Opinion
No. 08-03-00058-CR
February 17, 2005. DO NOT PUBLISH.
Appeal from the 409th District Court of El Paso County, Texas, (Tc# 20020D01745).
Before Panel No. 4, BARAJAS, C.J., LARSEN, and McCLURE, JJ. LARSEN, J., not participating.
MEMORANDUM OPINION
Melvin Brown appeals his conviction for assault of a public servant. Appellant was found guilty by a jury and sentenced to twenty-five years in the Texas Department of Criminal Justice enhanced with two prior felonies. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
On March 31, 2002, Officer Gerardo Martinez was working at the El Paso County Jail Annex in Pod 500. Martinez was working the cell block floors and made visual checks of the inmates every hour. During one of his visual checks, he saw Appellant across the yellow line in the day room around the door where inmates were not allowed. Appellant was stooped over looking through the key hole communicating with an inmate on the other side of the wall. Further, it looked like Appellant was pushing something through the door. Martinez looked on the other side of the wall and saw the other inmate with contraband in his hand. The contraband turned out to be envelopes with stamps on them containing a piece of paper in code. Martinez first secured the inmate on the other side and retrieved the contraband and then entered the area where Appellant was located. Appellant was moving away from the yellow line, and Martinez told Appellant to go to his cell. Appellant refused and instead sat down at a table. Martinez told Appellant several times to go to his cell, and Appellant became agitated and was cursing and yelling. Martinez then signaled the guard station officer to get assistance. Officer Steve Porras then arrived from neighboring Pod 600. At this time, Appellant continued to refuse to go to his cell. Porras told Appellant to make it easy on himself by going to his cell. After several minutes, Appellant decided to walk to his cell. During his walk, Appellant was making sudden movements, acting violent, and his hand gestures were not normal. Appellant was sticking his chest down, cocking his arms back as if he was going to assault the officers, and cursing. Porras also characterized Appellant's demeanor as angry, upset, and aggressive. Appellant would stop, turn around, and call the officers names. Martinez believed that Appellant wanted to assault him. Martinez thus felt that he needed to take control of the situation and walked behind Appellant in an escort position with his hand out. Porras also took a protective stance since Appellant seemed like he was going to become aggressive. Porras testified that Martinez placed his hand on the small of Appellant's back to direct Appellant to his cell and that Appellant turned around and smacked Martinez's arm and said not to touch him. When Appellant reached his cell, he turned around and grabbed Martinez's shirt with both hands. Martinez then grabbed Appellant by his uniform in the chest area and pushed him back to the bunk. Appellant was punching with both hands in closed fists and kicking. Appellant struck Martinez in the neck, midsection, and left shin. Porras saw Appellant strike Martinez in the ear area, the shoulder, and the side of head. Corporal Robert Flynn, who arrived during the struggle, did not see Appellant strike Martinez. Pictures of Martinez's injuries were admitted at trial. Martinez's injuries to his shin were characterized as abrasions, and Martinez admitted that it was possible that he could have scraped his leg on the concrete bunk. Further, Martinez's uniform was torn. Flynn noticed a red mark on Martinez's neck. After Appellant started punching and kicking, Porras came in behind Martinez and Martinez pushed Appellant to the bunk. While Martinez and Porras were trying to get Appellant to stop resisting, Appellant continued to kick, punch, and curse. Porras jumped over Martinez and grabbed Appellant's forearms. Martinez then felt it was necessary to strike Appellant, which he did twice in Appellant's midsection. Martinez testified that officers were allowed to strike inmates in self-defense. However, Porras did not see Martinez strike Appellant. Appellant then got one of his arms loose and struck Martinez again, so Porras put all his weight on Appellant and waited for backup. Porras then heard Corporal Flynn in the background yelling for Appellant to cool it. Flynn placed his hand on Appellant's stomach and told Appellant to relax and not to move. When backup arrived, Appellant froze. Then, Martinez and Porras picked Appellant up and placed him on the floor and handcuffed him. At this time, Corporal Carlos Gutierrez, who was acting sergeant, arrived on the scene. Appellant was laughing hysterically and loud. Appellant said, "I know I was wrong for passing stuff, but he didn't have to touch me. If he's going to press charges, I want to press charges, also." Appellant stated that if Martinez was going to write a report it was going to be a good one. Appellant did not appear to be injured and was not complaining of any injuries. The other inmates in their cells began yelling and banging on the doors. Appellant was taken to a holdover cell. Officer Martinez made three statements: (1) a facility incident report made by Martinez, (2) a complaint report made by Martinez, and (3) a multipurpose report made by Detective Montoya. Martinez's statements provided that Appellant was walking toward his cell, and Martinez put his hand on Appellant, who said don't touch me. Martinez admitted that his statements did not provide that he struck Appellant; however, Martinez stated that officers are allowed to strike inmates in self-defense. Officer Porras made two statements: (1) a statement on the day of the incident to Montoya, and (2) a statement to Detective Jesus Tarango on June 2002. Porras never stated that Appellant grabbed Martinez in either statement. Further, in his first statement, Porras did not provide that Appellant struck Martinez; however, Porras did state that Appellant was swinging and kicking at Martinez. Porras did say that Appellant hit Martinez in his second statement.II. DISCUSSION
In Issue No. Three, Appellant challenged the legal sufficiency of the evidence to support his conviction for assault of a public servant. Appellant argued that the element of causation of bodily injury was lacking since the State failed to prove that Martinez suffered any bodily injury. Appellant also complained that Martinez did not testify that he suffered any pain.A. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). 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 to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.-Corpus Christi 1988, pet. ref'd). The jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 690 (Tex.App.-Tyler 1997, pet. ref'd). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158. A person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Tex. Penal Code Ann. § 22.01(b)(1) (Vernon Supp. 2004-05). The indictment against Appellant charged him with intentionally, knowingly, and recklessly causing bodily injury to Officer Gerardo Martinez by (a) striking Martinez in the neck with Appellant's hand, (b) kicking Martinez's body with Appellant's foot, and (c) kicking Martinez's leg with Appellant's foot. The jury charge instructed the jury that the definition of "bodily injury" was "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2004-05). Viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of assault on a public servant beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. First, Officer Martinez testified that Appellant struck him in the neck, his midsection, and his left shin. Martinez characterized the injury to his knee as abrasions. Second, Porras stated that he also saw Appellant strike Martinez in the ear area, his shoulder, and his head. Next, Flynn saw a red mark on Martinez's neck. Last, pictures of Martinez's injuries were admitted at trial. While no witness directly testified that Martinez suffered pain as a result of being struck and kicked by Appellant, the jury was permitted to draw reasonable inferences from the evidence, including an inference that the victim suffered pain as a result of his injuries. Arzaga v. State, 86 S.W.3d 767, 778 (Tex.App.-El Paso 2002, no pet.) (citing Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.-Corpus Christi 1988, pet. ref'd)). Further, the existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary to establish "bodily injury" within the meaning of the statute. Id. (citing Bolton v. State, 619 S.W.2d 166, 167 (Tex.Crim.App. 1981) (evidence of cut on arm sufficient to show bodily injury); Goodin, 750 S.W.2d at 859 (rejecting contention that because victim did not testify that bruises and strains "hurt" or that he felt pain the State failed to prove "bodily injury;" holding the existence of bruises and muscle strain sufficient to show bodily injury because jury could draw inference from these injuries that victim suffered physical pain)). Thus, the jury was entitled to infer from the testimony of Officers Martinez and Porras and Corporal Flynn that Officer Martinez suffered bodily injury. Accordingly, we find the evidence is legally sufficient to sustain Appellant's conviction for assault of a public servant, and Appellant's Issue No. Three is overruled.B. Lesser-included Charge of Assault
In Issue No. One, Appellant challenged the trial court's denial of his request for a charge on the lesser-included offense of assault. Appellant argued that there was a scintilla of evidence that at the time Appellant allegedly struck and kicked Martinez that Martinez was not in the lawful discharge of his official duties. Appellant seemed to suggest that Martinez was outside his official duties because he struck Appellant. To determine whether Appellant was entitled to a charge on the lesser-included offense, we apply a traditional two-prong test. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981); Bartholomew v. State, 882 S.W.2d 53, 54-55 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex.App.-El Paso 1998, pet. ref'd). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Bignall, 887 S.W.2d at 23; Ramirez, 976 S.W.2d at 227. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ramirez, 976 S.W.2d at 227. The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in making the determination of whether the lesser-included offense should be given. See Gadsden v. State, 915 S.W.2d 620, 622 (Tex.App.-El Paso 1996, no pet.); Barrera v. State, 914 S.W.2d 211, 212 (Tex.App.-El Paso 1996, pet. ref'd). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). An accused is guilty only of a lesser-included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Ramirez, 976 S.W.2d at 227. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). There must be some evidence directly germane to the lesser-included offense for the jury to consider before an instruction on the lesser-included offense is warranted. See Ramirez, 976 S.W.2d at 227. Assault is a lesser-included charge of assault of a public servant. Tex. Penal Code Ann. § 22.01(a). Thus, we must determine whether there is evidence in the record from which a jury could have rationally acquitted Appellant of the greater offense while convicting him of the lesser offense. Martinez was employed as a detention officer with the El Paso Sheriff's Office. A "public servant" is "a person elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government." Tex. Penal Code Ann. § 1.07(a)(41)(A). Thus, Martinez's employment qualifies him as a "public servant." Martinez's duties as detention officer at the jail annex were to make visual checks of the inmates every hour and to enforce facility rules. Inmates in one cell block were not allowed to communicate with inmates in other cellblocks. Further, inmates were not to cross the yellow line near the door in the day room. Inmates also were not to assault or disrespect officers. Martinez caught Appellant passing contraband to another inmate in another cell block. Then, when Martinez tried to put Appellant in his cell to investigate, Appellant refused and became violent. Thus, Martinez was exercising his official duties by trying to investigate violations of facility rules. Further, while Appellant seemed to argue that Martinez was not discharging his official duties at the time since he struck Appellant, testimony at trial showed that officers were allowed to strike inmates in self-defense. Appellant was swinging at Martinez and kicking him; thus, Martinez was justified in using self-defense. Therefore, the evidence did not show that Martinez was not acting in his official duty, and we find no evidence which would have allowed the jury to rationally find that if Appellant was guilty, then he was only guilty of assault. Ramirez, 976 S.W.2d at 227. Accordingly, Appellant was not warranted an instruction on the lesser-included offense of assault, and Appellant's Issue No. One is overruled.C. Enhanced Punishment Charge
In Issue No. Two, Appellant challenged the trial court's submission of an enhanced punishment charge. First, Appellant argued that he did not receive personal notice of the enhancement allegation. Second, Appellant asserted that the State could not use his New Mexico conviction as an enhancement since the conviction included a term of probation, and under Texas law, a conviction that includes a term of probation is not admissible to enhance punishment.1. Enhancement Allegation
At trial, the State read the enhancement provision against Appellant as follows:Prior to the commission of the primary offense charged in the indictment, the Defendant, on the 16th day of April 1997, in the 65th District Court of El Paso County, Texas in Cause Number 970D00314, was convicted of a felony, to wit, prohibited substance in a correctional facility and said conviction became final prior to the commission of the primary offense alleged in the indictment.
Furthermore, that prior to the primary offense charged in the indictment and the offense in the foregoing paragraph of this notice, the Defendant, on the 12th day of September 1995, in the Third Judicial District Court of Dona Ana County, New Mexico in Cause Number CR-95-71, was convicted of a felony, to wit, residential burglary, and said conviction became final prior to the commission of the primary offense alleged in the indictment and prior to the offense alleged in the foregoing paragraph of this notice.