Duchan, Karl Lyn v. State

Affirmed and Opinion filed January 9, 2007 Affirmed and Opinion filed January 9, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00232-CR ____________ KARL LYN DUCHAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1036726 O P I N I O N Appellant, Karl Lyn Duchan, appeals from his conviction for aggravated robbery. After a jury found him guilty, the trial court sentenced him to 35 years in prison. In three issues, appellant contends that the evidence was legally and factually insufficient to support the verdict and that the trial court erred in refusing to charge the jury on a lesser included offense. We affirm. Background At trial, Nydia Alcantara, the complainant, testified that on August 9, 2005, after driving her Ford Explorer through the drive-through lane at her bank, she dropped the teller envelope out of her window. She got out to pick it up, and when she did so, appellant pushed her down, jumped in the Explorer, and began to drive away. When he exited the bank parking lot, he immediately became stuck in traffic. Alcantara ran after him and began knocking on the passenger window. Appellant cursed at her. She then went around to the driver=s door and opened it. Appellant threw a punch at her, and she tried to slam his hand in the door. In response, he hit her with the door and tried to do so a second time. When appellant then stepped on the gas in an attempt to hit Alcantara with the vehicle, she moved out of the way. She said that if she had not jumped on the back of a truck, she would have been hit. Alcantara spotted a police officer in a nearby vehicle and yelled for help. The officer got out of his vehicle, put his hand on his weapon, and instructed appellant to get out of the Explorer. Appellant then drove the vehicle at Alcantara to pin her against a truck, which was in front of the Explorer, and a car, which was beside it. Appellant looked at Alcantara and cursed at her while he drove at her. She jumped over the car to get out of the way, and the Explorer nicked her leg and collided with the car. She said the contact with her leg was not a hard hit, but it did hurt. She said that she thought he was trying to hit her and she feared that he was going to kill her. Although by the time she got home that day, she had a small bruise where the Explorer had impacted, she declined to go to the hospital for treatment. The car beside the Explorer moved enough for the Explorer to go by. Appellant left the Explorer in drive, got out, and ran away. The Explorer continued into the intersection, where Alcantara caught up to it, crawled in, and drove it into a parking lot. She said at that point she was in shock. Police officers arrived at the scene and told her that two men had caught appellant, and appellant was brought before her for identification. Rosa Breland testified that on August 9, 2005, she was in her car waiting for a stop light to change when she saw Alcantara running toward a vehicle. Alcantara was yelling that someone was trying to steal her vehicle and screaming at the driver, whom Breland identified as appellant, to get out. Alcantara opened the driver=s side door, and appellant tried to punch her. Alcantara stepped back and appellant turned the vehicle in her direction and drove as if he was trying to run over her. After trying to hit Alcantara with the vehicle, appellant got out, and the vehicle collided with and damaged Breland=s vehicle. Breland then moved her car out of the way, and Alcantara=s vehicle continued into the intersection.[1] David Martinez testified that on August 9, 2005, he was in his car when he saw a man and woman fighting. The man, whom Martinez identified as appellant, was in the driver=s seat of a Ford Explorer. Appellant hit the woman in the face with the door and attempted to punch her. Then, when the woman moved around to the front of the Explorer, appellant Ahit the gas pedal,@ and the Explorer ran into the vehicle in front of it. Martinez said that the woman moved away to avoid being crushed between the vehicles. He said that the resulting wreck was Aa decent crash@ but that appellant had not attained sufficient speed to do significant damage. Appellant got out of the Explorer and ran behind Martinez=s vehicle. Martinez chased appellant, and he and another man, whom Martinez identified as APascual,@ restrained appellant until the police arrived. Pascual Rivera testified that on August 9, 2005, he was at an auto repair shop waiting for his vehicle when he saw a woman yelling at someone in a Ford Explorer to give her back her car. There was a struggle over the door, and the woman went to the front of the Explorer. The Explorer then moved forward and the woman Agot pushed to the side.@ He could not tell for sure but thinks that she got hit and thinks that the driver, whom he identified as appellant, must have been trying to hit her. Appellant then accelerated again before getting out and running away. Rivera gave chase, and ultimately, he and another man detained appellant until police arrived. Deputy Dario Almendarez, of the Harris County Sheriff=s Office, testified that on August 9, 2005, he was waved down by several individuals on the side of the road. He stopped and was told that a man had Acar-jacked@ someone. Almendarez opined that based on his experience, a motor vehicle could be a deadly weapon and under the facts of the case as he understood them, a vehicle had been used as a deadly weapon. Appellant also testified. He admitted stealing Alcantara=s vehicle. He stated that he spotted the vehicle, parked and with the engine running, in a bank parking lot. He did not see anyone around the vehicle, but when he got in and slammed the door, a woman who was standing by the ATM machine started yelling and running toward the vehicle. He figured the vehicle was hers, so he tried to drive out of the parking lot. He said that he immediately became ensnared in traffic. He denied ever attempting to hit Alcantara with the vehicle, but he said the vehicle may have moved forward when he let up on the brake prior to exiting and running away. He admitted that he purposefully got in the vehicle and attempted to steal it. He said that he wanted the truck. Sufficiency In his first two issues, appellant contends that the evidence was legally and factually insufficient to support the verdict. Specifically, he contends that the State failed to prove that he used or exhibited a deadly weapon as asserted in the indictment and found by the jury. In addressing these sufficiency challenges, we utilize the well-established standards of review. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standards). Appellant makes no distinction in his brief between his legal and factual sufficiency arguments. A person commits aggravated robbery if, among other possibilities, he or she uses or exhibits a deadly weapon during the course of a robbery. Tex. Penal Code Ann. ' 29.03(a) (Vernon 2003). The Texas Penal Code lists two categories of Adeadly weapons.@ See id. ' 1.07 (Vernon Supp. 2006); Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005). The first category is comprised of those instruments designed to be deadly weapons, including Aa firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.@ Tex. Penal Code Ann. ' 1.07(a)(17)(A). The second category is comprised of those instruments whose use transforms them into deadly weapons, including Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Id. ' 1.07(a)(17)(B). A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). Proof that the defendant possessed a specific intent to use an instrument as a deadly weapon is not required. Id. Appellant points to the following factors as militating against the jury=s finding that the Explorer constituted a deadly weapon by the manner of its use or intended use: (1) there was no expert testimony suggesting appellant used the vehicle in a manner capable of causing serious injury or death; (2) the Explorer did not hit Alcantara hard, and she did not require medical attention; (3) the Explorer was hemmed in on all sides; (4) the Explorer sustained no damage when it crashed into the other vehicle; and (5) the Explorer was either stopped or moving slowly during the entire episode. Regarding appellant=s first contention, on the need for expert testimony, while such testimony may be useful in some circumstances, there is no requirement that the State introduce expert testimony to establish that an instrument was a deadly weapon. In re S.B., 117 S.W.3d 443, 448 (Tex. App.CFort Worth 2003, no pet.) (citing Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980)). Indeed, evidence is frequently held sufficient to prove use of a deadly weapon even in the absence of expert testimony. See, e.g., Drichas, 175 S.W.3d at 798-800 (reversing court of appeals and holding that evidence was legally sufficient to prove use of a deadly weapon where eyewitness testimony suggested defendant drove the wrong way on the highway, posing a danger to other motorists). The second factor cited by appellant, regarding the fact that Alcantara was not seriously injured, may have been considered by the jury but does not render the evidence insufficient. In order to prove that a defendant used or exhibited a deadly weapon, the State is not required to show that the defendant caused or even intended to cause death or serious bodily injury with the instrument in question; rather, the State must only prove that the actual use or intended use of the object was capable of causing death or serious bodily injury. Johnston v. State, 150 S.W.3d 630, 638 (Tex. App.CAustin 2004, no pet.). Likewise, regarding the remainder of the factors cited by appellantCeach relating to the speed of the vehicleCthese may have been considered by the jury, but they do not render the evidence legally or factually insufficient. See generally Longoria v. State, 154 S.W.3d 747, 757 n.8 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (A[I]t is generally the jury=s duty to reconcile conflicts in the evidence . . . .@). As detailed above, there was testimony from several sources that appellant was behind the wheel of the Explorer and Alcantara was in front of it when the vehicle moved forward. Alcantara herself testified that appellant twice attempted to hit her with the Explorer and tried to pin her between the Explorer and another vehicle. She stated that appellant was looking at her and cursing at her while he stepped on the gas. She indicated that she avoided being injured more severely only because she jumped out of the way. There was also evidence from several sources that the vehicle the Explorer collided with was damaged in the collision, even though the Explorer apparently was not. Certainly, the jury could have surmised that since appellant attempted to pin Alcantara between two vehicles and drove at her with sufficient velocity to damage another vehicle, Alcantara could have been severely injured or even killed if she had not gotten out of the way. Accordingly, we find that the evidence was legally and factually sufficient to support the jury=s apparent finding that appellant operated the vehicle in a manner capable of causing death or serious bodily injury. See King, 29 S.W.3d at 562; Johnson, 23 S.W.3d at 11. We overrule appellant=s first two issues. Jury Charge In his third issue, appellant contends that the trial court erred in refusing to charge the jury on a lesser included offense. A defendant is entitled to a lesser‑included offense instruction in the charge if (1) the requested charge is a lesser‑included offense of the offense charged, and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005). The credibility of the evidence, and whether it conflicts with other evidence, must not be considered in deciding whether the charge on the lesser‑included offense should be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). Here, the trial court instructed the jury on the elements of aggravated robbery and theft. In order to prove aggravated robbery under the charge and applicable law, the State had to show that appellant in the course of committing theft and with intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed Alcantara in fear of imminent bodily injury or death and that he used or exhibited a deadly weapon. See Tex. Penal Code Ann. '' 29.02, 29.03. In order to prove theft, the State was required to show that appellant unlawfully appropriated property with intent to deprive the owner of property. See id. ' 31.03(a). Appropriation of property is unlawful if it Ais without the owner=s effective consent.@ Id. ' 31.03(b)(1). Appellant additionally requested a submission on unauthorized use of a motor vehicle. A person commits the offense of unauthorized use of a motor vehicle when he or she Aintentionally or knowingly operates another=s boat, airplane, or motor‑propelled vehicle without the effective consent of the owner.@ Id. ' 31.07. We first note that unauthorized use of a motor vehicle may certainly be a lesser included offense of both of the charged offenses: aggravated robbery and theft. Griffin v. State, 614 S.W.2d 155, 158 n.4 (Tex. Crim. App. [Panel Op.] 1981); Roy v. State, 76 S.W.3d 87, 96 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Accordingly, we move to the second requirement for submission: whether there is some evidence that appellant was guilty only of the lesser offense. In discussing this requirement, appellant compares the elements of unauthorized use (the requested charge) with those of aggravated robbery (which was one of the offenses charged). Appellant argues that while he admitted taking Alcantara=s vehicle, he denied trying to hit complainant with the vehicle; thus, according to appellant, his testimony constitutes some evidence that he was guilty only of the lesser offense of unauthorized use. Although appellant=s testimony may indeed be some evidence that he was not guilty of aggravated robbery, the trial court also charged the jury on theft. The key distinction between theft and unauthorized use is that theft requires that the defendant intend to deprive the owner of the property in question; whereas, unauthorized use permits conviction if the defendant merely operated another=s vehicle without effective consent. See Tex. Penal Code Ann. '' 31.03(a); 31.07; Flores v. State, 888 S.W.2d 187, 193 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (stating that allegations of theft and unauthorized use Aare the same except that in theft there is the additional element of intent to deprive the owner of the property@). Appellant points to no evidence suggesting that he was merely operating the vehicle without Alcantara=s consent.[2] To the contrary, appellant himself testified that he was trying to Asteal@ the vehicle (not just borrow or use it). See Webster=s Third New International Dictionary 2232 (1993) (defining Asteal@ as Ato practice theft@). Accordingly, appellant has not demonstrated that the trial court erred in refusing to instruct the jury on unauthorized use. See Irving, 176 S.W.3d at 845. We overrule appellant=s third issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed January 9, 2007. Panel consists of Chief Justice Hedges and Justices Edelman and Fowler. Do Not Publish C Tex. R. App. P. 47.2(b). [1] There appears to be a slight discrepancy between Alcantara=s testimony and Breland=s. Alcantara suggested that the Explorer collided with Breland=s car when appellant tried to hit Alcanatra. Breland suggested that the collision occurred after appellant exited the Explorer, leaving it in drive. Reconciling conflicts in the evidence is generally the province of the jury. Longoria v. State, 154 S.W.3d 747, 757 n.8 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). [2] In the section of his brief discussing harm, appellant suggests that unauthorized use was a more plausible option for the jury than theft Agiven the driving facts and the trial court=s refusal to allow the appellant to present testimony concerning the actual value of the stolen Ford Explorer.@ However, he offers no additional explanation of these remarks, and their meaning is unclear.