Apollo Durshaun Gipson v. State

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00349-CR

APOLLO DURSHAUN GIPSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1373406R

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Apollo Durshaun Gipson appeals his convictions for aggravated

assault with a deadly weapon, to-wit: a motor vehicle and for accident involving

injury. In two issues, Gipson argues that the trial court erred by not conducting a

formal competency inquiry and that the evidence is insufficient to support the

jury’s verdicts for either of his convictions. We will affirm.

1 See Tex. R. App. P. 47.4.  II. BACKGROUND

Amhad Hussein testified that during the late evening of June 5, 2013, he

was working at Papaw’s Food Mart, a convenience store in Fort Worth, when he

heard “something . . . like a car accident” outside his store. Hussein said that

when he went outside to investigate, he found a woman, later identified as

Patricia Lovett, laying on the ground next to his car. Hussein recognized Lovett

because she had been inside his store a few minutes earlier. Hussein asked

Lovett whether she needed help, and Lovett said that she needed an ambulance.

According to Hussein, police and paramedics arrived within minutes.

Hussein described what had happened to Lovett as a “[h]it and run”

wherein Gipson drove into Lovett with his car. Hussein also said that his own car

had been hit during the collision that injured Lovett but that there was very little

damage to it. By Hussein’s account, the reason that his own vehicle had very

little damage was because “most of the hit” was absorbed by Lovett as she was

sandwiched between Gipson’s car and his own.

Hussein testified that he knew what had happened to Lovett because the

events were captured on the surveillance camera from his store. While Hussein

was on the stand, the State introduced and published for the jury the captured

video from the surveillance camera.

In the video, Gipson parks his maroon Ford Taurus in a parking spot next

to Hussein’s car. Lovett and another person, later identified as Torre Webb, exit

the vehicle and enter Papaw’s while Gipson remains in his car. A short time

2 later, Lovett exits Papaw’s and stands on the sidewalk in front of the store.

Gipson then exits his vehicle, seemingly exchanging words with Lovett, and then

gets back into his car. Shortly after that, Webb exits Papaw’s and hands a

cellphone to Lovett.

Lovett then appears to dial a number and begin to speak on the phone.

Webb then gets into the back of Gipson’s car. From there, Gipson again exits his

vehicle, and he and Lovett seemingly exchange words again—all the while,

Lovett is on the phone. Lovett also appears to be attempting to keep Gipson’s

car between them. That is, when Gipson approaches Lovett toward the front of

the car, Lovett walks toward the back of it from the other side, and vice versa,

when Gipson turns and approaches Lovett from the rear of the car, Lovett walks

toward the front of it—at all times keeping the car between herself and Gipson.

Gipson then gets back into his car. In short order, Webb exits the car for

good. Gipson then backs his car out of the parking spot, seemingly turning his

car in the direction of Lovett, and then Gipson’s car surges forward, striking

Lovett. The impact appears to pin Lovett between Gipson’s car and Hussein’s

car, and then Lovett disappears from view, falling between the vehicles. The

video also clearly demonstrates that the impact shakes Hussein’s car. Gipson

then places his car in reverse and backs out of the parking lot, out of view of the

surveillance camera. Lovett is partially propped up against Hussein’s car and

partially seated on the ground.

3  Lovett testified that she met Gipson while working as a prostitute. By

Lovett’s account, Gipson approached her in May 2013 and asked her if she

“wanted to go with him because he had drugs and money.” Lovett accepted.

Lovett said that during this time, she was addicted to “crack cocaine and alcohol”

and that her relationship with Gipson was one that included an exchange of sex

for drugs. Lovett said that she quickly began to refer to Gipson as her “best”

friend and that Gipson was “really nice” to her in the beginning. Lovett said that

most of the couple’s time was spent in Gipson’s “maroon Ford Taurus,” which

Lovett said she had driven. She also said that she had never witnessed any

mechanical problems with the car.

Lovett averred that on June 5, 2013, she and Gipson were “riding

around . . . doing drugs[] and . . . drinking vodka.” Lovett said that Gipson had

acquired the money for the drugs and vodka from his grandmother, who lived in a

nursing home. The money did not last and, according to Lovett, neither did

Gipson’s kindness. Lovett said that during the day, Gipson got angry about

Lovett wanting to “go home” and that he struck her “maybe two times.”

Having run out of money for gas, Lovett said that the couple picked up a

friend named “Torre” Webb, who also went by the name of “Johnny,” because he

was willing to buy them gas in exchange for a ride to the store. Lovett described

Gipson as being “jealous[]” of Webb because he knew that Lovett “liked Torre.”

When Webb got out of the vehicle at the store, Lovett and Gipson “had words”

and “started arguing.” According to Lovett, the tenor of Gipson’s argument “really

4 terrified” her. Lovett said that when the three of them stopped at Papaw’s, and

once Webb had exited the vehicle, she also exited the vehicle. Lovett said that

she felt “safe if [she stood] in front of the store.” From there, Lovett said that she

dialed 911. By Lovett’s account, when Gipson saw her calling 911, he exited his

vehicle and declared, “I’m going to f**k you — I’m going to f**k you up, or

something, I’m going to hit you.” Lovett said that she interpreted these

comments as Gipson saying that he was going to hit her with his car. Lovett said

that the next thing she knew, Gipson “backs up and he hits [her] with his vehicle.”

Lovett said that the impact “pin[ned her] to the [other] car.” Lovett said that

Gipson did not check on her but rather he “just drove off.”

Lovett said that Gipson called her days later and apologized for hitting her,

declaring that “he didn’t mean to do it.” But Lovett said that she did not believe

him because he had told her he was going to hit her with his car and then he did.

Lovett said that her impression was that Gipson was “trying to kill [her].” Lovett

also said that she did not want to come to trial because she was terrified of

Gipson but that she had been subpoenaed to appear. Lovett described how the

impact of Gipson’s vehicle caused her to have a broken leg in three places, a

concussion, and abdominal trauma. Lovett said that she now walks with a limp.

During her time on the stand, Lovett described the events in the video from

Papaw’s surveillance camera. The State also introduced and published pictures

of Lovett after she had been placed in an ambulance shortly after the impact.

5  Fort Worth Police Officer Jeremy Keys testified that he responded to

Lovett’s 911 call. When Keys arrived, he found Lovett in obvious pain and

unable to move, laying on the ground next to Hussein’s vehicle. Keys also

testified that Lovett appeared intoxicated. Keys averred that Lovett told her that

Gipson had purposefully struck her with his car and had then driven off. Keys

said that medical personnel also responded to Lovett’s 911 call and that they

transported Lovett to the ambulance using a stretcher.

After speaking with Lovett, Keys believed that Gipson had committed

aggravated assault. Keys testified that the manner in which Gipson had used his

vehicle to strike Lovett had caused Gipson’s vehicle to become a deadly weapon

and that the vehicle, when used in that manner, had the potential to cause

serious bodily injury or death. Keys also viewed the video from the store’s

surveillance system. According to Keys, the video corroborated Lovett’s

statement that Gipson had purposely struck her with his vehicle and had then

driven off.

Fort Worth Police Detective Gerard Gutierrez testified that he investigated

Keys’s report regarding Gipson. Gutierrez said that he interviewed Lovett at the

hospital. Gutierrez said that Lovett identified Gipson in a photo lineup as the

person who had struck her with his car and had then absconded without

attempting to help her. Gutierrez also viewed the video from the store’s

surveillance system, and according to Gutierrez, the video corroborated Lovett’s

statement.

6  Charles Ellis testified for the defense. Ellis said that he had known Gipson

for a few years and that he had driven Gipson’s vehicle several times. According

to Ellis, Gipson’s vehicle had problems with its brakes. Ellis averred that

Gipson’s car was “hard to stop . . . when you sto[m]p on the brakes.” On cross-

examination, Ellis agreed that Gipson’s car would in fact stop when pumping the

brakes and that the last time he had driven the car was “two or three years” prior

to trial.

Gipson testified in his own defense. Gipson stated that he and Lovett had

been using drugs and drinking beginning early in the morning on June 5, 2015.

Gipson also averred that he had run into Lovett with his car that night. By

Gipson’s account, his car had brake issues that were first identified by Webb.

Gipson averred that the trio had stopped at a gas station in order to purchase

brake fluid for that very reason prior to stopping at Papaw’s. Gipson also said

that he had attempted to have the issues with his brakes fixed two months prior

to the incident.

Gipson said that he and Lovett had “a disagreement” earlier in the day

because Lovett did not want him to “return her home to her sister,” but Gipson

said that he never threatened Lovett. Gipson said that as the trio stopped at

Papaw’s, the couple’s “debate” continued outside the car. According to Gipson,

once at Papaw’s, Lovett told him that she had called the police. Gipson said that

he got into his car and backed up, pretending to leave in hopes that Lovett would

change her tone toward him. Gipson averred that Lovett’s demeanor did not

7 change, so he put the car in drive and that the car “jerk[ed].” Gipson said that

when he attempted to stop the car, it wouldn’t initially stop. Gipson said that

although it was a “close call” in his attempts to steer around Hussein’s vehicle, he

“had no idea” that his car had struck Lovett or Hussein’s car.

Gipson said that he drove away because he believed that Lovett had

called the police; because he feared the police discovering that he had “a

package of dope” in his car with him; and because he did not “want to go back to

jail for something like that.” He said that he did not know that he had struck

Lovett until Webb called him a short while later. Gipson said that he did not

return to the scene because of his fear of the police and that he did not speak

with Lovett until several days after the incident, when he apologized to her over

the phone. Gipson said that after Webb called him, the next thing he knew, he

awoke in a Walmart parking lot with “some more brake fluid . . . sitting in the car”

next to him, but he did not remember purchasing the fluid. On cross-

examination, Gipson averred, however, that after he drove off, he stopped to put

brake fluid in the car and that while doing so, he checked his car “for any

scratches or dents.” But Gipson maintained that he did not know that he had hit

Lovett.

Gipson said that the police arrested him several days after the incident.

Gipson averred that he had given a statement to the arresting officer. Gipson

agreed that in his statement, he told the arresting officer that he knew he had hit

Lovett and that he did not stop to assist her because people had run out of the

8 store yelling and screaming at him. The State introduced and published the

written statement to the jury. In the statement, Gipson wrote in his own

handwriting that “when [he] pulled forward to ask [Lovett] to get in car and let[’]s

go, [his] brakes fail[ed] to apply [and] went straight to the floor without stopping

[the] car before hitting my friend [Lovett].” The statement further read, “[A]lso my

floor mat interfere[]ed with [the] gas pedal. I saw several people coming toward

me/my car yelling & screaming at me, I panic[ed,] became discombobulated &

confused. I dr[o]ve away because I felt that I was [in danger].”

Webb also testified. Webb said that he was leaving Papaw’s and walking

toward his mother’s house when he heard Lovett being struck by Gipson’s car.

Webb said that he was with Lovett and Gipson just prior to the collision because

Gipson had given him a ride to Papaw’s. Webb averred that the three never

made an intermediate stop between when Gipson picked him up and when they

arrived at Papaw’s. Webb said that Lovett and Gipson were having “a little

argument” as they arrived.

According to Webb, Lovett never told him that she had called 911. Webb

said that after he heard the impact and then looked and saw Lovett laying on the

ground, he “came right back” to check on her. Webb said that he then left the

area right as the ambulance arrived because he did not want to speak to police

due to “being on a bun” and having “his own troubles.” Webb said that he called

and informed Gibson that Gibson had struck Lovett with his car. By Webb’s

9 account, he had previously driven Gipson’s car a “couple [of] times” and the car’s

brakes were “real bad.”

Gipson’s daughter, Apollonia Gipson, testified that she had driven Gipson’s

car on a “few” occasions and that on “one encounter,” she had experienced

brake issues. Specifically, Apollonia said that she once had to use the

emergency brake in order to get the car to stop.

After both parties closed, the jury returned verdicts of guilty for aggravated

assault with a deadly weapon, to-wit: a motor vehicle and for accident involving

injury. After the punishment phase, the jury further found Gipson to be a habitual

offender and assessed punishment at thirty years’ incarceration. The trial court

entered judgments accordingly, and this appeal followed.

III. DISCUSSION

A. Competency

In his first issue, Gipson argues that even though the trial court questioned

Gipson’s attorney regarding his competency, the trial court reversibly erred by

not conducting a formal inquiry regarding his competency to stand trial. Gipson

points to three items in the record to support his argument. First, Gipson points

to a portion of this colloquy from a pretrial hearing:

[Defense Counsel]: [Gipson], the State’s offered you 20 years, and you’ve rejected that offer; is that correct?

[Gipson]: I can’t do 20 years.

[Defense Counsel]: That’s not what I asked you.

Just did you want the 20 years or not?

10 [Gipson]: No.

[Defense Counsel]: Okay. So you’re rejecting the 20[-]year offer, correct?

[Gipson]: Yes, if that’s what — yes, sir, if that’s what —

[Defense Counsel]: Listen to me. The offer is 20 years. You told me you didn’t want it an hour ago. But if you want it now, you can have it. Do you want 20 years?

[Gipson]: I want ten.

[Defense Counsel]: No, that’s not the question.

Do you want the 20[-]year offer?

[Gipson]: I don’t know — I don’t know. I don’t know, sir. I’m not understanding what’s really going on.

THE COURT: First of all, [Gipson], can you hear what he’s saying?

I cannot hear what you’re saying.

[Gipson]: I’m not really understanding what’s going on, man. They — they been having me here for a long time. They talking about these years, and, you know, I can’t pay for that — I — I can’t afford that.

THE COURT: Okay. All right.

[Defense Counsel]: Can I finish?

THE COURT: You may.

[Defense Counsel]: [Gipson], the State’s offered you 20 years in a plea bargain. Do you want the 20[-]year offer or not? That’s the only offer they’re going to make you.

[Gipson]: I’m not understanding. I guess not. I’m not understanding.

[Defense Counsel]: What do you not understand about 20 years?

11  [Gipson]: Twenty years, man.

[Defense Counsel]: All your fingers and all your toes.

[Gipson]: That’s a long time. I don’t — I just did that. I did a 20 year.

[Defense Counsel]: That’s not the question. The question is not whether it’s too much time. The question is —

[Gipson]: I ain’t heard that.

[Defense Counsel]: Listen to me.

Do you want to accept the State’s offer, yes or no?

[Gipson]: No.

The second item Gipson points to is this colloquy that occurred

immediately after the colloquy just cited:

[Defense Counsel]: Okay. The second thing is, I told you here just a few minutes ago that since you’re charged with two counts, two different crimes, one being aggravated assault, and one failure to stop and render aid or accident involving injury, whatever you want to call it, I told you that you had a right to require that the State try those individually. In other words, they could — you could say pick one of these and try me on it. I told you that, right? Just not ten minutes ago.

[Gipson]: Yes. Yes, sir.

[Defense Counsel]: Okay. I told you, you could say try me on one or the other. Do you understand that?

[Gipson]: I —

[Defense Counsel]: Did we have that conversation?

[Gipson]: Yeah. We was talking about somewhere try —

[Defense Counsel]: Try one or the other.

12 [Gipson]: Yeah.

[Defense Counsel]: And I told you that if you did that, the State would have to pick one, but then they could come back and they could try you on whichever one they didn’t try you today, and they could ask the judge to stack the sentences?

[Gipson]: Stack?

[Defense Counsel]: One sentence run after the other one quits, if you want to separate them. But if you try them together, the sentences will run at the same time. Do you remember that conversation?

[Gipson]: Yes, sir.

[Defense Counsel]: Okay. And you’ve agreed to let the State try both of these cases at the same time, knowing that whatever your sentence is, it’s going to run at the same time, or concurrent. Do you understand that?

[Gipson]: Yes, sir. Yes, sir.

[Defense Counsel]: Is that what you want to do?

[Gipson]: I guess, yeah. What —

[Defense Counsel]: Okay. It’s either yes or no. It’s like being pregnant.

[Gipson]: I don’t know what’s going on — I’m not — yes. Yes, sir.

[Defense Counsel]: Do you understand that?

[Gipson]: That’s what they want to do, yes.

[Defense Counsel]: All right.

13  Following these two colloquies, the trial court inquired of defense counsel,

“[D]o you believe that your client is competent?” Defense counsel responded, “I

do, Judge.” Defense counsel elaborated by stating:

And I’ve got a pretty good stack of court records. I haven’t seen anything in there that has told me that [Gipson]’s not competent to stand trial. [Gipson]’s never told me that he — he never — he’s never given me the impression he does not know what he’s charged with, or that he’s — he does not understand the circumstances. I’ve spent several times with him in the jail, both with myself, with an investigator, and the investigator’s been to see him.

I have also, at []Gipson’s request, the last time I went and saw him in the jail, I got Judge Catalano to appoint a psychologist who’s going to go see []Gipson in the jail tomorrow morning, before the trial starts since the court — this court has [its] docket call in the morning on Tuesday.

And I asked the judge, he ordered the bailiffs to bring [] Gipson from the Green Bay facility down here so that the doctor can see him for competency purposes.

I don’t have any reason to believe that he will be incompetent, but I am having that done. So, that’s what I would let the court know.

Based on this exchange, the third item that Gipson points to as evidence

that the trial court erred by not conducting a formal competency inquiry is, as

Gipson phrases it, the fact that his trial counsel “sought permission from the trial

court to appoint a psychologist to conduct an examination.” The record is silent

as to whether this examination took place.

The State argues that the trial court did not abuse its discretion by

determining through an informal inquiry that there was insufficient evidence to

warrant a formal competency hearing regarding Gipson’s competence to stand

trial. We agree with the State.

14  1. Standard of Review

We review issues involving competency determinations for an abuse of

discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009),

superseded by statute on other grounds by Turner v. State, 422 S.W.3d 676, 692

n.30 (Tex. Crim. App. 2013); see also Crump v. State, No. 06-14-00011-CR,

2014 WL 1410330, at (Tex. App.—Texarkana Apr. 11, 2014) (mem. op., not

designated for publication) (applying same standard of review to a trial court’s

implied ruling to not conduct competency inquiry). We may not substitute our

judgment for that of the trial court; instead, we determine whether the trial court’s

decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426. A trial

court’s firsthand factual assessment of a defendant’s competency is entitled to

great deference on appeal. Ross v. State, 133 S.W.3d 618, 627 (Tex. Crim. App.

2004).

2. Applicable Law

Due process requires that a criminal defendant be competent to stand trial.

Turner, 422 S.W.3d at 689 (citing Dusky v. United States, 362 U.S. 402, 403, 80

S. Ct. 788, 789 (1960)); see also Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct.

836, 838 (1966) (holding that a conviction obtained while defendant is legally

incompetent violates due process of law); McDaniel v. State, 98 S.W.3d 704, 709

(Tex. Crim. App. 2003) (same). This constitutional requirement has been

codified in chapter 46B of the Texas Code of Criminal Procedure, which

describes the circumstances that require a competency determination and details

15 the procedures to be followed. Tex. Code Crim. Proc. Ann. arts. 46B.001–.171

(West 2006 & Supp. 2015). Under the statute, a defendant is presumed

competent to stand trial and shall be found competent unless proven

incompetent by a preponderance of the evidence. Id. art. 46B.003(b) (West

2006).

A person is incompetent to stand trial if the person does not have

“(1) sufficient present ability to consult with the person’s lawyer with a reasonable

degree of rational understanding; or (2) a rational as well as factual

understanding of the proceedings against the person.” Id. art. 46B.003(a); see

Dusky, 362 U.S. at 402, 80 S. Ct. at 789; Turner, 422 S.W.3d at 683 n.11 (noting

that a competent defendant possesses both criteria). Evidence relevant to these

criteria includes whether a defendant has the capacity to (1) rationally

understand the charges against him and the potential consequences of the

pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and

states of mind; (3) engage in a reasoned choice of legal strategies and options;

(4) understand the adversarial nature of criminal proceedings; (5) exhibit

appropriate courtroom behavior; and (6) testify. Tex. Code Crim. Proc. Ann. art.

46B.024(1) (West Supp. 2015); Morris v. State, 301 S.W.3d 281, 286 (Tex. Crim.

App. 2009).

The issue of a defendant’s competence may be raised by either party’s

motion or by the trial court on its own motion. Tex. Code Crim. Proc. Ann. art.

46B.004(a) (West Supp. 2015). “If evidence suggesting the defendant may be

16 incompetent to stand trial comes to the attention of the court, the court on its own

motion shall suggest that the defendant may be incompetent to stand trial.” Id.

art. 46B.004(b). Upon a suggestion that the defendant may be incompetent, the

trial court has a duty to conduct an informal inquiry to determine whether there is

“some evidence from any source that would support a finding that the defendant

may be incompetent to stand trial.” Id. art. 46B.004(c); Lopez v. State, 04-12-

00568-CR, 2013 WL 6533183, at –4 (Tex. App.—San Antonio Dec. 11, 2013,

no pet.) (mem. op., not designated for publication).

An informal inquiry does not have to be exhaustive. It may be satisfied

when the trial court poses simple questions to the defendant or defense counsel

regarding the defendant’s competency. See generally Luna v. State, 268 S.W.3d

594, 598–600 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 833 (2009);

Jackson v. State, 391 S.W.3d 139, 142 (Tex. App.—Texarkana, no pet.); Gray v.

State, 257 S.W.3d 825, 829 (Tex. App.—Texarkana 2008, pet. ref’d). In making

its informal inquiry, the trial court is not required to follow any specific protocol.

See, e.g., Teal v. State, No. 01-10-00506-CR, 2011 WL 6140676, at (Tex.

App.—Houston [1st Dist.] Dec. 8, 2011, pet. ref’d) (mem. op, not designated for

publication) (“As its name suggests, an ‘informal inquiry’ does not have specific

formal requirements.”). If a trial court’s informal inquiry establishes that there is

some evidence that could rationally support a defendant’s incompetency to stand

trial, it should then conduct a formal competency trial. Turner, 422 S.W.3d at

696.

17  3. Informal Inquiry into Gipson’s Competency

Here, the trial court conducted an informal inquiry regarding Gipson’s

competence to stand trial by posing questions to defense counsel and through its

firsthand factual assessment of Gipson’s competency. As discussed above,

Gipson points to three items that he alleges amount to evidence of his

incompetence.

First, Gipson argues that his statements that he was “not understanding”

the State’s offer of twenty years is indicative of his incompetence. But a

reasonable interpretation, when viewing the exchange in its entirety, is that what

Gipson did not understand is how the State would not offer less than twenty

years. As Gipson stated himself, he “want[ed] ten” years. A defendant’s

dissatisfaction with a potential lengthy sentence, however, is not evidence that he

is incompetent to stand trial. See Anderson v. State, No. 03-09-00041-CR, 2010

WL 3370054, at (Tex. App.—Austin Aug. 26, 2010, pet. ref’d) (mem. op., not

designated for publication) (“Anderson’s conduct and comments were neither

bizarre nor evidence of confusion or uncertainty . . . . Rather, they demonstrate

frustration with the process and dissatisfaction with a longer sentence than

anticipated.”).

Second, Gipson’s purported confusion over whether to require the State to

try the two charges separately or together is not necessarily evidence that

Gipson did not possess sufficient present ability to consult with his attorney, nor

is it evidence that he lacked a factual understanding of the proceedings against

18 him. Indeed, within the colloquy that Gipson points to as evidence that he did not

understand the joinder of the charges against him, Gipson affirmatively

acknowledged that his attorney had discussed the concept with him and that he

understood that the charges against him would be tried together. Furthermore,

the trial court was free to interpret Gipson’s ramblings as his continued frustration

with what he believed to be an unfair plea offer from the State. See Lawrence v.

State, 169 S.W.3d 319, 322–23 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting

defendant’s rambling and nonresponsive answers to questions did not constitute

evidence of incompetency).

Gipson’s third assertion—that his trial counsel requested a competency

evaluation at Gipson’s request—is also not sufficient evidence that the trial court

abused its discretion by not conducting a formal competency inquiry. See

McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) (holding that

under predecessor statute, the mere filing of a motion for competency

examination was insufficient to require formal competence inquiry). Significantly,

the trial court had direct evidence, in the form of testimony from Gipson’s

attorney, that Gipson’s trial attorney had no concerns that Gipson possessed

competency to stand trial. Most importantly, Gipson points to no evidence in the

record that he did not rationally understand the State’s charges and their

potential consequences; that he was unable to disclose pertinent facts, events, or

states of mind related to the State’s charges; that he was unable to engage in

reasoned choices or legal strategies and options; that he did not understand the

19 adversarial nature of the criminal proceedings; that he exhibited inappropriate

courtroom behavior; or that he had an inability to testify. In fact, Gipson

demonstrated a lucid understanding of the difference between the State’s offer of

a twenty-year sentence versus his desire for a ten-year sentence, and he

testified in his own defense at trial, where he ably answered questions, both on

direct and cross-examination, regarding his recollection of the events and his

position that he never intended to run his vehicle into Lovett.

Because the trial court concluded through its informal inquiry that there

was insufficient evidence of Gipson’s incompetency to stand trial, we hold that it

was not required to conduct a formal competency hearing and did not abuse its

discretion when it did not do so. See Tex. Code Crim. Proc. Ann. art. 46B.005

(West 2006); see also Jackson, 391 S.W.3d at 142 (concluding trial court’s

inquiry to defense counsel, coupled with its own observations of defendant,

constituted sufficient informal inquiry into defendant’s competence). We overrule

Gipson’s first issue.

B. Sufficiency of the Evidence

In his second issue, Gipson argues that the “evidence presented at trial

was factually insufficient to support both guilt/innocence verdicts.” In analyzing

this point, Gipson cites outdated and overturned sufficiency standards. See

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis

v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)); see also Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (applying evidentiary

20 sufficiency review standards predicated on Clewis). The State argues, among

other arguments, that this court should hold that Gipson has forfeited his

arguments on appeal because he cites to outdated evidentiary sufficiency

standards. While we agree that Gipson has cited and analyzed this issue under

overturned precedent, we nonetheless interpret Gipson’s challenges as being

challenges to the sufficiency of the evidence to support both of his convictions.

Thus, we will address his second issue.

1. Standard of Review

In our due-process review of the sufficiency of the evidence to support a

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 essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

21 Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

(“When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

22 the element that was actually pleaded, and not any alternative statutory

elements.”).

The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).

2. Aggravated Assault With a Deadly Weapon

In part of his second issue, Gipson argues that the evidence is insufficient

to support his conviction for aggravated assault with a deadly weapon, to-wit: a

motor vehicle. Gipson’s specific argument is that “the great weight of the

evidence defies the jury’s finding regarding [Gipson]’s mental state under count

one.” We conclude that the evidence supports the jury’s verdict.

Here, the State charged Gipson with having “intentionally or knowingly”

caused bodily injury to Lovett by “striking her with a motor vehicle” while using or

exhibiting “a deadly weapon during the commission of the assault, to-wit: a

motor vehicle.” Thus, the State was required to prove that Gipson committed the

offense of aggravated assault with a deadly weapon when he “intentionally and

knowingly” caused bodily injury to Lovett by driving his car into her. See Tex.

Penal Code Ann. § 22.01(a)(1) (West Supp. 2015), § 22.02(a)(2) (West 2011).

In determining the sufficiency of the evidence to show intent and faced with

a record that supports conflicting inferences, we “must presume—even if it does

not affirmatively appear in the record—that the trier of fact resolved any such

23 conflict in favor of the prosecution, and must defer to that resolution.” Matson v.

State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Further, a culpable mental

state can be inferred from the acts, words, and conduct of the accused. Martin v.

State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Conduct itself is sufficient to infer intent. Connell v. State, 233 S.W.3d 460, 467

(Tex. App.—Fort Worth 2007, no pet.).

Viewing the evidence in the light most favorable to the jury’s verdict and

drawing reasonable inferences from the basic facts to ultimate facts, the record

shows that Gipson intentionally or knowingly drove his car into Lovett after he

told her that he was going to “f**k [her] up” and then proceeded to get into his

car, back up his car, steer his car toward her, and then accelerate his car into

her, pinning her between his car and Hussein’s. We hold that the evidence is

sufficient to support the jury’s determination that Gipson “intentionally or

knowingly” caused bodily injury to Lovett while using his car as a deadly weapon.

See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170. We

overrule this portion of Gipson’s second issue.

3. Leaving the Scene of an Accident Involving Injury

In the remainder of his second issue, Gipson argues that the evidence is

insufficient to support the jury’s verdict that he “intentionally or knowingly” left the

24 scene of an accident involving injury (failure to stop and render aid). 2

Specifically, Gipson argues that “the great weight of the evidence regarding the

lack of physical damage to both [his and Hussein’s] cars and [his] severe

intoxication” demonstrate that he did not have “knowledge of the accident.” We

conclude that the evidence is sufficient to support the jury’s verdict.

A person commits the offense of failure to stop and render aid if he

operates a vehicle “involved in an accident resulting in” the injury or death of

another person and he intentionally or knowingly fails to stop and render

reasonable assistance. Tex. Transp. Code Ann. §§ 550.021, .023 (West 2011);

Steen v. State, 640 S.W.2d 912, 914–15 (Tex. Crim. App. 1982). The State

satisfies its burden of proving mental culpability for failure to stop and render aid

after a motor vehicle accident by showing that the accused had knowledge of the

2 The trial court’s judgment reflects that a jury found Gipson guilty under section 550.021 of the Texas Transportation Code. See Tex. Transp. Code. Ann. § 550.021 (West Supp. 2015). This statute is titled “Accident Involving Personal Injury or Death.” Id. Given the history of the statute, reviewing courts, however, routinely refer to the offense under section 550.021 as “failure to stop and render aid.” Huffman v. State, 267 S.W.3d 902, 904 (Tex. Crim. App. 2008); see also Delacruz v. State, Nos. 02-13-00048-CR, 02-13-00049-CR; 2014 WL 1389543, at (Tex. App.—Fort Worth Apr. 10, 2014, pet. ref’d) (mem. op, not designated for publication) (“The trial court additionally convicted Delacruz of failure to stop and render aid under transportation code section 550.021(c)(2).”). This is so because the statute instructs what an operator of a vehicle involved in an accident that is reasonably likely to have caused injury or death to a person must do—stop and render aid. See Huffman, 267 S.W.3d at 908 (“[W]e have held that a separate prosecution for failure to stop and render aid can occur for each individual injured in the accident whom the defendant fails to aid.”) (emphasis added).

25 circumstances surrounding his conduct. St. Clair v. State, 26 S.W.3d 89, 98

(Tex. App.—Waco 2000, pet. ref’d).

Here, viewing the evidence in light most favorable to the jury’s verdict, the

record shows that Gipson intentionally struck Lovett with his vehicle, pinning her

to Hussein’s car, and then drove away without offering her assistance. This view

of the evidence is reinforced not only by Lovett’s testimony but also by Gipson’s

written statement to the police that he had struck Lovett with his car and by his

own testimony that after he left the scene, he stopped and inspected his car for

“scratches or dents.” Further reinforcing this evidence was (1) Webb’s testimony

that he called Gipson shortly after the collision and told him that he had injured

Lovett with his car and (2) Gipson’s own testimony that the reason he did not

return even then was his fear of police involvement. See Jackson v. State, 643

S.W.2d 521, 523 (Tex. App.—Fort Worth 1982, pet. denied) (“Flight is a

circumstance that tends to show guilty consciousness.”). We hold that the

evidence is sufficient to support the jury’s determination that Gipson had

knowledge of the circumstances surrounding his conduct of intentionally or

knowingly failing to stop and render reasonable assistance to Lovett after

operating his car in a way that resulted in injury to her. See Jackson, 443 U.S. at

326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360. We overrule the remainder

of Gipson’s second issue.

26  IV. CONCLUSION

Having overruled both of Gipson’s issues, we affirm the trial court’s

judgments.

/s/ Bill Meier BILL MEIER JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: January 14, 2016

27