SABIN TRENT WRIGHT v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Cameron County

NUMBER 13-06-269-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

SABIN TRENT WRIGHT, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 2
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Ya ez

A jury found appellant, Sabin Trent Wright, guilty of resisting arrest. (1) The trial court assessed punishment at one year confinement and a $500.00 fine, suspended the sentence, and placed appellant on community supervision for fourteen months. In three issues, appellant contends: (1) the trial court erred in refusing to submit jury instructions on the defensive issues of justification, (2) greater force than necessary, (3) and necessity; (4) (2) the trial court erred in admitting evidence of a prior arrest; and (3) the evidence is legally insufficient to support his conviction. We affirm.

I. Background

Paul Campbell, Chief of Police for the City of Palm Valley, testified that he observed appellant's pickup "peeling out" of a convenience store parking lot and speeding through a residential neighborhood. Officer Campbell activated his emergency lights and followed the truck to appellant's house. According to the officer, appellant "bailed out," leaving the truck door open, and ran toward his front door, ignoring the officer's instructions to stop. When Officer Campbell confronted appellant at the door, he smelled a strong odor of alcohol on appellant's breath. According to the officer, appellant was "very hostile, very belligerent," refused to answer any questions, and kept shouting obscenities and threats. Officer Campbell attempted to utilize an "escort position" to escort appellant to the police vehicle, but appellant kept pulling away. The officer then used a "take down technique" to restrain appellant. A second officer, Officer Ed Hayward, arrived and assisted in restraining and handcuffing appellant. Officer Campbell testified that even after he was handcuffed, appellant continued to try to get away, kicking, cursing, and threatening the officers. Officer Campbell testified that appellant refused to take a breathalyzer test.

Appellant testified that he did not ever see the overhead lights on Officer Campbell's vehicle. According to appellant, he was standing by his door, with his hands up in the air, when Officers Campbell and Hayward "tackled" him. He denied that he resisted the officers. Appellant testified that he requested a breathalyzer test and a blood test, but was given neither. Appellant denied that he was speeding and that he tried to assault the officers.

II. Charge Error
A. Standard of Review and Applicable Law

Our first duty in analyzing a jury charge issue is to determine whether error exists. (5)Then, if we find error, we analyze that error for harm. (6) Properly preserved charge error requires reversal if the error was "calculated to injure the rights of [the] defendant," which means no more than that there must be some harm to the accused from the error. (7) In other words, a properly preserved error will call for reversal as long as the error is not harmless. (8) In making this determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." (9)

It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. (10) If the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. (11)

All statutory affirmative defenses "justify the defendant's admitted participation in the act itself." (12) Chapter nine of the penal code is entitled, "Justification Excluding Criminal Responsibility," and includes a list of conduct that the legislature has determined to be defenses to prosecution. (13) Necessity is a statutory defense that exonerates a person's otherwise illegal conduct. (14) The justification of necessity is unavailable to actors who do not admit the conduct that constitutes the charged offense. (15)

Self-defense is a justification defense under chapter nine of the penal code. (16) Self-defense is a justification for one's acts, which requires admission that the conduct occurred. (17) Generally, if a defendant denies all participation in an offense, his argument does not present evidence of a justification defense. (18)

The Texas Legislature has defined certain conduct, including protection of property under section 9.41 of the Texas Penal Code, to be "justified" in particular situations, notwithstanding penal laws to the contrary. (19) Section 9.41(a) provides that a person is justified in using force when and to the extent reasonably necessary to protect his property. (20) Failure to give an instruction on defense of property is not error where there was no evidence that appellant had a reasonable belief in the necessity of such force. (21)

B. Analysis

At trial, appellant denied that he (1) resisted arrest "at all," (2) attempted to evade any lawful request by Officer Campbell, or (3) attempted to assault either officer. Appellant testified that he "was peaceful until [he] was tackled and handcuffed and drug out into the street." Appellant admitted he was a "little bit" upset, but specifically denied "pushing and pulling away" from the officers. Appellant testified that when Officer Campbell grabbed his arms, he "just went with it." We conclude appellant denied the conduct constituting the charged offense (resisting arrest), and was therefore not entitled to a defensive instruction on either the defense of necessity or self-defense. (22) Similarly, we conclude there was no evidence in the record suggesting that appellant could reasonably believe that force was necessary to protect his home or himself. (23) Appellant denied the use of any force. We hold the trial court did not err in refusing to submit appellant's requested instructions. We overrule appellant's first issue.

III. Evidence of Prior Arrest

In his second issue, appellant complains the trial court erred in allowing the State to question him regarding a prior arrest for terroristic threat. The State argues appellant "opened the door" for such impeachment evidence by testifying that he had "never caused a problem" and "never had a problem out there before."

A. Standard of Review and Applicable Law

We review a trial court's evidentiary rulings under an abuse-of-discretion standard and will not disturb the trial court's ruling unless it falls outside the zone of reasonable disagreement. (24) If there is evidence supporting the trial court's decision to admit evidence, there is no abuse and the appellate court must defer to that decision. (25) Even when the trial judge gives the wrong reason for his decision, if the decision is correct on any theory of law applicable to the case, it will be sustained. (26)

As a general rule, specific acts of misconduct may not be introduced to impeach a party or witness. (27) However, if the testimony of a witness during direct examination "opens the door" or leaves a false impression with the jury as to the extent of the witness's prior arrests, convictions, charges, or trouble with the police, opposing counsel may introduce what would have otherwise been irrelevant evidence about the witness's past criminal history. (28) The applicability of this rule is not limited to final convictions. (29) It also applies, for example, when the witness purports to detail past convictions, but leaves an impression that there are no others. (30) Once the witness's response triggers the rule, opposing counsel may introduce what would otherwise have been irrelevant evidence about the witness's past criminal history. (31) The past criminal history becomes relevant, and thus admissible, because the witness has created a false impression about his past conduct which "opens the door" for the opponent to expose the false impression. (32) Considering the applicability of the false impression exception to the general prohibition against the introduction of extraneous offenses, we focus first on the defendant's answer in relation to the question asked, and whether or not it is responsive. (33) Second, we examine how broadly the question that is asked can be interpreted, focusing on the intonation of the question, and its relation to the major substantive issue in the trial. (34)

B. Analysis

On direct examination, appellant testified as follows:

Q [Appellant's counsel]: Now, when Chief Campbell asked you to come off of your property, did you believe that you had committed any crime?

 

A [Appellant]: No, I didn't believe I did at all.

 

Q: Were you trying to--what were you trying to do in your conversations with Chief Campbell?

 

A: From the tone of his voice, he was mad about something.

 

Q: Well, why would he be mad at you, Sabin?

 

A: I don't know. I've never caused a problem. I mean, I've lived out there--I've never had a problem out there before. I mean . . .

 

Q: Are--are--did the Chief ever--well, you've never talked to the Chief before, correct?

 

A: Huh-uh. No, sir. I'm sorry about that.

 

On cross-examination, the prosecutor approached the bench and argued that appellant's statement that he "never had a problem out there before" "opened the door" to evidence of appellant's prior arrests. Outside the presence of the jury, the State argued appellant's statement "opened the door" because he had been arrested repeatedly in the area. The State argued it should be allowed to admit evidence of appellant's prior arrests in Palm Valley and neighboring towns. The trial court ruled that the State could question appellant on any arrests in Palm Valley because appellant "opened the door to that," but denied the State's request to include arrests in any neighboring towns.

On cross-examination, the State asked appellant to explain his statement that he had "never had a problem out there." Appellant denied he had ever been arrested in Palm Valley. The State asked specifically if appellant had been arrested for the offense of terroristic threat. Appellant responded that he had received a letter from the district attorney's office that said he "need[ed] to come to court over it," but denied that he had been arrested. After appellant denied several times that he had been arrested in Palm Valley, the State requested a recess to obtain the documentation "for impeachment purposes." Appellant's counsel stated, "[w]e need to move on with this case, Judge." The trial court responded, "Overruled. Overruled. Let's finish it." No recess to "obtain the documentation" was granted. (35)

In examining appellant's response to the question he was asked, we are unable to determine whether the question referred only to the incident at issue or whether it referred more generally to whether Officer Campbell had other reasons to be "mad" at appellant. Appellant's response to the following question, that he had never talked to Officer Campbell before, could have led the jury to conclude that he had never been arrested in Palm Valley. After reviewing the record and the overall tenor of appellant's testimony, we conclude that the trial court could have found that appellant left a false impression with the jury. (36) We hold the trial court did not abuse its discretion in ruling that appellant had "opened the door" to the admission of impeachment evidence. (37) We overrule appellant's second issue.

IV. Sufficiency of the Evidence

In his third issue, appellant contends the evidence is legally insufficient to support his conviction. Specifically, appellant contends Officer Campbell's testimony that appellant was attempting to "pull away" is insufficient to establish that he was using force against the officer.

A. Standard of Review and Applicable Law

When reviewing the legal sufficiency of the evidence to support a conviction, we consider all 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. (38) This standard gives "full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." (39) In this review, we do not reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. (40)

Sufficiency of the evidence is measured against the elements of the offense as defined by the hypothetically correct jury charge. (41) Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. (42)

A person commits the offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest by using force against the peace officer. (43)

B. Analysis

Appellant argues that Officer Campbell's testimony establishes only that he was trying to "shake off" the officer's grip and "pull away" from him. He contends that Officer Hayward similarly testified that appellant was trying to "pull away" from the officers. Based on our review of the record, we disagree.

Officer Campbell testified that because appellant refused to cooperate, despite several warnings, he "didn't have any other choice but to arrest him." Officer Campbell testified that appellant was "just continually pulling away, using force to push and pull away from me." After Officer Campbell used a "take down" technique on appellant, appellant continued "thrashing left and right and trying to get away," "trying to swing at [the officers]." After the officers handcuffed appellant and got him to his feet, they tried to get him to the police car, but appellant continued "thrashing back and forth." Officer Campbell further described appellant's conduct:

[Officer Campbell]: All along the way to the police car--from about in front of the police car to the side where we wanted to put him, he was still pulling away from us, cussing at us, threatening to kill us and this sort of thing. Still pulling away, trying to get away, trying to kick at us. And we got him to the back of the police car, opened up the back right of the police car, he would not get into the police car.

 

Q [State]: Was he pushing?

 

A: Pushing, pulling, trying to kick, everything.

 

Officer Campbell's testimony that appellant "kicked at" the officers is sufficient to constitute the use of force required under penal code section 38.03(a). (44) Moreover, this Court has held that a defendant's open-handed push away from an officer is sufficient to show that the defendant resisted arrest by using force against the arresting officer. (45) We conclude that, when viewed in the light most favorable to the verdict, the above evidence is sufficient to support a conviction for resisting arrest. (46) We overrule appellant's third issue.

V. Conclusion

We affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

 

Memorandum opinion delivered and filed

this the 30th day of August, 2007.

1. See Tex. Penal Code Ann. 38.03(a) (Vernon 2003). Appellant was also charged with driving while intoxicated and evading arrest, but was acquitted on those charges.

2. Appellant cites section 9.41(a) of the Texas Penal Code, which provides:

 

A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

 

Tex. Penal Code Ann. 9.41(a) (Vernon 2003).

3. Section 9.31(c) of the Texas Penal Code defines self-defense in the context of resisting arrest:

 

(c) The use of force to resist an arrest or search is justified:

 

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

 

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

 

Tex. Penal Code Ann. 9.31(c) (Vernon 2003).

4. Section 9.22 of the Texas Penal Code defines the defense of necessity:

 

Conduct is justified if:

 

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

 

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

 

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

 

Tex. Penal Code Ann. 9.22 (Vernon 2003).

5. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)).

6. Id.; see Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998) (en banc).

7. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).

8. Almanza, 686 S.W.2d at 171.

9. Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).

10. Bowen v. State; 162 S.W.3d 226, 229 (Tex. Crim. App. 2005); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).

11. Granger, 3 S.W.3d at 38; Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

12. East v. State, 76 S.W.3d 736, 738 (Tex. App.-Waco 2002, no pet.) (quoting Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986), limited by Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990)).

13. Willis, 790 S.W.2d at 315 n.5 (citing Tex. Penal Code Ann. 9.02 (Vernon 2003) ("It is a defense to prosecution that the conduct in question is justified under this chapter.")).

14. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).

15. See Bowen, 162 S.W.3d at 230 (noting that appellant satisfied judicially imposed prerequisite to requesting a necessity instruction by admitting to commission of the offense); Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim. App. 2004); Young, 991 S.W.2d at 839 ("To raise necessity, Appellant must admit he committed the offense and then offer necessity as a justification."); Ford v. State, 112 S.W.3d 788, 793 (Tex. App.-Houston [14th Dist.] 2003, no pet.).

16. See Tex. Penal Code Ann. 9.31 (Vernon 2003).

17. Ford, 112 S.W.3d at 793; East, 76 S.W.3d at 738 ("To rely on 'self-defense,' the defendant must first admit committing the conduct which forms the basis of the indictment.").

18. We note that in certain circumstances, not applicable here, a defendant may be entitled to an instruction on justification without admitting the offense. See Golden v. State, 851 S.W.2d 291, 295 (Tex. Crim. App. 1993) (en banc); Willis, 790 S.W.2d at 314 (noting that a defendant may be entitled to a defensive instruction where he merely negates an element of an offense, but does not negate the entire offense); see also Hubbard v. State, 133 S.W.3d 797, 801-02 (Tex. App.-Texarkana 2004, pet. ref'd) (noting that a defendant may be entitled to a defensive instruction where he admits the conduct underlying the offense, but does not admit every statutory element of the offense); East, 76 S.W.3d at 738 (noting that court of criminal appeals has explained that "'admitting the conduct' does not always mean admitting the commission of every statutory element of the offense.").

19. See Tex. Penal Code Ann. 9.02 (Vernon 2003).

20. Tex. Penal Code Ann. 9.41(a) (Vernon 2003); see McDonald v. State, 761 S.W.2d 56, 60 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd).

21. McDonald,761 S.W.2d at 60.

22. See Ex parte Nailor, 149 S.W.3d at 133; Ford, 112 S.W.3d at 793; East, 76 S.W.3d at 738.

23. See McDonald,761 S.W.2d at 60.

24. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Mumphrey v. State, 155 S.W.3d 651, 660 (Tex. App.-Texarkana 2005, pet. ref'd) (citing Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996)).

25. Osbourn, 92 S.W.3d at 538.

26. Id.

27. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988).

28. See Delk v. State, 855 S.W.2d 700, 704-05 (Tex. Crim. App. 1993); Reyna v. State, 99 S.W.3d 344, 349 (Tex. App.-Fort Worth 2003, pet. ref'd).

29. Reyna, 99 S.W.3d at 349.

30. Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim. App. 1972).

31. See Delk, 855 S.W.2d at 704-05; Reyna, 99 S.W.3d at 349.

32. See Delk, 855 S.W.2d at 704.

33. See id. at 704.

34. See id.

35. In his brief, appellant also complains that "the State failed to introduce the arrest at all." We note that by urging the trial court to "move on with this case," appellant waived any complaint regarding the State's failure to obtain documentation of any arrest.

36. See Delk, 855 S.W.2d at 704.

37. See Osbourn, 92 S.W.3d at 537.

38. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

39. Jackson, 443 U.S. at 319.

40. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc); Ozuna v. State, 199 S.W.3d 601, 604 (Tex. App.-Corpus Christi 2006, no pet.).

41. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

42. See id.

43. See Tex. Penal Code Ann. 38.03(a) (Vernon 2003).

44. See Halliburton v. State, 80 S.W.3d 309, 313 (Tex. App.-Fort Worth 2002, no pet.) (holding that "kicking at" constitutes the use of force required for resisting arrest).

45. See Furch v. State, No. 13-01-815-CR, 2002 Tex. App. LEXIS 8804, at *5 (Tex. App.-Corpus Christi Dec. 12, 2002, no pet.) (mem. op., not designated for publication); Leos v. State, 880 S.W.2d 180, 182 (Tex. App.-Corpus Christi 1994, no pet.) (holding a forceful shove directed at officer sufficient use of force to support resisting arrest); Mayfield v. State, 758 S.W.2d 371, 373 (Tex. App.-Amarillo 1988, no pet.) (using elbows and shoulder to shove arresting officer out of moving car is sufficient force).

46. See Powell, 194 S.W.3d at 506.