Negrotto, Alex v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Memorandum Opinion filed January 11, 2005

Affirmed and Memorandum Opinion filed January 11, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01189-CR

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ALEX NEGROTTO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 935,401

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

Appellant was indicted, in two separate cause numbers, for aggravated assault of a public servant and aggravated assault.[1] After waiving his right to a jury trial, appellant was convicted of aggravated assault of a public servant and sentenced to thirty years in the Texas Department of Criminal Justice, Institutional Division. In his sole point of error, appellant asserts the evidence was factually insufficient to prove he knew the man he threatened with a gun was a public servant. We affirm.

I. Factual and Procedural Background

On January 7, 2003, appellant came home to the complainant s trailer, where he had been living for roughly one month.[2] When the two got home, and for no apparent reason, appellant began striking the complainant; the record is unclear whether he used his fists, a gun, or some combination of the two on the complainant.[3] The complainant s mother called 911, and Deputy Shaddox was dispatched to the fight. He arrived between 8:00 and 9:00 p.m. with his patrol car s lights and sirens on. When he arrived at the trailer park, Deputy Shaddox left his car and approached on foot. Deputy Shaddox saw the two men about 10 yards from him and saw appellant was holding a twelve-gauge, sawed-off shotgun. Deputy Shaddox, who was in his full police uniform, shined his flashlight at appellant and ordered him to drop the gun and get down on the ground.[4] Deputy Shaddox fired his gun when appellant continued to walk towards him with the shotgun pointed at the deputy.

The State charged appellant with aggravated assault of a public servant. Appellant waived his right to a jury trial and the trial judge found him guilty of the charged offense. The trial judge found the enhancement paragraphs were true and sentenced appellant to thirty years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant now asks this court to decide whether the evidence was factually sufficient to support his conviction.

II. Factual Sufficiency Challenge

To prove appellant was guilty of the charged offense, the State was required to prove appellant knew the person he assaulted was a public servant. Tex. Penal Code 22.02 (b)(2) (making it a first degree felony to commit aggravated assault against a person the actor knows is a public servant ); Salazar v. State, 643 S.W.2d 953, 956 (Tex. Crim. App. 1983) (en banc) ( [T]he State must [] prove the defendant knew . . . that he was assaulting a peace officer . . . . ). Appellant argues on appeal, as he testified at trial, that it was so dark that night that he could not see that Deputy Shaddox was a police officer, and could not know the person he assaulted was a public servant. For this reason, appellant contends the evidence was factually insufficient to convict him.[5]

In a factual sufficiency challenge, we review all of the evidence in a neutral light. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). When we consider all of the evidence in this neutral light, we ask whether the factfinder was rationally justified in finding guilt beyond a reasonable doubt. Id. The evidence is factually insufficient if the evidence that supports the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if the evidence contrary to the verdict is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484 85. We must defer to the factfinder s determinations on the weight to give contradictory witness testimony because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for [the factfinder] who [was] in attendance when the testimony was delivered. Banks v. State, 124 S.W.3d 879, 883 (Tex. App. Houston [14th Dist.] 2003, pet. ref d) (citing Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000)).

The following evidence supports the verdict. The complainant testified that, while appellant was hitting him, he yelled to his mother to call 911. Deputy Shaddox went to the trailer park with his patrol car s lights and sirens on. When Deputy Shaddox approached appellant, he was wearing his full police uniform and there was light shining from the porches of the trailers. Deputy Shaddox was only ten yards from appellant and appellant had an opportunity to see Deputy Shaddox s uniform when he continued to walk towards the deputy, despite the deputy s repeated requests that appellant put down his gun and get on the ground. Deputy Shaddox testified that he thought there was enough light for appellant to see he was dressed in full police uniform. Deputy Shaddox also testified that he was able to see the complainant had suffered a severe head injury; this indicates there would have been sufficient light for appellant to see that Deputy Shaddox was a police officer. This evidence is not so weak that it was unreasonable to find, beyond a reasonable doubt, that appellant knew Deputy Shaddox was a police officer. See Zuniga, 144 S.W.3d at 484.

Appellant points to the following evidence as contrary to the verdict. It was dark when Deputy Shaddox arrived and, because the deputy was shining a flashlight into appellant s eyes, he was unable to see who was ordering him to drop the gun and get on the ground. Also, Deputy Shaddox did not announce that he was a police officer. And finally, according to appellant s own testimony, he was unaware that Deputy Shaddox was a police officer. When we compare this contrary evidence to the evidence cited above that supports the verdict, we cannot conclude that the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484 85. We find the evidence was factually sufficient to support appellant s conviction and affirm.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed January 11, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The aggravated assault case is not part of this appeal.

[2] The complainant, a friend of appellant s, had allowed appellant to stay at his home, a trailer he shared with his mother. That night, the complainant had taken appellant to introduce him to people who might be able to give appellant a job.

[3] Regardless of the method used, appellant beat the complainant so severely that he required stitches and could not return to work for eight days.

[4] Deputy Shaddox testified that he asked appellant to drop his shotgun three to four times. He also ordered appellant to get down on the ground.

[5] We address appellant s factual insufficiency claim despite his failure to raise it below because a challenge to the evidence s sufficiency at the trial court level is not required. See, e.g., Banks v. State, 124 S.W.3d 879, 883 n.1 (Tex. App. Houston [14th Dist.] 2003, pet. ref d) (citing Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001)).