IN THE TENTH COURT OF APPEALS
No. 10-14-00207-CR
DAVID RAY SNEED, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. Fam 13-21634
MEMORANDUM OPINION
The jury convicted David Ray Sneed of the offense of aggravated assault of a
public servant and assessed punishment at fifteen years confinement and a $5,000.00 fine.
TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). We affirm.
Sufficiency of Evidence
In the first issue on appeal, Sneed argues that the evidence is insufficient to
support his conviction for the offense of aggravated assault of a public servant. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as
follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 132 S.Ct. 2712, 183
L.Ed.2d 71 (2012).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
Sneed v. State Page 2 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).
On February 8, 2014, Sergeant Steve Sands, with the Coryell County Sheriff’s
Department, went to Sneed’s home to serve a felony arrest warrant on Sneed. Sergeant
Sands was driving his marked patrol unit and was dressed in his uniform. When he
arrived at Sneed’s residence, there was a locked gate on the front of the property. Behind
the locked gate, there was a parked truck with its flashing lights activated. Sergeant
Sands made contact with Sneed, and Sneed quickly approached the gate telling Sergeant
Sands to “get the f - - k out of here.” Sergeant Sands told Sneed that he saw the lights
flashing and wanted to make sure he was ok. Sneed responded that he was fine and
again told Sergeant Sands to “get the f - - k out of here.” Sergeant Sands left Sneed’s
residence to avoid a confrontation at that time. He drove to a county road and called for
backup.
Sergeant Sands met with Sergeant Ronald Schmidt and deputies Randal Hall and
Ron Morgan to develop a plan of action. They decided that Sergeant Schmidt would
drive by Sneed’s house to determine Sneed’s location. Sergeant Schmidt was in his
county vehicle, an unmarked black Dodge pickup. Sergeant Schmidt testified at trial that
he saw Sneed leave his house carrying a long gun and walk at an “aggressive pace”
toward Sneed’s pickup. Sergeant Schmidt stayed outside of Sneed’s property to see if he
left, and the other deputies set up a perimeter around the area so that they could stop
Sneed if he left in his vehicle. Sergeant Schmidt testified that he heard Sneed yell, “you f
- - king pigs, I see you sitting down there. I told you to leave.” Sergeant Schmidt then
Sneed v. State Page 3 heard several shots fired. He testified that he knew the shots were fired in his direction
because he could see the muzzle flashes that looked like a small ball. Texas Ranger Jason
Bobo testified at trial and further explained that a person looking in the direction of the
gun would see a round muzzle flash while a person looking to the side of the gun would
see a delineation or more of a line type muzzle flash.
A person commits the offense of aggravated assault if the person commits assault
as defined in Section 22.01 of the Penal Code and the person uses or exhibits a deadly
weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.01 (a) (2) (West
2011). The offense is a felony of the first degree if the offense is committed:
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant
TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). Sneed argues that the evidence is
insufficient to show that he knew of Sergeant Schmidt’s status as a peace officer or that
he knew he was discharging an official duty.
Sergeant Sands went to Sneed’s residence in a marked patrol unit and dressed in
uniform to serve a felony warrant. He left the premises after Sneed became
confrontational. The record indicates that Sneed saw Sergeant Sands dressed in uniform.
Later that evening, the four sheriff deputies were in the area around Sneed’s home to
serve the warrant. Sergeant Schmidt was outside the gate of Sneed’s property where
Sergeant Sands was located earlier that day during the confrontation with Sneed.
Sergeant Schmidt heard Sneed yell, “you f - - king pigs, I see you sitting down there. I
Sneed v. State Page 4 told you to leave.” Sergeant Schmidt testified that “pig” is a common derogatory word
for police officers. Sneed then fired shots at Sergeant Schmidt.
The jury could have drawn the inference that Sneed knew Sergeant Schmidt was
a public servant. See Lucio v. State, 351 S.W.3d 878, 894 (quoting Jackson, 443 U.S. at 319,
99 S.Ct. 2781) (stating that sufficiency standard " 'gives full play to the responsibility of
the trier of fact fairly ... to draw reasonable inferences from basic facts to ultimate facts.'
").
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IN THE TENTH COURT OF APPEALS
No. 10-14-00207-CR
DAVID RAY SNEED, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. Fam 13-21634
MEMORANDUM OPINION
The jury convicted David Ray Sneed of the offense of aggravated assault of a
public servant and assessed punishment at fifteen years confinement and a $5,000.00 fine.
TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). We affirm.
Sufficiency of Evidence
In the first issue on appeal, Sneed argues that the evidence is insufficient to
support his conviction for the offense of aggravated assault of a public servant. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as
follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 132 S.Ct. 2712, 183
L.Ed.2d 71 (2012).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
Sneed v. State Page 2 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).
On February 8, 2014, Sergeant Steve Sands, with the Coryell County Sheriff’s
Department, went to Sneed’s home to serve a felony arrest warrant on Sneed. Sergeant
Sands was driving his marked patrol unit and was dressed in his uniform. When he
arrived at Sneed’s residence, there was a locked gate on the front of the property. Behind
the locked gate, there was a parked truck with its flashing lights activated. Sergeant
Sands made contact with Sneed, and Sneed quickly approached the gate telling Sergeant
Sands to “get the f - - k out of here.” Sergeant Sands told Sneed that he saw the lights
flashing and wanted to make sure he was ok. Sneed responded that he was fine and
again told Sergeant Sands to “get the f - - k out of here.” Sergeant Sands left Sneed’s
residence to avoid a confrontation at that time. He drove to a county road and called for
backup.
Sergeant Sands met with Sergeant Ronald Schmidt and deputies Randal Hall and
Ron Morgan to develop a plan of action. They decided that Sergeant Schmidt would
drive by Sneed’s house to determine Sneed’s location. Sergeant Schmidt was in his
county vehicle, an unmarked black Dodge pickup. Sergeant Schmidt testified at trial that
he saw Sneed leave his house carrying a long gun and walk at an “aggressive pace”
toward Sneed’s pickup. Sergeant Schmidt stayed outside of Sneed’s property to see if he
left, and the other deputies set up a perimeter around the area so that they could stop
Sneed if he left in his vehicle. Sergeant Schmidt testified that he heard Sneed yell, “you f
- - king pigs, I see you sitting down there. I told you to leave.” Sergeant Schmidt then
Sneed v. State Page 3 heard several shots fired. He testified that he knew the shots were fired in his direction
because he could see the muzzle flashes that looked like a small ball. Texas Ranger Jason
Bobo testified at trial and further explained that a person looking in the direction of the
gun would see a round muzzle flash while a person looking to the side of the gun would
see a delineation or more of a line type muzzle flash.
A person commits the offense of aggravated assault if the person commits assault
as defined in Section 22.01 of the Penal Code and the person uses or exhibits a deadly
weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.01 (a) (2) (West
2011). The offense is a felony of the first degree if the offense is committed:
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant
TEX. PENAL CODE ANN. § 22.02 (b) (2) (B) (West 2011). Sneed argues that the evidence is
insufficient to show that he knew of Sergeant Schmidt’s status as a peace officer or that
he knew he was discharging an official duty.
Sergeant Sands went to Sneed’s residence in a marked patrol unit and dressed in
uniform to serve a felony warrant. He left the premises after Sneed became
confrontational. The record indicates that Sneed saw Sergeant Sands dressed in uniform.
Later that evening, the four sheriff deputies were in the area around Sneed’s home to
serve the warrant. Sergeant Schmidt was outside the gate of Sneed’s property where
Sergeant Sands was located earlier that day during the confrontation with Sneed.
Sergeant Schmidt heard Sneed yell, “you f - - king pigs, I see you sitting down there. I
Sneed v. State Page 4 told you to leave.” Sergeant Schmidt testified that “pig” is a common derogatory word
for police officers. Sneed then fired shots at Sergeant Schmidt.
The jury could have drawn the inference that Sneed knew Sergeant Schmidt was
a public servant. See Lucio v. State, 351 S.W.3d 878, 894 (quoting Jackson, 443 U.S. at 319,
99 S.Ct. 2781) (stating that sufficiency standard " 'gives full play to the responsibility of
the trier of fact fairly ... to draw reasonable inferences from basic facts to ultimate facts.'
"). Viewing the evidence in the light most favorable to the verdict, we therefore conclude
that the evidence was sufficient to prove that Sneed knew he was assaulting a public
servant.
Sneed next contends that the evidence is insufficient to establish that he knew
Sergeant Schmidt was discharging an official duty. Sneed concedes that the record
reflects evidence of the official duties of law enforcement officers; however, he contends
that there is no evidence he knew that Sergeant Schmidt was executing those official
duties at that time. To prove either capital murder or aggravated assault of a peace
officer, the State must show that the peace officer is "acting in the lawful discharge of an
official duty," but the defendant need not know that specific fact. See Mays v. State, 318
S.W.3d 368,383-384 (Tex. Crim. App. 2010). The State must prove the defendant knew
that he was assaulting a peace officer; however, proof that he also knew the officer was
"lawfully discharging an official duty" is unnecessary. Salazar v. State, 643 S.W.2d 953,
956 (Tex. Crim. App. 1983). The evidence is sufficient to support a finding that the
deputies were discharging an official duty. We overrule the first issue.
Sneed v. State Page 5 Jury Charge
In the second issue, Sneed argues that the trial court erred in charging the jury.
Appellate review of alleged jury-charge error involves a two-step process. Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, the court must determine
whether error actually exists in the charge. If error is found, the court must then evaluate
whether sufficient harm resulted from the error to require reversal. Id. at 731-32.
Sneed complains that the inclusion of the theory of transferred intent in the jury
charge unlawfully enlarged the theory of conviction. The jury was instructed on the law
of transferred intent as follows:
A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired contemplated or risked is that a different person or property was injured, harmed, or otherwise affected.
The jury was then instructed in the application paragraph as follows:
Now bearing in mind the following instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, David Ray Sneed, on or about the 8th day of February, 2013, in the County of Coryell, and State of Texas, as alleged in the indictment, did then and there intentionally or knowingly threaten Ronald Schmidt with imminent bodily injury by discharging a firearm in the direction of Ronald Schmidt, and did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault, and the Defendant did then and there know that the said Ronald Schmidt was then and there a public servant, to-wit: a deputy for the Coryell County Sheriff’s Office, and that the said Ronald Schmidt was then and there lawfully discharging an official duty, to-wit: responding to assist in the execution of an outstanding warrant, then you will find the defendant guilty of the offense of aggravated assault on a public servant with a deadly weapon. OR Still bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, David Ray Sneed, on or about the 8th day of February, 2013, in the County of Coryell,
Sneed v. State Page 6 and State of Texas, as alleged in the indictment, that the defendant while intending to threaten Steve Sands by discharging a firearm in the direction of Steve Sands, and while then and there using or threatening to use a deadly weapon to-wit: a firearm, during the commission of said assault, and while knowing that Steve Sands was then and there a public servant, to-wit: a deputy for the Coryell County Sheriff’s Office and while Steve Sands was then and there lawfully discharging an official duty, to-wit: attempting to execute an outstanding warrant, did then and there threaten Ronald Schmidt with imminent bodily injury by discharging a firearm in the direction of Ronald Schmidt, then you will find the defendant guilty of the offense of aggravated assault on a public servant with a deadly weapon.
The statutory principle of transferred intent is raised when there is evidence a
defendant with the required culpable mental state intends to injure or harm a specific
person but injures or harms a different person. Manrique v. State, 994 S.W.2d 640, 647
(Tex. Crim. App. 1999); Delacerda v. State, 425 S.W.3d 367, 397 (Tex.App.-Houston [1 Dist.]
2011, pet. ref’d). There is evidence that Sergeant Sands, dressed in uniform, approached
Sneed at the gate of his property, and Sneed confronted Sergeant Sands and told him to
leave. Later that night, Sergeant Schmidt was in the same area where Sergeant Sands
previously encountered Sneed. Sergeant Schmidt heard Sneed yell, “you f - - king pigs,
I see you sitting down there. I told you to leave.” Sergeant Schmidt then saw Sneed fire
shots in his direction. We find that the trial court did not err in instructing the jury on
the theory of transferred intent. There is evidence that Sneed threatened Sergeant
Schmidt with imminent bodily injury by discharging a firearm in the direction of
Sergeant Schmidt while intending to threaten Sergeant Sands by discharging a firearm in
the direction of Steve Sands. We overrule the second issue.
Conclusion
We affirm the trial court’s judgment.
Sneed v. State Page 7 AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 7, 2015 Do not publish [CR25]
Sneed v. State Page 8