In the matter of S.T.--Appeal from County Court at Law of Midland County

Opinion filed February 15, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00151-CV

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   IN THE MATTER OF S.T.

On Appeal from the Court Court at Law

Midland County, Texas

Trial Court Cause No. JO5285

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment adjudicating a juvenile of delinquent conduct. The jury found that S.T. engaged in delinquent conduct by interfering with the public duties of a peace officer. Tex. Pen. Code Ann. ' 38.15 (Vernon Supp. 2006). The trial court placed appellant on probation for one year. In three points of error, appellant complains of insufficiency of the evidence, destruction of a significant portion of a videotape that was introduced at trial, and evidentiary error. We affirm.

The State=s Petition for Delinquency Trial

The State alleged that appellant engaged in delinquent conduct as defined in Tex. Fam. Code Ann. ' 51.03 (Vernon Supp. 2006). Section 51.03(a)(1) defines delinquent conduct as Aconduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail.@ The State alleged that, on or about May 31, 2004, A[appellant] did then and there with criminal negligence, interrupt, disrupt, impede, and otherwise interfere with peace officers, to wit: [Gregory] Kent Spencer and [Marquez] Dominguez, while said peace officers [were] performing a duty and exercising authority imposed and granted by law, contrary to Section 38.15, Texas Penal Code.@

Sufficiency of the Evidence

In her first point of error, appellant asserts that the evidence was insufficient to support the jury=s verdict. In her brief, appellant specifically challenges the legal sufficiency of the evidence to support the jury=s finding that she engaged in delinquent conduct. Appellant does not specifically refer to factual sufficiency of the evidence in her brief. However, appellant did not limit her first point of error to a legal sufficiency challenge. Rather, appellant stated that Athe evidence was insufficient to support the verdict.@ Therefore, we construe appellant=s first point of error as attacking the legal and factual sufficiency of the evidence.

The adjudication of a juvenile as a delinquent is based on the criminal burden of proof: beyond a reasonable doubt. Tex. Fam. Code Ann. ' 54.03(f) (Vernon Supp. 2006). Therefore, we apply the same standards of review in juvenile cases challenging the sufficiency of the evidence as we do in criminal cases. In re L.F.L.T.B., 137 S.W.3d 856, 858 (Tex. App.CEastland 2004, no pet.); In re Z.L.B., 115 S.W.3d 188 (Tex. App.CDallas 2003, no pet.); In re E.R.L., 109 S.W.3d 123 (Tex. App.CEl Paso 2003, no pet.); In re J.D.P., 85 S.W.3d 420 (Tex. App.CFort Worth 2002, no pet.). To determine if the evidence is legally sufficient, we must review 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 10-11. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).

The State alleged that appellant violated Section 38.15(a)(1) of the Penal Code. Section 38.15(a)(1) provides that a person commits the offense of interference with public duties if the person, with criminal negligence, interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. Section 38.15(d) provides that it is a defense to prosecution if the interruption, disruption, impediment, or interference alleged consisted of speech only. Section 6.03 of the Penal Code defines criminal negligence:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

Tex. Pen. Code Ann. ' 6.03(d) (Vernon 2003).

Appellant argues that the evidence was insufficient to support a finding that she violated Section 38.15(a)(1) for two reasons. First, appellant contends that the evidence showed that her conduct during the incident in question consisted of speech only. Second, appellant contends that the evidence failed to show that her actions interfered with the duties of a peace officer.

Midland Police Officer Gregory Kent Spencer was the only witness at trial. Officer Spencer testified that he was on patrol duty on May 31, 2004. At about 1:20 a.m., Officer Spencer received a call about an assault that had occurred at a residence on West Kansas Street in Midland. Officer Spencer said that, on his way to the location, a woman, whom Officer Spencer identified as Ms. Wilkerson, waved him down and told him that a person known to her had been choked at the residence. The assault suspect resided at the residence. After talking with Wilkerson, Officer Spencer then proceeded to the location. Wilkerson and several other people, including appellant and appellant=s brother, also went to the location in a separate car. Officer Spencer said that Midland Police Officer Marquez Dominguez also responded to the call. Officer Dominguez was not available to testify at trial. He was stationed with the Army National Guard in Iraq.

Officer Spencer testified that Wilkerson and several other people, including appellant and appellant=s brother, got out of their car and walked to the suspect=s yard. Officer Spencer believed that they were going to start a fight. He said that they were screaming at people who were standing on the front porch of the residence. Officer Spencer and Officer Dominguez told Wilkerson and the others to get back in their car, but they refused to get back in the car. Officer Spencer testified that Wilkerson appeared to be very upset. Wilkerson and the other people with her did not like Officer Spencer telling her to get back in the car. Officer Spencer said that, although Wilkerson and the others eventually moved back in the general direction of their car, they were screaming at him about it.

Officer Spencer testified that he talked with the victim of the alleged assault in front of one of the patrol cars. Officer Spencer was attempting to find out the details of the alleged assault. At the same time, Officer Dominguez was talking with appellant=s brother. Officer Spencer said that appellant=s brother was upset. Officer Spencer said that appellant=s brother was screaming and that he heard appellant=s brother say that nobody was going to talk to his Amama@ the way that Officer Spencer had when he told her to get back in the car. Officer Spencer testified that, as he was talking with the victim, he realized that appellant=s brother and Officer Dominguez were fighting and struggling. Officer Spencer did not see or know what started the struggle between appellant=s brother and Officer Dominguez. However, the incident was videotaped by a camera in Officer Spencer=s patrol car, and the State introduced into evidence a copy of the videotape. The videotape showed that Officer Dominguez and appellant=s brother were standing close to each other. The videotape then showed that appellant=s brother advanced toward Officer Dominguez until appellant=s brother got up against Officer Dominguez. The videotape then showed the struggle between appellant=s brother and Officer Dominguez. Officer Spencer testified that he ran over to help Officer Dominguez. Officer Spencer said that, when he went to help Officer Dominguez, A[e]verybody started coming after us hollering and screaming and telling us we couldn=t do that.@ At some point, the officers gained control of the situation. Officer Dominguez handcuffed appellant=s brother and placed him in the backseat of his patrol car.

Officer Spencer testified that, after Officer Dominguez placed appellant=s brother in the patrol car, the officers tried to talk with the victim. Officer Spencer said that the victim was extremely upset, and the videotape showed that the victim was upset about what had happened to appellant=s brother. Officer Spencer tried to calm the victim. Officer Spencer said that he shouted at the victim and told him to shut up. The suspect in the alleged assault of the victim was sitting on the front porch of the residence. The victim said that he was going to get the suspect, and the victim headed to the front porch of the residence. Officer Spencer said that the officers grabbed the victim and took him to the ground. During the struggle with the victim, Officer Spencer felt the victim=s hands on his pistol. Officer Spencer then pepper sprayed the victim in the face. The pepper spray stopped the victim, and the officers put the victim face down on the ground. Officer Spencer testified that, while the officers were handcuffing the victim, appellant charged toward them. Officer Spencer said that appellant had been warned to back up several times. Officer Spencer saw appellant approaching Officer Dominguez out of the corner of his eye. Officer Spencer thought that appellant was going to hit Officer Dominguez. The videotape of the incident showed appellant approaching the officers as Officer Dominguez was on his knees over the victim. As appellant approached the officers, she left the camera area. The videotape then showed Officer Dominguez lunging in the direction of appellant. Officer Spencer said that Officer Dominguez took appellant to the ground, handcuffed her, and placed her in one of the patrol cars.

Officer Spencer testified that the actions of appellant and of appellant=s brother interfered with, disrupted, impeded, or interrupted the officers=s investigation of the alleged assault. Officer Spencer said that the officers could not conduct the investigation of the assault because of the series of events involving appellant and her brother. Officer Spencer identified conduct of appellant and her brother that interfered with the investigation. Specifically, Officer Spencer said that the officers could not get anything done because of the hollering and screaming of appellant and her brother and the others, that appellant and appellant=s brother would not get back in their car even though the officers told them to do so, that appellant=s brother became involved in the struggle with Officer Dominguez, and that appellant charged toward the officers. Officer Spencer believed that appellant was going to assault Officer Dominguez or him when she charged toward them. Officer Spencer was unable to talk with the assault suspect during the series of events involving appellant and appellant=s brother.

We hold, after reviewing the entire record, using the standards announced above, that the evidence was both legally and factually sufficient to show that appellant interfered with the public duties of a peace officer and that appellant=s conduct consisted of more than speech. The evidence established that Officer Spencer and Officer Dominguez were performing their duties of investigating an alleged assault. As they attempted to investigate the alleged assault, appellant screamed and yelled at them. Although the officers instructed appellant to get back in the car, appellant refused to do so. Officer Spencer testified that appellant charged toward the officers, and the videotape showed appellant advancing toward the officers. The videotape then showed Officer Dominguez lunging in the direction of appellant. Appellant=s affirmative conduct of charging toward the officers was more than speech.

The evidence supports a finding that appellant=s conduct interrupted, disrupted, impeded, or otherwise interfered with the officers while they were performing the duty of investigating the alleged assault. The videotape showed Officer Dominguez=s reaction to appellant=s conduct. Officer Spencer said that, as a result of the series of events involving appellant and her brother, the officers could not conduct the investigation that they were there to conduct. The evidence also supports a finding that appellant ought to have been aware of a substantial and unjustifiable risk that her actions in charging toward the officers would interrupt, disrupt, impede, or otherwise interfere with the officers as they tried to investigate the alleged assault.

Appellant cites Carney v. State, 31 S.W.3d 392 (Tex. App.CAustin 2000, no pet.), in arguing that the evidence was insufficient to support the jury=s finding that she interfered with public duties. In Carney, the State alleged that the defendant interfered with the duties of a peace officer by blocking the entry into a residence. Carney, 31 S.W.3d at 396. However, in Carney, there was no evidence that the defendant blocked the police officer=s entry into the residence by physical action. Id. at 398. In the absence of a physical action of blocking the entry into the residence, the Carney court concluded that the evidence was legally insufficient to support a finding that the defendant=s conduct constituted anything more than speech. Id. Therefore, the court held that the evidence was legally insufficient to support the defendant=s conviction for interfering with the public duties of a peace officer. Id. at 398.

This cause is distinguishable from Carney. In this cause, appellant engaged in physical action by charging the officers. Appellant engaged in this action despite instructions to get back in the car and warnings to back up. Unlike the defendant=s conduct in Carney, appellant=s conduct did not consist of speech only. When a defendant undertakes affirmative physical action that interferes with the public duties of a peace officer, the defendant=s conduct does not consist of speech only. See Barnes v. State, 206 S.W.3d 601, 605-06 (Tex. Crim. App. 2006) (defendant moved her vehicle forward during a traffic stop, disregarded a police officer=s safety commands by removing her hands from view, and shouted to her child to Arun@); Berrett v. State, 152 S.W.3d 600, 604-05 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (defendant moved his arm to prevent handcuffing and arrest); Key v. State, 88 S.W.3d 672, 676-77 (Tex. App.CTyler 2002, pet. ref=d) (despite officer=s instructions to stay on the sidewalk, defendant stepped off of the sidewalk and approached people the police were questioning).

The courts in Berrett and Key held that the evidence was legally and factually sufficient to support convictions for interference with the public duties of peace officers. Berrett, 152 S.W.3d at 604-05; Key, 88 S.W.3d at 676-77. Similar to the conduct of the defendants in Berrett and Key, appellant in this cause engaged in affirmative physical action interfering with the duties of the peace officers.

The evidence was legally and factually sufficient to support the jury=s finding that appellant interfered with public duties. We overrule appellant=s first point of error.

Destruction of Videotape

In her second point of error, appellant asserts that the destruction of a significant portion of the videotape (State=s Exhibit No. 1) that was viewed by the jury at trial requires the granting of a new trial. The court reporter included a videotape as State=s Exhibit No. 1 in the reporter=s record filed in this cause. However, the incident in question was not included in State=s Exhibit No. 1. After the parties filed their briefs in this cause, this court entered an order directing the court reporter to prepare a true and correct copy of the original State=s Exhibit No. 1 that was admitted into evidence and played before the jury. Later, the court reporter filed a DVD containing a true and correct copy of the events contained in the original State=s Exhibit No. 1. The DVD contains the portion of the original State=s Exhibit No.1 B the incident in question B that the State played for the jury during trial. Therefore, we overrule appellant=s second point of error.

Evidentiary Issues

In her third point of error, appellant complains that the trial court abused its discretion in allowing Officer Spencer, a lay witness, to testify as to a matter about which he had no personal knowledge. In her brief, appellant sets forth the following testimony that the State elicited from Officer Spencer:

[PROSECUTOR]: Now, who was that who approached you and Officer Dominguez while you were on the ground?

[OFFICER SPENCER]: That was [appellant]. It=s the young female sitting over there at the table, a white top.

[PROSECUTOR]: Your Honor, I would ask that the record reflect the witness has identified [appellant].

[THE COURT]: Yes.

[PROSECUTOR]: Now when she was coming up to you and Officer Dominguez, what was your thought at that time as to her intent?

[OFFICER SPENCER]: I thought her intent was bad, that she was going to try to assault either myself or Officer Dominguez. That is what went through my head.

On appeal, appellant asserts that the above testimony was inadmissible because it constituted improper lay opinion testimony regarding Officer Spencer=s interpretation of appellant=s acts and conduct. Appellant also asserts that the trial court erred in allowing Officer Spencer to testify regarding the contents of the videotape because the jury could have fully understood the videotape and drawn its own inferences from the videotape without Officer Spencer=s testimony. Appellant also asserts that the trial court erred in allowing Officer Spencer to testify as to the reason Officer Dominguez arrested appellant because Officer Spencer lacked personal knowledge of the reason for the arrest.

However, appellant did not object to any of the complained of testimony at trial. To preserve error for appellate review, the complaining party must make a timely, specific objection in the trial court and obtain a ruling on the objection. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Appellant did not preserve the alleged errors for review.

Additionally, even if appellant had objected to the testimony at trial, the trial court would not have abused its discretion in allowing the testimony. We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Burden, 55 S.W.3d at 615. Error in the admission of evidence is nonconstitutional error and is, therefore, subject to a harm analysis under Tex. R. App. P. 44.2(b). Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); West v. State, 124 S.W.3d 732, 734 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Therefore, to obtain a reversal of a conviction based on error in the admission of evidence, an appellant must show that the trial court=s ruling was in error and that the error affected her substantial rights. Rule 44.2(b); West, 124 S.W.3d at 734.

The State properly authenticated the videotape of the incident. On appeal, appellant does not assert that the videotape was inadmissible. Officer Spencer was present during the incident and saw appellant charging toward the officers. Officer Spencer identified appellant in the videotape. Officer Spencer=s testimony explained the contents of the videotape. Officer Spencer=s testimony was proper.

However, even if the admission of the complained of evidence had constituted error, the record does not demonstrate that appellant was harmed by the evidence. Officer Spencer saw appellant charging toward the officers, and the jury viewed the videotape of the incident. The videotape showed appellant advancing toward the officers. We overrule appellant=s third point of error.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

February 15, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.