Evans, Eric aka Kendrick Simmons v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmedand Opinion filed August 8, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01100-CR

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ERIC EVANS a/k/a KENDRICK SIMMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris  County, Texas

Trial Court Cause No. 886,863

O P I N I O N

Appellant, Eric Evans, a/k/a Kendrick Simmons, appeals his conviction for assault against a public servant, a third degree felony. In three points of error, appellant claims the trial court erred in (1) granting the State=s motion to strike a venire person for cause, (2) overruling appellant=s motion for an instructed verdict, and in (3) failing to properly instruct the jury in the court=s charge. We affirm.

Background and Procedural History

On November 19, 2000, Houston Police Department Officers Richard Pederson and Jose Benavides were dispatched to an apartment complex regarding a disturbance. Appellant and his aunt, Valerie Todd, were arguing in the parking lot of the complex when the officers arrived. Suspecting that appellant and Todd were the subjects of the disturbance call, the officers approached them. Officer Pederson testified that Todd said: AGet [appellant] away from me.@ Officer Pederson said that he grabbed appellant=s arm to restrain him and appellant turned and punched him in the face, cutting the inside of his mouth and causing his nose to bleed. Following a brief struggle, the officers subdued appellant and arrested him. Following a jury trial, appellant was convicted and, pursuant to an agreement with the State, sentenced to twenty-five years= confinement. This appeal followed.

Strike for Cause

In his first point of error, appellant claims the trial court erred in granting the State=s challenge for cause against venire person Marcella Torres. Appellant argues that the State failed to make the necessary showing of bias under article 35.16 of the Texas Code of Criminal Procedure.

It is well-settled that if a defendant fails to object when a venire person is excused for cause, he or she may not subsequently challenge that ruling on appeal. Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999); see also Tex. R. App. P. 33.1. Following the conclusion of the voir dire examination, the trial court asked the prosecutor and appellant=s trial counsel if either had challenges for cause. Both attorneys gave the trial court their respective requests. The State requested that Torres and five others be removed. Appellant=s trial counsel stated that he agreed with one of the requests, but he did not object as to the others, including Torres. We disagree with appellant=s contention that his silence Acommunicated to the court that he objected to the challenge of venire person Torres for cause@ and that he thus preserved the error for review. An objection must be clearly conveyed to the trial judge. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

In any event, even if the trial court erred in excusing Torres, the record must indicate that an objectionable juror was forced upon the appellant. Jones v. State, 982 S.W.2d 386, 393-94 (Tex. Crim. App. 1998). There being no such showing in this case, appellant=s first point of error is overruled.

Instructed Verdict

In his second point of error, appellant claims the trial court erred by overruling appellant=s motion for an instructed verdict. A challenge to the trial court=s ruling on a motion for instructed verdict is essentially a challenge to the legal sufficiency of the evidence to support a conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Therefore, we consider all the evidence in the light most favorable to the jury=s verdict and determine whether any rational jury 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, 2788-89 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).

In this case, appellant was charged with assault on a public servant. See Tex. Pen. Code Ann. ' 22.01(a)(1), (b)(1) (Vernon Supp. 2002). A person commits such an offense if he knowingly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. See id. Appellant argues the State failed to allege or prove what specific official duty the officer was lawfully discharging when he suffered bodily injury. The evidence shows that Officer Pederson and his partner were on duty, working patrol and wearing uniforms, when they were dispatched to investigate a reported disturbance. Based upon this evidence, a reasonable fact finder could have determined beyond a reasonable doubt that Officer Pederson was lawfully discharging his official duties at the time of the assault. Farris v. State, 819 S.W.2d 490, 496 (Tex. Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 298 (Tex. Crim. App. 1993) (finding, in similar circumstances, sufficient evidence that an officer was acting in the lawful discharge of an official duty while investigating a suspicious circumstance in uniform and driving an official patrol vehicle). Appellant=s second point of error is overruled.

Jury Charge

In his third and final point of error, appellant claims the trial court erred by failing to apply the law to the facts of the case in the application paragraph of the jury charge and in failing to define Aofficial duty.@ However, when the charge was presented to appellant=s counsel for objections, he did not object. An appellant complaining for the first time on appeal of an error in the charge that was not objected to at trial will obtain a reversal only if the error is so egregious and created such harm that appellant was denied a fair and impartial trial. Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984). To determine whether an error is egregious, the actual degree of harm must be assessed in light of the entire jury charge, the state of the evidence, including the contested issues, the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record in the trial as a whole. Cole v. State, 46 S.W.3d 427, 433 (Tex. App.CFort Worth 2001, pet. ref=d).

In the indictment, the State alleged appellant Aknowingly cause[d] bodily injury to . . . Complainant, a person the Defendant knew was a public servant while the Complainant was lawfully discharging an official duty, to-wit: a peace officer . . . .@ Appellant alleges the trial court erred in failing to provide a definition of Aofficial duty.@ A trial court is responsible for delivering to the jury Aa written charge distinctly setting forth the law applicable to the case.@ Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2002). A charge could not fully set forth that law without including the definitions of those words and phrases that have been legislatively provided. See Tex. Pen. Code Ann. '1.07 (Vernon 1994) (listing statutory definitions of words and phrases); see also Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) (recognizing case law inferentially supports the conclusion that a statutorily defined word or phrase must be included in the charge as part of the law applicable to the case). However, Aofficial duty@ is not statutorily defined. See Tex. Pen. Code Ann. '' 1.07 (Vernon 1994), 22.01 (Vernon Supp. 2002). Accordingly, we find no support for appellant=s argument that the trial court erred in failing to provide a definition, not requested by appellant and not defined by statute. See Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (recognizing a trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury).

Even if the trial court erred, the error does not rise to the level of egregious harm or constitutional error. See Barrera, 982 S.W.2d at 780. As previously discussed, the evidence supports the jury=s finding that Officer Pederson was lawfully discharging an official duty at the time of the assault. Even without a definition, in light of this evidence, we conclude that appellant did not suffer egregious harm sufficient to deny him a fair and impartial trial.

Appellant further argues that the trial court erred in failing to apply the facts of the case to the law in the application paragraph. However, absent an objection or request by appellant, no error exists when the portion of the charge applying the facts to the law duplicates the language in the indictment. See Rivera v. State, 885 S.W.2d 581, 585 (Tex. App.CEl Paso1994, no pet.); see, e.g., Brewer v. State, 852 S.W.2d 643, 645 (Tex. App.CDallas1993, no pet.) (recognizing that a defendant is not entitled to a more specific application of the law of parties when failing to object or to file a specially requested charge). In this case, we find no discrepancy between the indictment and the jury charge.

Accordingly, appellant=s third point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed August 8, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).