Opinion
NO. 03-16-00535-CR NO. 03-16-00536-CR NO. 03-16-00537-CR
01-12-2018
William Childress, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NOS. D-1-DC-16-201685 , D-1-DC-16-201686, D-1-DC-16-201687, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant William Childress challenges his two convictions for assault on a public servant and one conviction for harassment of a public servant. See Tex. Penal Code §§ 22.01(a)(1), (b)(1) (defendant commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to a person whom defendant knows is a public servant while the public servant is lawfully discharging an official duty), 22.11(a)(2) (defendant commits an offense if, with the intent to assault, harass, or alarm, the defendant causes another person the defendant knows is a public servant to contact the defendant's saliva while the public servant is lawfully discharging an official duty). For the following reasons, we will affirm.
BACKGROUND
The jury heard evidence that, on the evening of March 13, 2016, Childress was in the crowded Sixth Street entertainment district in downtown Austin during the South by Southwest music festival. Officer John Evers testified that he first encountered Childress after a disturbance arose between Childress and a security guard working outside of a restaurant. According to Officer Evers's testimony, Childress appeared to be positioning himself "like he's preparing to fight" the security guard, so Officer Evers ordered Childress to leave. Childress began to walk away, but then "turned around and started causing another verbal disturbance in the middle of the street." Upon Officer Evers's request, Childress identified his name and his date of birth. At that time, Officer Evers noticed that Childress had a strong odor of alcoholic beverages and displayed signs of impairment from alcoholic beverages. Officer Evers again ordered Childress to "[g]o some place else for the evening." Childress walked a short distance away, then Officer Evers "saw him stop, turn towards the business again and start yelling, and started making hand gestures to them, and things like that." Officer Evers explained that Childress's behavior "could and quite potentially would have led to a fight or other physical altercation which would place him and . . . others in danger." Childress was then placed under arrest for public intoxication and for failing to comply with a police officer's lawful order.
Officer Evers further testified that, with the assistance of Officer Seth Model and two other officers, he attempted to escort Childress to a nearby temporary booking point. Witness testimony and video evidence revealed that Childress was combative and physically resisted the officers' efforts. The officers therefore placed him in a police car for transport to jail. Corporal Quint Sebek testified that, while Childress was awaiting transport, Corporal Sebek approached the police car and asked the officer in the driver's seat to lower the window so that Corporal Sebek could speak with Childress. When the window was lowered, Childress began spitting at Corporal Sebek, some of which landed on the exposed arm of Officer Christian Esquivel who was standing nearby.
Childress was charged with two counts of assaulting a public servant (cause numbers D-1-DC-16-201685 and D-1-DC-16-201686) and one count of harassing a public servant (cause number D-1-DC-16-201687), each of which was enhanced by an allegation of a prior felony conviction. The charges were consolidated for trial. A jury found Childress guilty of all three offenses, found the enhancement allegations true, and assessed punishment at seven years' incarceration for each conviction. The trial court entered judgments accordingly. Childress has appealed from all three judgments.
DISCUSSION
Childress challenges his two convictions for assault of a public servant in three issues, including the legality of his arrest, the sufficiency of the evidence to support the convictions, and his competency to stand trial. Childress challenges his conviction for harassment of a public servant in two issues, including the sufficiency of the evidence to support the conviction and his competency to stand trial.
I. Legality of arrest
In his first issue challenging his two convictions for assault of a public servant, Childress contends that his arrest violated the Fourth Amendment of the U.S. Constitution and Article I, Section 9 of the Texas Constitution. In order to preserve a complaint for appellate review, an appellant must have made a specific, timely objection or motion in the trial court and obtained an adverse ruling. See Tex. R. App. P. 33.1(a); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Because Childress did not challenge the legality of his arrest in a motion to suppress or at any other time prior to appeal, he failed to preserve that issue for review. See Swain, 181 S.W.3d at 365 (appellant's global statements in motion to suppress challenging legality of arrest were insufficiently specific to preserve issue for appeal); see also Leza v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011) (declining to address issue that appellant had failed to preserve or to explain how issue was exempt from preservation requirements).
We further conclude that, even had Childress preserved the issue, the record does not demonstrate that his arrest violated applicable constitutional standards. The record shows that Officer Evers reasonably believed that Childress had committed the offenses of public intoxication, see Tex. Penal Code § 49.02(a), and failure to comply with a police officer's lawful order, see Tex. Transp. Code § 542.501(1). See Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (warrantless arrest permissible if, at time of arrest, arresting officer reasonably believes that person had committed or was committing an offense). We thus overrule Childress's first issue challenging his assault convictions.
II. Sufficiency of the evidence
Childress challenges the sufficiency of the evidence to support all three convictions.
A. Standard of review
When reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict and determine whether any rational jury could have found the elements of the offense beyond a reasonable doubt. Whatley v. State, 445 S.W.3d 159, 165 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The jury is the sole judge of the weight and credibility of witness testimony. Id. We presume that the jury resolved any conflicting inferences in favor of the verdict. Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor and can be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). Mental culpability must generally be inferred from the circumstances under which an offense occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992); see Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring) ("Intent and knowledge are fact questions for the jury, and are almost always proven through evidence of the circumstances surrounding the crime.").
B. Childress's conviction for assaulting Officer Evers
In his second issue challenging his conviction for assaulting Officer Evers, Childress contends that the record contains insufficient evidence to support the jury's finding that he possessed the requisite intent for the offense, namely and in relevant part, that he intentionally, knowingly, or recklessly caused bodily injury to Officer Evers as alleged in the indictment. See Tex. Penal Code § 22.01(a)(1).
The State introduced the video recordings from Officer Evers's and Officer Model's body cameras that were taken at the time of the offense. The videos showed Childress physically struggling against officers as they took him into custody. The video from Officer Model's camera shows Childress attempting to wrap his leg around Officer Evers's leg. Officer Model testified that Childress kicked his right leg "out to Officer John Evers" and "hook[ed]" his foot around him so "that his leg is actually wrapped around Officer Evers." He explained that "it's a dangerous situation because now we have a suspect who is actually physically wrapping his leg around an officer."
Officer Evers similarly testified regarding Childress's assaultive conduct while "resisting [the officers'] attempts to walk him" to the temporary booking station:
I feel a knee being driven into my - into the side of my - side and back of my knee, right here (indicating). My knee flexed inward as I continued stepping forward. I sunk with the blow, and I could feel a radiating pain down the inside aspect of my knee joint. . . . The only way I can interpret it is trying to turn me over and drop me to the ground.Officer Evers explained that, based on his experience patrolling downtown Austin and arresting intoxicated individuals, he could distinguish "between a stumbling action and deliberate action" and that he believed Childress's conduct "was a deliberate act to try to harm me or injure me in some way." He further testified that, during the arrest, Childress repeatedly told officers "I'm going to fuckin' make you work for it. You're going to fucking work for this. Were his exact words at about ten times that volume."
Childress contends that "[t]he testimony that he wrapped his leg around the officer's knee does not negate an accidental touch when [Childress] fell." However, the jury was free to infer from the video evidence and witness testimony regarding Childress's conduct that Childress possessed the requisite mental state for the offense of assaulting a public servant lawfully discharging an official duty. See Tex. Penal Code § 22.01(a)(1), (b)(1); Hernandez, 819 S.W.2d at 810 (intent may be inferred from circumstantial evidence, including defendant's words and conduct).
We conclude that the evidence is sufficient to support Childress's conviction for assaulting Officer Evers. We overrule his second issue challenging that conviction.
C. Childress's conviction for assaulting Officer Model
In his second issue challenging his conviction for assaulting Officer Model, Childress contends that the record contains insufficient evidence to support the jury's finding that he possessed the requisite intent for the offense, namely and in relevant part, that he intentionally, knowingly, or recklessly caused bodily injury to Officer Model as alleged in the indictment. See Tex. Penal Code § 22.01(a)(1).
In addition to the previously described evidence, the jury heard other evidence regarding Childress's conduct toward Officer Model. Officer Model testified that while he attempted to free Officer Evers's leg from Childress's hold, Childress kicked Officer Model on his left knee, which he confirmed "[a]bsolutely" caused him pain. He testified that he did not believe the contact was accidental in light of Childress's assault of Officer Evers. Office Model also cited Childress's "combative" behavior and "continuous resistance" against officers' efforts to detain him, including that Childress was "mouthing off" and "dragging his feet" while the officers attempted to escort him to the booking facility, which Officer Model testified "is another sign of resistance." Further, Officer Model's testimony was corroborated by video evidence.
We conclude that the evidence is sufficient to support Childress's conviction for assaulting Officer Model. We overrule his second issue challenging that conviction.
D. Childress's conviction for harassing Officer Esquivel
In his first issue challenging his conviction for harassing Officer Esquivel, Childress contends that the record contains insufficient evidence to support the jury's finding that Childress, with intent to assault, harass, or alarm, caused Officer Esquivel to contact Childress's saliva while Officer Esquivel was lawfully discharging an official duty, as alleged in the indictment. See id. § 22.11(a)(2). Specifically, Childress argues that the evidence is insufficient to show (1) that he intended to assault, harass, or alarm Officer Esquivel and (2) that Officer Esquivel was discharging an official duty at the time of the offense.
1. Requisite intent
Assuming without deciding that the harassment statute requires proof that a defendant intended to assault, harass, or alarm the complainant, see id., we conclude that the evidence is sufficient to establish the requisite intent under the theory of transferred intent. Under that theory, a defendant is "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." Id. That theory applies when there is evidence that a defendant "intends to injure or harm a specific person but injures or harms a different person or both." Manrique, 994 S.W.2d at 647 (McCormick, P.J., concurring).
As previously discussed, the State introduced video evidence and witness testimony demonstrating that Childress was physically and verbally combative when officers took him into custody. The evidence showed that Childress assaulted multiple officers as they attempted to escort him to the temporary booking station and eventually into the police car. The video evidence depicts Childress spitting out of the window in the direction of the officers as soon as the window was lowered. Officer Esquivel testified that, when the window was lowered, "I heard the gargling noise" and "felt the impact on my hand, so I knew it was coming from [Childress]." Officer Esquivel explained that "[i]t looked like he was spitting at . . . Corporal Sebek, and I was standing directly beside him, and it ended up landing on me."
We conclude that the evidence supports a finding that Childress intended to assault, harass, or alarm Corporal Sebek by spitting on him and that some of Childress's saliva incidentally landed on Officer Esquivel. Therefore, the intent required to prove harassment of Officer Esquivel as alleged in the indictment is supported under the theory of transferred intent. See Tex. Penal Code §§ 6.04(b)(2), 22.11(a)(2); Manrique, 994 S.W.2d at 647 (McCormick, P.J., concurring).
2. Lawfully discharging an official duty
Childress next contends that the evidence is insufficient to support a finding that Officer Esquivel was discharging an official duty when Childress caused his saliva to contact Officer Esquivel. See Tex. Penal Code § 22.11(a)(2). Officer Esquivel testified that he was on duty the night of the offense. He testified that when he arrived on the scene, Childress had already been placed in the police car, so he first ensured that the other officers were "okay." He then began assisting with Childress's arrest and in securing the scene. He explained that he had approached Officer Model "because I observed he had a large amount of items on top of his patrol vehicle, and just to see if he needed any help in searching the bag or if he needed any help to later document all of his items into evidence." Officer Esquivel's testimony and video evidence establish that, at that point, Childress's saliva made contact with Officer Esquivel. We conclude that the jury could have reasonably concluded that assisting other officers in the manner described by Officer Esquivel constitutes "an official duty" as set forth in the harassment statute. See id.
We conclude that the evidence is sufficient to support Childress's conviction for harassing Officer Esquivel. We overrule his first issue challenging that conviction.
III. Competency to stand trial
In all three of his appeals, Childress contends that the trial court abused its discretion by failing to sua sponte conduct an informal inquiry as to Childress's competency to stand trial. In support, he cites Texas Code of Criminal Procedure article 46B.004(b), which states that "[i]f evidence suggesting the defendant may be 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." Tex. Code Crim. Proc. art. 46B.004(b). He argues that the trial court's duty to conduct a competency inquiry under that provision arose on the third day of his three-day trial, when Childress (1) insisted on wearing jail-issued clothing instead of street clothes against counsel's advice and (2) displayed a legal pad in the direction of the jury on which he had written the number "20" during the State's closing argument on punishment.
Childress's issue also claims that the trial court abused its discretion in admitting evidence that he contends was more prejudicial than probative in violation of Texas Rule of Evidence 403. His argument, however, pertains only to his competency to stand trial. We therefore address only that contention. See Tex. R. App. P. 38.1; Leza v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011).
Assuming without deciding that Childress can raise this issue for the first time on appeal, we conclude that the trial court did not abuse its discretion in implicitly concluding that appellant was competent to stand trial because the conduct Childress cites does not rise to the level of evidence suggesting incompetency. See Tex. Code Crim. Proc. § 46B.004(c); see also Phillips v. State, No. 05-16-00850-CR, 2017 WL 2875522, at *1 (Tex. App.—Dallas July 6, 2017, no pet.) (mem. op., not designated for publication) (defendant's decision to remain in cell rather than go into courtroom during revocation hearing against counsel's advice did not suggest incompetency); Demarsh v. State, No. 02-15-00210-CR, 2016 WL 1267702, at *5 (Tex. App.—Fort Worth Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (statements by defendant suggesting "some irrationality" do not necessarily suggest incompetency); Hageman v. State, No. 03-13-00549-CR, 2015 WL 3545761, at *4 (Tex. App.—Austin June 5, 2015, no pet.) (mem. op., not designated for publication) (record showed that defendant's "bizarre" behavior may have been "the result of obstinacy instead of mental illness"). Moreover, the record demonstrates that, throughout his three-day trial, Childress was able to meaningfully communicate with his counsel and the trial court, that he understood the proceedings, and that he otherwise exhibited appropriate courtroom behavior. See Brock v. State, No. 03-14-00059-CR, 2015 WL 3396566, at *3-4 (Tex. App.—Austin May 22, 2015, pet. ref'd) (mem. op., not designated for publication) (evidence of prior mental illness did not suggest incompetency in light of substantial evidence demonstrating defendant's competency throughout trial proceedings). We thus overrule Childress's third issue challenging his two assault convictions and his second issue challenging his harassment conviction.
Before the jury announced its verdict on punishment, Childress's trial counsel described to the trial court on the record Childress's conduct in displaying the legal pad. The trial court stated, "I don't know what, if any, remedy you're asking for," and trial counsel responded only that "I just think for purposes of appeal . . . it should be part of the record." Childress never requested a competency inquiry or objected to the trial court's failure to conduct a competency inquiry.
CONCLUSION
We affirm the trial court's judgments of conviction.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: January 12, 2018 Do Not Publish