Mark Anthony Baxter v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-03-00042-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARK ANTHONY BAXTER, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant of aggravated assault against a public servant and assessed his punishment at imprisonment for fifty years. Appellant presents four issues attacking the legal and factual sufficiency of the evidence, and contending that the trial court erred in refusing to submit several lesser included offenses to the jury in its charge, and in failing to give the required charge on presumptions mandated by Texas Penal Code Section 2.05(2). We affirm.

Background

Tyler police officers Damon Swan ( Swan ) and Matthew Leigeber ( Leigeber ) answered a loud noise and possible drug activity complaint in the 1400 block of West Fourth Street in Tyler. They parked their cars around the corner from Fourth Street and approached a group of about six people gathered around a vehicle parked in a driveway on Fourth Street with its lights on and its engine running. As they approached, the car s driver raced the engine, backed quickly out of the driveway, and sped away from the officers. Leigeber was walking toward the disturbance through the yards while Swan walked near the cars parked in the street. Someone yelled, Police, whereupon most of the crowd ran onto the porch and into the house. The same car that had just so hastily departed returned, engine racing and tires squealing, and screeched to a stop near the driveway where it had been parked earlier. Leigeber approached the front passenger window of the vehicle while Swan stood in the road illuminated by the car s headlights. Both officers were dressed in standard Tyler police uniforms, and carried flashlights which they kept focused on the driver, Appellant. Leigeber identified himself to Appellant and asked him to turn off the engine. Appellant responded something to the effect of, Hey, police, why don t you shut the car off for me. Leigeber bent over, looked inside the passenger side window, and told Appellant to show his hands because Leigeber could not see Appellant s left hand. Appellant looked quickly at Leigeber and then through the windshield at Swan. He then drove directly at Swan who was fifteen or twenty feet away. As the car came toward him, Swan dove aside and vaulted off the right side of the vehicle. When the car accelerated, Leigeber with a drawn revolver had jumped halfway through the passenger window yelling at Appellant to stop. Leigeber s legs struck Swan knocking Leigeber out of the car window onto the pavement in the middle of the street. Leigeber rolled a couple of times, looked up, and saw Appellant s vehicle in the distance fleeing at a high rate of speed. Swan agreed with defense counsel that Appellant was driving recklessly that night. But Swan also stated that he believed that Appellant s actions in racing the engine and accelerating toward him were done knowingly and intentionally.

Appellant did not testify.

Legal and Factual Sufficiency

In his first and second issues, Appellant challenges the legal and factual sufficiency of the evidence.

Standard of Review

In reviewing a legal sufficiency challenge, the appellate court examines 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 offense beyond a reasonable doubt. Jackson v. Virginia, 407 U.S. 307, 315-16, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). In conducting a factual sufficiency review, the appellate court must sustain the verdict unless a neutral review of all the evidence, both for and against the challenged finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the factfinder s determination, or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Penal Code section 22.02 in pertinent part reads, as follows:

(a) A person commits an offense if the person commits an assault as defined in 22.01 and the person:

. . . .

(2) uses or exhibits a deadly weapon during the commission of the assault.

(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:

. . . .

(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.

Tex. Pen. Code Ann. 22.02(a), (b) (Vernon 2003).

Appellant argues that the evidence is legally and factually insufficient to prove that he knew Officer Swan was discharging an official duty at the time of the assault. Appellant concedes that ordinarily Texas law does not require the State to prove that the defendant knew that the peace officer was lawfully discharging an official duty. See Montoya v. State, 744 S.W.2d 15, 30 (Tex. Crim. App. 1987). However, he contends that if the court incorporates in its charge language placing the burden on the State to show that the defendant knew the officer was discharging an official duty, then the State is held to the higher burden. See Arceneaux v. State, 803 S.W.2d 267, 270-71 (Tex. Crim. App. 1990).

The charging paragraph reads, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 21st day of June, 2002, in Smith County, Texas, the Defendant, Mark Anthony Baxter, did then and there intentionally and knowingly threaten Damon Swan with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: an automobile, during the commission of the said assault, and the Defendant did then and there knew [sic] that the said Damon Swan was then and there a public servant, to-wit: a City of Tyler Texas Police Office, and that the said Damon Swan was then and there lawfully discharging an official duty, to-wit: investigating a disturbance and possible drug activity then you will find the Defendant guilty of Aggravated Assault on a Public Servant, as charged in the indictment. (Emphasis added).

The cases relied upon by Appellant, Arceneaux and its kindred, have been overruled by the court of criminal appeals in Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). Since Malik, evidentiary sufficiency is no longer measured against the application paragraph of the charge given, but by the elements of the offense as defined by the hypothetically correct jury charge for the case.

Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant was tried.

Malik, 953 S.W.2d at 240. As Appellant acknowledges, proof that the defendant knew the peace officer was lawfully discharging an official duty is not required. See Montoya, 744 S.W.2d at 30; see also Salazar v. State, 643 S.W.2d 953, 956 (Tex. Crim. App. 1983). Moreover, there is legally and factually sufficient evidence that Appellant knew the officers were performing an official function. They were both dressed in police uniforms. They were dispatched to the 1400 block of West Fourth Street to investigate a disturbance possibly involving drug activity. As they entered Fourth Street, they saw Appellant s car in the driveway surrounded by a noisy group. As the officers approached, Appellant backed out of the driveway and drove off while the other people in the front yard ran into the house. When Appellant returned, Officer Leigeber introduced himself in a routine nonthreatening manner. But when Appellant saw Officer Swan in front of his car approaching the driver s side, apparently to question him, he drove his car at Swan in an effort to escape. It is reasonable to infer from these circumstances that Appellant fled to avoid the officer s investigation of the disturbance and possible drug activity. Appellant s first two issues are without merit and are overruled.

Lesser Included Offenses

In his third issue, Appellant claims the trial court erred in refusing to submit in its charge the lesser included offenses of Class A and C misdemeanor assault, and terroristic threat.

Applicable Law

A defendant is entitled to a lesser included offense instruction if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. See Westbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001). The evidence must establish the lesser included offense as a rational alternative to the charged offense. Id. An offense is a lesser included offense if (1) it is established by the proof of the same or less than all the facts required to establish the commission of the charged offense, (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission, (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission, or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

A defendant is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant and whether it is strong, weak, unimpeached, or contradicted. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). The credibility of the evidence and whether it is controverted or conflicts with other evidence in the case may not be considered in determining whether the requested instruction should be given. Hobson v. State, 644 S.W.2d 473, 477 (Tex. Crim. App. 1983). There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. First, evidence may refute or negate other evidence establishing the greater offense. Second, a defendant may be shown to be guilty of the lesser offense if the evidence presented is subject to different interpretations. Richardson v. State, 832 S.W.2d 168, 171 (Tex. App. Waco 1992, pet. ref d).

Class A assault is a lesser included offense of aggravated assault committed against a public servant. See Tex. Pen. Code Ann. 22.01(a)(1) (Vernon 2003). Class A assault, however, must cause bodily injury to another. Id. Appellant was not charged with causing injury to Swan, and there is no evidence that Officer Swan suffered any injury in the assault. Since there was no proof that Appellant, if guilty, was only guilty of Class A misdemeanor assault, the trial court did not err in refusing to charge the jury on Class A assault.

In order to have found that Appellant committed Class C assault, the jury would have been required to find that Appellant intentionally or knowingly threatened Swan with imminent bodily injury without using or exhibiting his automobile, which the uncontradicted evidence shows was, in the manner of its use, a deadly weapon. See Tex. Pen. Code Ann. 22.01(c); 22.02(a)(1) (Vernon 2003). If Swan was intentionally or knowingly threatened at all, and there is no evidence that he was not, Appellant manifested the threat through his use of his car, by driving it straight toward Swan. In order to knowingly and intentionally threaten another with imminent bodily injury by using an automobile, the actor must necessarily use or intend to use the automobile as a deadly weapon. Given the uncontradicted evidence in this case, no rational jury could have found Appellant guilty of intentionally and knowingly threatening Swan with imminent bodily injury without also finding that the threat was expressed and communicated by Appellant s use of his vehicle. The trial court did not err in refusing an instruction for Class C misdemeanor assault.

Appellant s request for a Class B misdemeanor terroristic threat instruction suffers from the same infirmity. A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to place any person in fear of imminent bodily injury. Tex. Pen. Code Ann. 22.07(a)(2) (Vernon 2003). Appellant argues that it is not seriously contested that his actions placed Officer Swan in fear of imminent bodily injury; therefore, the charge should have been submitted. But in order to have found that Appellant, if guilty of anything, was guilty only of terroristic threat, the jury would have had to ignore the undisputed evidence that Appellant threatened a peace officer with a deadly weapon while the officer was performing an official duty. There is no evidence in this case supporting a finding of terroristic threat as a valid rational alternative to the charged offense of aggravated assault against a public servant. See Westbrook, 29 S.W.3d at 113. The court did not err in denying the instruction. Appellant s third issue is overruled.

Presumption Instruction

In his fourth and final issue, Appellant contends the trial court erred in failing to give the special charge under Penal Code section 2.05(2) after giving a Penal Code section 22.02(c) instruction on a presumed fact. The instruction given stated, The defendant is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person s employment as a public servant. See Tex. Pen. Code Ann. 22.02(c) (Vernon Supp. 2004).

If the trial court includes a section 22.02(c) instruction on a presumed fact, section 2.05(2) mandates that the trial court charge the jury

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

(Vernon 2003). The trial court erred in not including this mandatory instruction in the charge. See Anderson v. State, 11 S.W.3d 369, 373-74 (Tex. App. Houston [1st Dist.] 2000, pet. ref d); Rudd v. State, 921 S.W.2d 370, 372-73 (Tex. App. Texarkana 1996, pet. ref d).

Appellant raised no objection to this omission at trial. In the absence of objection to charge error, reversal is required only if the harm is so egregious that the defendant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The reviewing court is to determine harm in the light of the entire jury charge, the state of the evidence, including contested issues, the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Id.

In this case, both officers wore regular Tyler Police Department uniforms. Officer Leigeber was within five feet of Appellant and had already introduced himself as a policeman before the assault occurred. When Leigeber told Appellant to turn off the ignition, Appellant replied, Hey police, why don t you shut the car off for me. Officer Swan was fifteen or twenty feet in front of Appellant s car, illuminated by its headlights. As the officers approached the scene, Appellant hastily backed his car out of the driveway and drove away rapidly. Someone in the crowd that had been gathered around Appellant s car recognized the officers as policemen and yelled, Police, prompting the group to run out of the yard into the house.

Although the trial court erred in omitting to give the charge required by section 2.05 of the Penal Code, the harm to Appellant cannot be characterized as so egregious that it deprived him of a fair and impartial trial. There was an abundance of evidence before the jury supporting the presumption and absolutely no evidence contradicting it. Appellant s fourth issue is overruled.

Conclusion

Having overruled Appellant s first, second, third, and fourth issues, the judgment of the trial court is affirmed.

BILL BASS

Justice

Opinion delivered May 28, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)