. App.—Houston [14th Dist.] 2016, no
pet.); Riley v. State, 447 S.W.3d 918, 928–30 (Tex. App.—Texarkana 2014, no pet.);
Limon, 2012 WL 5392160, at *2–4; Brown, 2004 WL 383342, at *5–6.

Outcome: We conclude that the evidence was sufficient to support the jury’s verdict that
Appellant intentionally or knowingly committed aggravated assault of a public servant.

But by charging the jury on an un-indicted culpable mental state and by arguing to the jury that recklessness was sufficient to convict Appellant, especially where Appellant’s mental state was a disputed fact issue, the charge egregiously harmed Appellant by lowering the State’s burden of proof. We reverse the trial court’s judgment convicting

Appellant of aggravated assault of a public servant and remand for further
proceedings. See Tex. R. App. P. 43.2(d).

Appellant also challenges his conviction for evading arrest or detention and
points to the repetitive fine, which was also assessed as part of his concurrent
aggravated-assault conviction. Because we are reversing the aggravated-assault
judgment, including the imposed fine, we need not address Appellant’s third issue and affirm the trial court’s judgment convicting Appellant of evading arrest or detention.

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