Jesse Paul McBeth v. The State of Texas--Appeal from 38th Judicial District Court of Uvalde County

99-00498 McBeth v State of Texas.wpd No. 04-99-00498-CR
Jesse Paul MCBETH,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District Court, Uvalde County, Texas
Trial Court No. 98-06-9683-CR
Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: July 12, 2000

AFFIRMED

This appeal arises from seventeen-year-old Jesse Paul McBeth's conviction for committing the offense of assault on a public servant. A jury found McBeth guilty of the offense, sentenced McBeth to four years in prison, and probated the sentence. McBeth raises five issues in this appeal.

Instruction for a Lesser Included Offense

McBeth was charged with "intentionally, knowingly, or recklessly caus[ing] bodily injury to Deputy Bob Cook by striking [Deputy Cook] in the face with handcuffs." This charge arose from an altercation that occurred during a traffic stop in which Deputy Cook arrested McBeth and his passenger, seventeen-year-old Corey Lewis. During trial, Deputy Cook testified that after handcuffing the boys with their hands behind their backs, he placed McBeth and Lewis in the back seat of his patrol car. He further testified that after placing the boys in the car, both boys pulled their handcuffs to the front. Deputy Cook explained that after struggling with Lewis to recuff him from behind, McBeth struck him in the face with handcuffs when he approached McBeth to recuff him in turn. According to Deputy Cook, Lewis then exited the vehicle and kicked him in the chest. A struggle ensued. Ultimately, Deputy Cook was able to restrain both young men.

In his first and second issues, McBeth complains that the trial judge erred by refusing to submit his requested jury instruction on the lesser included offense of assault by offensive or provocative contact--an offense that does not require the State to prove that the defendant caused bodily injury. McBeth argues that because the State failed to prove that McBeth caused Deputy Cook bodily injury, he was entitled to an instruction on this lesser offense. McBeth maintains that the failure to instruct the jury on the lesser offense violated his state and federal due process rights and denied him a fair trial.

A two-part test exists for determining whether a jury charge must include an instruction on a lesser included offense: First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, some evidence must exist in the record that would permit the jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense, and not of the greater offense. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). A defendant's testimony alone may be sufficient to raise an issue requiring submission of an instruction on a lesser included offense. Day v. State, 532 S.W.2d 302, 307 (Tex. Crim. App. 1975). The defendant is entitled to a requested instruction on a defensive issue raised by the evidence. Hill v. State, 585 S.W.2d 713, 715 (Tex. Crim. App. 1979).

In the instant case, McBeth relies on the testimony of State's witness Deputy Cook to support his argument that the State did not prove that McBeth caused bodily injury to Deputy Cook. McBeth argues that Deputy Cook was unable to say for certain that McBeth, rather than Lewis, caused the injury to his lip during the altercation that resulted in the charged offense. Despite this argument, Deputy Cook's testimony was unequivocal about whether McBeth caused him bodily injury. Specifically, Deputy Cook testified:

After that I had already noticed that Mr. McBeth was the same way [referring to handcuffs in the front of the body], so when I closed the door of my patrol car I started to walk around. . . .[A]s soon as I got around the car to the passenger side where McBeth was sitting, I opened the door and Mr. McBeth stepped out and said something like, "F-- you, a----." Excuse my language. Then he brought his hands around, and when he did he caught me right here in the mouth.

Deputy Cook also identified a photograph of himself that reflected a "busted lip." When questioned about when the injury occurred, Deputy Cook explained "[t]hat was the same night Mr. McBeth hit me in the mouth." When questioned on cross-examination about the cause of his injury, Deputy Cook responded that he was "pretty sure" that the cut to his lip resulted when McBeth hit him in the mouth. Although this statement indicates that Deputy Cook was not certain that McBeth caused the cut to his lip, Deputy Cook's testimony nonetheless demonstrates that McBeth caused him bodily injury.

The penal code defines bodily injury as "physical pain, illness, or impairment of physical condition." Tex. Pen. Code Ann. 1.07(a)(8) (Vernon 1994). The prosecutor specifically asked Deputy Cook about whether it hurt when McBeth hit him in the mouth. Deputy Cook responded, "[y]es, sir, it sure did." Regardless of whether Deputy Cook could state unequivocally that the cut to his lip resulted from being hit in the face with the handcuffs, Deputy Cook's testimony was clear that McBeth caused him bodily injury. As a result, no evidence exists that would permit the jury rationally to find that if McBeth was guilty, he was guilty of only assault by offensive or provocative contact, and not assault on a public servant. See Rousseau, 855 S.W.2d at 673. Although McBeth contends that the evidence raised his defensive theory-that he intentionally or knowingly caused physical contact with Deputy Cook when he knew or should have reasonably known that Deputy Cook would regard the contact as offensive or provocative, the evidence is more reasonably construed as raising a defensive theory of self-defense. See Tex. Pen. Code Ann. 22.01 (a)(3) (Vernon Supp. 2000) (defining Class C assault). We overrule McBeth first and second issues.

The Submission of the Culpable Mental State of Recklessness

In his third and fourth issues, McBeth argues that the district court erred by submitting the issue of recklessness to the jury because the issue was improperly pled in the indictment and because no evidence supported its submission. McBeth maintains that because the indictment did not allege any act to support the theory of recklessness, the trial judge should have granted his motion to quash the indictment. He further contends that because Deputy Cook testified that McBeth intended to hit him, and McBeth testified that he acted in self-defense, no evidence at trial supported any theory of recklessness. As a result, McBeth insists that the trial court erred by submitting the issue to the jury, and as a result, violated his state and federal due process rights.

The Code of Criminal Procedure requires that whenever recklessness "enters into or is a part or element of any offense, or it is charged that the accused acted recklessly . . . in the commission of an offense, the . . . indictment in order to be sufficient . . . must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness . . ., and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly . . . ." Tex. Crim. Code Proc. Ann. art. 21.15 (Vernon 1989). In the instant case, the indictment tracked the language of the penal code in alleging the elements of assault on a public servant. In addition, the indictment alleged that the offense was committed "by striking the victim in the face with handcuffs." This language is sufficient to give McBeth notice of the State's allegation of recklessness. As a result, the indictment was not improperly pled. Because "recklessness" was not improperly pled, the trial judge did not err by denying McBeth's motion to quash the indictment. As a properly pled theory, the issue was not improperly submitted to the jury. Although Deputy Cook testified that McBeth intended to hit him in the mouth, McBeth testified that he acted in self-defense. Both witnesses testified about a struggle that occurred on the roadside that night, albeit completely different versions. Each version of the struggle presented evidence for a jury to rationally find that McBeth acted recklessly in striking Deputy Cook in the mouth. Whether in actuality McBeth acted intentionally, knowingly, or recklessly was properly submitted to the jury for determination. We overrule McBeth's third and fourth issues.

The Combined Effect of Trial Rulings

In his fifth issue, McBeth complains about the synergistic effect of the complaints discussed above. Because McBeth maintained at trial that he acted in self-defense in response to aggressive acts by Deputy Cook, he contends that the trial court's rulings prevented the jury from giving effect to his defense theory-that at most, he committed misdemeanor assault. Although McBeth argues that the trial court's actions deprived him of a fair trial, we find no error that denied McBeth of a fair trial. Having overruled the complaints upon which this issue is based, we overrule McBeth's fifth issue, and affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH