Unreported / Non-Citable
Background
Randall Scott Swank drove a Nissan Armada across the northbound lane of FM 731 while attempting a left turn in Johnson County. His vehicle struck a Ford Explorer carrying Siobhan Allen and her two sons, despite Allen’s attempt to avoid the collision by swerving onto the shoulder. Allen and her front-seat passenger, A.J., suffered injuries.
Officers observed that Swank smelled of alcohol, had glassy eyes, slurred his speech, shuffled his feet, and responded slowly to questions. A state trooper concluded that Swank’s intoxication and failure to yield contributed to the collision. A jury convicted Swank of two counts of aggravated assault with a deadly weapon and one count of driving while intoxicated, third offense. The trial court imposed life sentences for each aggravated-assault conviction and a 20-year sentence for DWI.
The Court’s Holding
The Tenth Court of Appeals held that sufficient evidence supported the jury’s finding that Swank recklessly committed aggravated assault with a deadly weapon. Viewed in the light most favorable to the verdict, the evidence permitted the jury to find that Swank consciously disregarded a substantial and unjustifiable risk by driving while intoxicated, failing to yield while turning left, or entering the oncoming lane. The clear roadway, eyewitness testimony, collision location, substantial vehicle damage, and officers’ observations supported that finding.
The court also rejected Swank’s unpreserved double-jeopardy claim. A defendant ordinarily must preserve such an objection in the trial court, and the exception for violations clearly apparent from the record did not apply. At least one aggravated-assault theory submitted to the jury would not create a double-jeopardy violation, and sufficient evidence supported that valid theory. The court therefore affirmed all three judgments.
Key Takeaways
- A jury may infer recklessness from the defendant’s conduct and the cumulative circumstances surrounding a vehicle collision.
- Evidence that Swank drove while intoxicated, failed to yield, and crossed into oncoming traffic sufficiently supported the aggravated-assault convictions.
- An unpreserved double-jeopardy claim was unavailable because no violation was clearly apparent from the face of the record.
Why It Matters
The decision illustrates how circumstantial evidence of intoxication and unsafe driving can establish the reckless mental state required for aggravated assault with a motor vehicle as the deadly weapon. It also underscores that defendants generally must raise double-jeopardy objections before or during trial.