Keith Shelton v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-04-00106-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEITH SHELTON, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Keith Shelton was convicted of aggravated assault on a public servant and was sentenced to sixty years of imprisonment. In one issue, Appellant contends that the evidence in support of his conviction was factually insufficient. We affirm.

Background

On July 28, 2003, Appellant was indicted for aggravated assault on a public servant; specifically, that on June 29, 2002, Appellant

intentionally, knowingly, and recklessly seriously cause[d] bodily injury to JAYSON N. CROWSON, by KICKING HIM and the DEFENDANT did then and there know that the said JAYSON N. CROWSON was then and there a public servant, to-wit: a correctional officer employed by the Texas Department of Criminal Justice, institutional division, and that the said JAYSON N. CROWSON was then and there lawfully discharging an official duty, to-wit: MAINTAINING ORDER AND SECURITY. . . . //

Following a not guilty plea, Appellant s case went to trial. On June 29, 2002, Crowson said he was supervising inmates taking showers as part of his duties as a sergeant at the Eastham Unit of the Texas Department of Criminal Justice-Institutional Division ( TDCJ-ID ). Appellant was one of those inmates being supervised by Crowson. Crowson stated that he was wearing the uniform of a prison officer and that he did not know Appellant before June 29. According to Crowson, Appellant was in the shower area yelling and being loud. Inmates are not allowed to be loud and cause disturbances while in the showers, so Crowson told Appellant to exit the shower. Crowson placed Appellant in the hallway across from the showers in order to let him calm down. Appellant continued his abnormal behavior, so Crowson reached down to grab Appellant s hand and place handcuffs on him. When he reached down, Appellant turned and kicked him in his left leg, and both Crowson and Appellant went to the floor, with Appellant on top of Crowson.

Crowson stated that when Appellant kicked him, his left leg hurt very badly. After he was able to get out from underneath Appellant, other officers arrived to assist him. His leg then became very tender and was abnormal shaped. Crowson believed that his leg was broken. He was then taken by ambulance to Crockett, where doctors diagnosed him as suffering from a broken tibia. The doctors had to place Crowson under general anesthesia in order to set the break. The doctors first put a full leg cast on his broken leg for eight weeks and then a fiberglass walking cast that came up a little above the knee. Crowson missed four to five months of work because of the injury. He stated that he continues to have problems with his leg after physical activity because his ankle swells. Benjamin Jeffries, an officer at TDCJ-ID, testified that he saw Appellant kick Crowson with his right foot and strike Crowson in the lower portion of his left leg, thus causing Crowson to fall. Jeffries saw that as Crowson fell, he grabbed Appellant and pulled Appellant down on top of him. He stated that several other officers ran to help Crowson and restrained Appellant. Jeffries told Crowson to stand up, but Crowson responded, Well, he got my leg. It hurts. I think he broke it.

Jim Garvin, an officer at TDCJ-ID, stated that Appellant was being loud and obnoxious, and he saw Crowson tell Appellant to stand and face the wall in order to be handcuffed. When Crowson began putting the handcuffs on him, he saw Appellant yank away, turn sideways, and kick Crowson in the lower left leg. He saw Crowson fall to the floor and drag Appellant on top of him.

The State rested, and Appellant testified on his own behalf. Appellant stated that he did not kick Crowson and that Crowson, the nurse, and the surgeon were all lying about Crowson s leg being broken. Appellant further asserted that Crowson might have broken his own leg in order to keep from being sued over the incident.

At the conclusion of the trial, the jury found Appellant guilty of the offense as charged in the indictment and sentenced him to sixty years of imprisonment. Appellant now challenges the finding of guilt in one issue.

Factual Sufficiency of the Evidence //

In Appellant s sole issue on appeal, he contends that the evidence adduced at trial was factually insufficient to support the jury s verdict.

Standard of Review

There is only one question to be answered in a factual-sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id.

Analysis

A person commits the offense of aggravated assault if the person intentionally, knowingly, or recklessly causes serious bodily injury to another. Tex. Pen. Code Ann. 22.02(a)(1) (Vernon Supp. 2004-05). An aggravated assault is a second degree felony; however, the offense becomes a first degree felony if the offense is committed 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(b)(2) (Vernon Supp. 2004-05). Serious bodily injury is defined as bodily injury that creates a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. 1.07(a)(46) (Vernon Supp. 2004-05). The appellate court must evaluate each case on its facts to determine whether the injury was such as to allow a fact finder to determine that it met the definition of "serious bodily injury." Moore v. State, 739 S.W.2d 347, 349 (Tex. Crim. App. 1987).

Analysis

Appellant contends that the evidence of the causation of Appellant s injuries was factually insufficient. Specifically, he contends that the kick alone did not cause Crowson s broken leg and that he must have broken it when he fell after being kicked. A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Pen. Code Ann. 6.04(a) (Vernon 2004-05). A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that 1) a different offense was committed or 2) a different person or property was injured, harmed, or otherwise affected. Tex. Pen. Code Ann. 6.04(b) (Vernon 2004-05).

In the instant case, Crowson, Jeffries, and Garvin testified that they saw Appellant kick Crowson and that the kick caused Crowson to fall. Whether the fall or Appellant s foot caused Crowson s leg to break is immaterial because but for Appellant s conduct, Crowson s leg would not have broken. Crowson also testified that his injury forced him to miss work for four to five months and that he still had substantial impairment from the injury. // The only evidence in contrast is Appellant s own testimony that he did not kick Crowson. The determination of witness credibility is the province of the jury. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Therefore, the jury could disbelieve Appellant s version of the incident. Consequently, we hold that the evidence was factually sufficient to support the finding of Appellant s guilt of the elements of aggravated assault on a public servant beyond a reasonable doubt. Appellant s sole issue is overruled.

Conclusion

The evidence adduced at trial was factually sufficient to support Appellant s conviction for the offense of aggravated assault on a public servant. Accordingly, the judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered September 7, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)