Leonard E. Gates v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION
No. 04-06-00659-CR
Leonard E. GATES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. No. 914642
Honorable Olin Strauss, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

A jury found defendant, Leonard Gates, guilty of interfering with the duties of a public servant and assessed a punishment of six months' confinement, probated for eighteen months, a $700 fine, and a letter of apology to the officers involved in the case. In two issues on appeal, defendant asserts the evidence is legally and factually insufficient to support the jury's verdict. We affirm.

BACKGROUND

On February 5, 2005, officers Xavier Velazquez and Sebastian Jerrytone responded to a call regarding a disturbance in a parking lot. Once they arrived at the parking lot, the two attendants of the lot told the officers that a man, later identified as the defendant, and another driver, later identified as Paula Meadows, defendant's cousin, attempted to park in the lot where the attendants were working. When the attendants told the defendant he would have to pay to park there he became upset and he refused to pay, arguing that he had parked there for free on previous occasions. Both attendants told the officers that as defendant left the parking lot, he threatened to run them over if they did not get out of his way. The attendants described defendant as a male, about 6'1" or 6'2", medium set, stout, and wearing a black shirt and white pants. The attendants told the officers that they had observed defendant going into a nearby bar, the TKO. The officers decided to further investigate because the attendants appeared to be shaken up by the incident.

The officers entered the TKO bar at approximately 12:30 a.m. Based on the description the officers were given, they recognized defendant standing at the bar and approached him. Officer Jerrytone explained they were there to talk to defendant about the incident with the parking lot attendants. Because of safety concerns with the crowd and the noise in the bar, the officers asked the defendant to step outside so that they could speak with him. Defendant denied the incident occurred and refused to go outside. The officers asked defendant two or three times to step outside and each time he refused. Officer Velazquez then grabbed defendant's right arm by the wrist and the elbow. Officer Velazquez testified that defendant "slapped away at my hand to get it away." Officer Jerrytone testified that Officer Velazquez tried to take defendant's arm to usher him out, stating "I remember [defendant] making a movement, slapping his arm away." Additionally, on cross-examination, Officer Jerrytone described the interaction between Officer Velazquez and defendant as follows: "I remember [defendant] pushing his arm away and then I tried to grab him. . . .Yes. He pushed the officer's arm away. . . . it was a matter like that. Yeah." On re-direct examination, Officer Jerrytone was asked to act out the interaction between Officer Velazquez and defendant. The testimony proceeded as follows:

PROSECUTOR: Okay. And then, I'm you and you're Officer Velazquez, tell us how did Officer Velazquez escort[] him out, try to escort him out? Did he grab his arm like this?

OFFICER JERRYTONE: It was something like that.

 

PROSECUTOR: Okay. So he kind of tried to push him like this. And what did the defendant do in reaction to this?

 

OFFICER JERRYTONE: He smacked his arm out[.]

 

Both officers then struggled with defendant, eventually subduing him.

When defendant testified, he confirmed that the officers attempted numerous times to get him to go outside. However, defendant testified that when Officer Velazquez grabbed his arm, he only pulled his arm away. Also, Paula Meadows, the defendant's cousin, testified that Officer Velazquez grabbed for defendant's arm and defendant pulled his arm away. Finally, Winfred Alexander Williams, who was at the bar when the altercation occurred, testified as follows: "They spoke to him for a while and it seems they were just asking questions. I couldn't see what was going on and it looked like one of the gentlemen grabbed his arm and he pulled away. Then I saw another officer jump on his back. . ."

LEGAL AND FACTUAL SUFFICIENCY

We review the legal sufficiency of the evidence in the light most favorable to the verdict and 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, 319 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We review the factual sufficiency of the evidence by considering all the evidence in a neutral light and only reversing when: (1) the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). "A reversal for factual insufficiency cannot occur when 'the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)).

A person commits the offense of interfering 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. Tex. Penal Code 38.15(a)(1) (Vernon 2003). The State had to allege and prove that defendant had the culpable mental state of criminal negligence. Tex. Penal Code 6.03 (Vernon 2003). In the information, the State alleged the defendant acted with criminal negligence by striking the officer with his hand. See Tex. Code of Crim. Proc. Ann. 21.15 (Vernon 1989). Therefore, in order to convict defendant of interference with the duties of a public servant, the jury had to find that defendant made physical contact with Officer Velazquez. According to the defendant, the evidence is legally and factually insufficient to establish that defendant struck the officer with his hand. Defendant argues there was testimony by defendant, Paula Meadows, and Winfred Alexander Williams that defendant only pulled his arm away. Defendant also argues Officer Jerrytone's testimony is insufficient to show actual contact. However, there was testimony at trial that supported the act alleged in the information, striking the officer with his hand. Both Officer Velazquez and Officer Jerrytone testified that defendant struck Officer Velazquez's hand.

We may not reevaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). It was the jury's responsibility to resolve any conflicts and to determine the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The trier of fact was free to accept or reject all or any portion of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). After viewing the evidence in the light most favorable to the verdict, we believe the jury could have found all the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Guevara, 152 S.W.3d at 49. Also, we find the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust or that the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. CONCLUSION

Accordingly, we overrule defendant's issues on appeal and affirm the trial court's judgment.

 

Sandee Bryan Marion, Justice

Do Not Publish

1. The Honorable Monica Guerrero is the presiding judge of County Court at Law No. 8, Bexar County, Texas. However, the Honorable Olin Strauss presided over the jury trial and signed the judgment that is at issue in this appeal.