Opinion
No. 05-11-00526-CR
04-24-2012
JO ANN COLE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed April 24, 2012.
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82486-08
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Myers
A jury convicted appellant, Jo Ann Cole, of assault on a public servant, and the trial court assessed appellant's punishment at fifteen years' imprisonment. In two points of error, appellant argues the evidence is insufficient to support the verdict and the trial court abused its discretion by denying appellant's motion for continuance. We affirm the trial court's judgment.
Discussion
Sufficiency
In her first point of error, appellant contends the evidence is insufficient to support the verdict "because it is uncontroverted that the victim was the aggressor and was the first to use force against [a]ppellant."
When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.); Clayton v.. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
As explained in the court's charge to the jury, a person commits the offense of assault on a public servant if she intentionally, knowingly, or recklessly causes bodily injury to another person, including the person's spouse, whom the actor knows is a public servant, while the public servant is lawfully discharging an official duty. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West 2011). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). "Public servant" includes an officer, employee, or agent of government. Id. § 1.07(41)(A).
The court's charge also included the following instructions on the law of self-defense as found in sections 1.07 and 9.31 of the penal code:
A person is justified in using force against another when and to the degree she reasonably believes the force is immediately necessary to protect herself against the other's use or attempted use of unlawful force.Id. §§ 1.07(a)(42), (a)(48), 9.31(a), (b).
"Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
"Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.
The use of force against another is not justified:
1. In response to verbal provocation alone;
2. If the actor consented to the exact force used or attempted by the other;
3. If the actor provoked the other's use or attempted use of unlawful force, unless;
a. The actor abandons the encounter, or clearly communicates to the other her intent to do so reasonably believing she cannot safely abandon the encounter; and
b. The other nevertheless continues or attempts to use unlawful force against the actor.
The initial burden to produce evidence supporting self-defense rests with the defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.3d 910 (1991)). Once such evidence is produced, the burden shifts to the State to disprove the defense beyond a reasonable doubt. Id. This burden of persuasion is not one that requires the production of evidence, but requires only that the State prove its case beyond a reasonable doubt. Id. When, as in this case, the jury finds the defendant guilty, there is an implicit finding against self-defense. Id.
The penal code also provides guidelines for when a correctional officer's use of force is considered lawful. See Tex. Penal Code Ann. § 9.53 (West 2011). "Knowing the innate danger in maintaining a correctional facility, the legislature grants correctional officers the right to use reasonable force against an inmate to maintain their own safety, the safety of others, or the security of the prison as a whole." Hall v. State, 158 S.W.3d 470, 475 (Tex. Crim. App. 2005). Section 9.53 of the penal code provides:
An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.Tex. Penal Code Ann. § 9.53 (West 2011).
The jury was not charged on section 9.53. But as the State points out, we measure the legal sufficiency of the evidence against a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge "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. (quoting Malik, 953 S.W.2d at 240).
If a correctional officer's use of force falls within this definition, he is "lawfully discharging his official duties." See Hall, 158 S.W.3d at 475. The relevant inquiry is not who initiated the use of force, but whether the correctional facility officer was justified in using force. See id. at 475-76. In Hall, the court of criminal appeals concluded that a correctional facility officer who pushed an inmate for the purpose of facilitating the inmate's compliance with a legitimate order was lawfully discharging his official duties under § 9.53. See id. at 476.
The evidence showed that, on September 6, 2008, Debbie Bardin was working as a detention officer at the Collin County Sheriff's Office. She was assigned to "pod 5B" of the Collin County jail, an open dormitory-style unit, where she supervised approximately fifty inmates. On the day in question, Bardin was the only officer in the pod. She was in uniform and, pursuant to jail regulations, was not carrying a weapon.
The inmates in pod 5B were not locked in cells and could walk about freely within the pod, but were required to respond to commands and be present during certain events, which included "head count," meal distribution, and "med pass." "Med pass" required the inmates "that receive medicines" to line up along a ramp and receive the medication from a nurse.
On September 6, 2008, "med pass" took place at "about the same time as usual." Bardin "instructed everybody . . . that takes medicine or has their blood pressure checked or anything" to line up along the ramp, but appellant did not comply. When Bardin called out appellant's name, she remained on her bunk, raised her head, and did not respond. Bardin called appellant's name several more times, but she did not respond. Another inmate who "was in the cubicle" with appellant went over to her and shook her, telling "her to get up . . . because it was" time for "med pass." Appellant started to put on her shoes, looked out at the long line of inmates standing on the ramp, "kind of shrugged," and then "laid back down and took her shoes back off."
After the "med pass nurse left," Bardin went to appellant's pod and "told her she was gonna get a 23-hour lockdown for interfering with med pass." Appellant "said she didn't give a shit." Bardin walked back to the "pod desk" at the top of the ramp.
Bardin explained that "23-hour lockdown" is a form of punishment where the inmate has to remain in her bunk for twenty-three hours and loses certain privileges.
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A few seconds later, appellant approached Bardin and demanded a grievance form. Bardin
testified appellant was yelling, cursing, "and pointing her finger at me," and that appellant's body language and face indicated she was "mad." Bardin told appellant she would first have to calm down, and that "you're not gonna get one right now demanding anything." Appellant tried to reach "over the desk to get a grievance [form]." Bardin told appellant to return to her bunk. Appellant walked to her bunk but continued "cussing and yelling" at Bardin. Appellant called her a "fucking bitch," then yelled, "[I]f you weren't wearing that uniform I'd whoop your ass." This statement made Bardin come out from behind the "pod desk" and tell appellant to be quiet. At that point, according to Bardin, "[t]he whole pod was . . . kind of crazy."
Bardin testified that appellant then "got off her bunk" and "stormed" up the ramp towards her. Appellant "got right up to" Bardin, at which point Bardin "shoved her back." Bardin testified she shoved appellant because she "was scared" and because it "gave me time to call on the radio" for assistance. After Bardin requested assistance, appellant punched her on the left side of her head with her fist. Bardin testified she "just started fighting back," and that appellant "just . . . kept hitting me." Bardin was scared and thought she was "fighting for my life until somebody gets here." The next thing Bardin recalled was other officers "pulling us apart" and restraining appellant.
Bardin testified that, as a result of appellant's attack, she suffered injuries that caused her pain. The State introduced photographs of Bardin's injuries, which included wounds to her arms and hands, a swollen eye, and bruises to the face and head.
The jury could reasonably infer intent from appellant's conduct and the surrounding circumstances. See Clayton, 235 S.W.3d at 778. The evidence in this case shows appellant refused a direct order to return to her bunk and "stormed" towards Bardin, that Bardin shoved appellant because she was frightened and because that gave her time "to call on the radio" for assistance from other officers, and that appellant hit Bardin repeatedly until other officers arrived at the scene. There is no evidence Bardin either departed from her duties or was criminally or tortiously abusing her status as a public servant at the time of the confrontation with appellant. See Hall, 158 S.W.3d at 475. The jury could reasonably conclude Bardin was lawfully discharging an official duty. See id.; see also Tex. Penal Code Ann. § 22.01(a)(1), (b)(1). Examining the evidence in the light most favorable to the verdict, a rational trier of fact could, therefore, have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. We overrule appellant's first point of error. Continuance
In her second point of error, appellant asserts the trial court abused its discretion by denying her motion for continuance "in order to secure the presence of a properly subpoenaed witness favorable to appellant." After the prosecution rested its case-in-chief, defense counsel informed the court that a defense witness, Gloria Evans, had been served with a subpoena on December 10, 2010. But when the case was called for trial Evans did not appear, despite a writ of attachment issued by the court. Defense counsel asked the court for a continuance "so that [Evans] would be able to be brought to court." During the discussion, the prosecutor told the court Evans "does currently have an active warrant for her arrest out of JP." The court concluded:
Your motion is denied and overruled. Because from what you all have told me, you have made efforts to contact her at every available number and/or location that you have that anyone has any reason to believe that she is at. She's been subpoenaed. I've issued the Writ of Attachment. As far as I know, there are officers searching for her. If she does indeed have an active warrant for her arrest, that would explain why she might be less than cooperative in failing to appear at the courthouse for fear that she would be taken into custody. But if no one has any real idea where she's at, and we're now at the beginning of the Defense case-in-chief, respectfully, your Motion for Continuance is denied and overruled.
Article 29.03 of the code of criminal procedure provides in part that "[a] criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006). Furthermore, article 29.08 provides that "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex. Code Crim. Proc. Ann. art. 29.08 (West 2006). The court of criminal appeals has concluded oral, unsworn motions for continuance preserve nothing for appellate review. See, e.g., Anderson v. State, 301 S.W.3d 276, 278-79 (Tex. Crim. App. 2009); Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995).
The record shows appellant orally requested the continuance. The trial court denied the oral motion. Appellant's request was neither written nor sworn. Appellant admits oral motions for continuance preserve nothing for appellate review, but she urges us to consider her point of error under an equitable or due process exception to the rule. The court of criminal appeals, however, has rejected attempts to invoke due process exceptions to the preservation requirements governing continuance motions. See Anderson, 301 S.W.3d at 278-281; Sumrell v. State, Nos. 05-09-00238- CR & 00239-CR, 2010 WL 3123302, at *3 (Tex. App.--Dallas Aug. 10, 2010, pet. ref'd) (not designated for publication). Thus, since appellant's motion for continuance was neither sworn nor in writing, she failed to preserve error. See Anderson, 301 S.W.3d at 280-81; Dewberry, 4 S.W.3d at 756; Shavers v. State, 881 S.W.2d 67, 75 (Tex. App.--Dallas 1994, no pet.); see also Ricketts v. State, 89 S.W.3d 312, 317 (Tex. App.--Fort Worth 2002, pet. ref'd) ("language in Dewberry does not permit equitable review of an oral motion for continuance"); Sumrell, 2010 WL 3123302, at *3. We overrule appellant's second point of error.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110526F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JO ANN COLE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00526-CR
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 82486-08).
Opinion delivered by Justice Myers, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered April 24, 2012.
LANA MYERS
JUSTICE