Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00069-CR Randall Scott Swank, Appellant v. The State of Texas, Appellee On appeal from the 18th District Court of Johnson County, Texas Judge Sydney B. Hewlett, presiding Trial Court Cause No. DC-F202300805 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION Randall Scott Swank was convicted of two counts of aggravated assault with a deadly weapon and one count of driving while intoxicated, a third offense. He was sentenced to life in prison on each aggravated assault conviction and 20 years in prison for the driving while intoxicated conviction. We affirm the trial court’s judgments. BACKGROUND After a morning baseball tournament and then swimming at her parents’ house, Siobhan Allen and her two sons were traveling to a Walmart in Johnson County, Texas. One son, A.J., was in the front passenger seat, the other son was in the back passenger seat. As they neared an intersection not too far from Allen’s parents’ house, Allen’s vehicle was struck by another vehicle traveling in the opposite direction and attempting to turn left in front of her. Allen and her two sons were injured. Swank was the driver of the vehicle that struck Allen and was ultimately charged with the aggravated assault of Allen and A.J., with a deadly weapon—Swank’s vehicle, and driving while intoxicated, a third offense. SUFFICIENCY OF THE EVIDENCE In his first issue, Swank contends the evidence is insufficient to show that he acted recklessly to sustain his convictions for aggravated assault with a deadly weapon. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows: When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer “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 Swank v. State Page 2 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a “divide and conquer” strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13. We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665. Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018). Swank v. State Page 3 A person commits the offense of aggravated assault with a deadly weapon if he: (1) intentionally, knowingly, or recklessly caused bodily injury to a person, and (2) used or exhibited a deadly weapon during the commission of the assault. TEX. PENAL CODE § 22.01 (a) & § 22.02 (a). A motor vehicle may be a deadly weapon when used in a manner capable of causing death or serious bodily injury. Id. § 1.07(a)(17)(B); Couthren v. State, 571 S.W.3d 786, 789 (Tex. Crim. App. 2019). In this case, Swank was charged in counts One and Two with committing aggravated assault with a deadly weapon by three alternate methods: (1) operating a motor vehicle under the influence of alcohol; (2) failing to yield the right of way; or (3) driving into the oncoming lane of traffic. On appeal, Swank only challenges the sufficiency of the evidence to support whether he recklessly committed the offenses in any of the alternate methods. “Reckless” is one of four culpable mental states by which an offense may be committed. See TEX. PENAL CODE § 6.02. By its nature, a culpable mental state must generally be inferred from the circumstances. Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020); Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). A reviewing court cannot read an accused's mind and, absent a confession, must infer his mental state from his acts, words, and conduct. Id. A person acts “recklessly” when he is subjectively aware of a substantial Swank v. State Page 4 and unjustifiable risk that specific circumstances existed and consciously disregards that risk. TEX. PENAL CODE § 6.03(c); Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020); see Williams v. State, 235 S.W.3d 742, 753-54 (Tex. Crim. App. 2007). The risk referred to must be “of such a nature and degree that it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.” TEX. PENAL CODE § 6.03(c). In reviewing the sufficiency of the evidence of recklessness, the question before this Court is whether, after viewing all the evidence in the light most favorable to the verdict, any rational finder of fact would have found beyond a reasonable doubt that Swank acted recklessly. Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020). See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The day of the accident was sunny and nice. The roadway, FM 731, on which both Allen and Swank were driving in opposite directions, was clear and flat, with a good line of sight. Allen was traveling northbound in her Ford Explorer with her two sons while Swank was traveling southbound in a Nissan Armada. As Allen and her children neared the Cross Timbers intersection with FM 731, she saw a Nissan Armada approaching from the opposite direction. Allen testified that the Nissan began turning left, without stopping, across Allen’s lane of traffic. Although Allen swerved to the right to avoid a collision, Swank v. State Page 5 the Nissan struck her anyway. The collision occurred on the shoulder of the northbound lane. Allen’s son, A.J., also testified that a “car came and … started turning and mom swerve[d] and we got hit.” Kevin Travitz, who was sitting on his pickup tailgate in a nearby restaurant parking lot, saw the Nissan turn in front of Allen’s vehicle and confirmed the location of the collision. Travitz considered the collision to be significant, and photographs of the vehicles showed substantial damages. Allen was transported to the hospital with cuts, bruises, and a sprained wrist and knee. A.J. sustained cuts and bruises but was not sent to the hospital. When Deputy Lee from the Johnson County Sheriff’s Office arrived at the scene, he located Swank in the restaurant across the road from where the Nissan came to rest. As he had Swank accompany him to his patrol vehicle, he saw that Swank shuffled his feet as he walked, Swank’s eyes were glassy and his face drooped, and Swank smelled of an alcoholic beverage. Lee also noticed that Swank’s speech was slurred and that it took Swank longer than normal to answer any questions. When Trooper Reid with the Department of Public Safety arrived, he spoke with Swank who said he was attempting to turn onto Cross Timbers from 731. Reid noticed an odor of alcohol on Swank’s breath and asked if Swank had been drinking. Swank initially said that he had but then denied drinking, saying that he had thrown his drink away. After Swank v. State Page 6 investigating the scene and speaking to witnesses, Reid determined that (1) Swank’s Nissan “had crossed over into the northbound lane to make a turn onto Cross Timbers,” (2) the “driver of the Ford had attempted to take evasive action” and veered “to the right to try and to avoid the crash,” and (3) both vehicles collided on the shoulder of the northbound lane. He agreed that what occurred was a “head-on” collision. Reid also determined that Swank’s intoxication and failure to yield the right of way turning left were contributing factors to the collision. Based on the above evidence viewed in the light most favorable to the verdict, the jury could have reasonably inferred from the evidence and found beyond a reasonable doubt that Swank recklessly caused both counts of aggravated assault with a deadly weapon by any of the three methods charged. Accordingly, the evidence was sufficient to support his convictions for aggravated assault with a deadly weapon under Counts One and Two, and his first issue is overruled. DOUBLE JEOPARDY Because two counts of Swank’s indictment charged him with aggravated assault with a deadly weapon by three alternative methods of committing the offenses and one of those methods was by driving while under the influence of alcohol, Swank contends in his second issue that it was “possible” he was Swank v. State Page 7 punished multiple times for the same offense because the driving while intoxicated offense also may have been the method of committing the aggravated assault offenses. Swank concedes this issue is foreclosed by the Texas Court of Criminal Appeals’ decision in Gonzalez because Swank did not object on the grounds of double jeopardy in the trial court below. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (“appellant had the burden to preserve, in some fashion, a double jeopardy objection at or before the time the charge [was] submitted to the jury.” (internal quotations omitted)). However, the Court of Criminal Appeals has also held that a double jeopardy claim may be raised for the first time on appeal if two conditions are met: (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record; and (2) when enforcement of the usual rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (quoting Gonzalez, 8 S.W.3d at 643) (quotations omitted). Swank appears to concede these conditions have not been met as well because he asserts he only presents his issue here so that he may preserve his right to request a reconsideration of Gonzalez by the Court of Criminal Appeals. Nevertheless, based on this Court’s review of the record pursuant to Swank’s first issue, we agree that a double jeopardy violation is not clearly apparent from the face of this record since at least one of the Swank v. State Page 8 theories of aggravated assault with a deadly weapon submitted to the jury would not constitute a double jeopardy violation, and there was sufficient evidence to support that valid theory. See Langs, 183 S.W.3d at 687. Swank’s second issue is overruled. CONCLUSION Having overruled each of Swank’s issues, we affirm the trial court’s judgments. LEE HARRIS Justice OPINION DELIVERED and FILED: September 10, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CRPM Swank v. State Page 9