Brent Gregory Moore v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-07-00075-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BRENT GREGORY MOORE, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Brent Gregory Moore appeals his conviction for aggravated assault on a public servant. In three issues, he argues that the evidence was legally and factually insufficient to support the conviction and that the trial court erred when it allowed a witness to assert a Fifth Amendment privilege and refuse to testify. The State did not file a brief. We affirm.

Background

Smith County sheriff s deputy Ron Rathbun was investigating a burglary. He was looking for Appellant when another witness told him where to find Appellant. Rathbun went to that location and found Appellant working on an automobile. Rathbun was a detective, and he was not in a traditional uniform or in a marked patrol car. According to his testimony, he identified himself as a sheriff s deputy and asked Appellant his name. When Appellant would not provide his name, Rathbun called for backup officers. Two deputies, who also were not in traditional uniforms or a marked patrol car, arrived, and the three of them attempted to arrest Appellant for the offense of failure to identify. Appellant fled from them and fought with the officers when he was apprehended.

A Smith County grand jury indicted Appellant for the felony offense of assault on a public servant, specifically, Ira Earls, one of the deputies who assisted Rathbun. A jury trial was held. During the trial, Appellant called two eyewitnesses to his interaction with the deputies. They testified that the men did not identify themselves as sheriff s deputies, that the deputies did not tell Appellant that he was under arrest, and that they did not see Appellant run from or assault the men. Appellant also called a third eyewitness, Tammy Frizzell. Frizzell was under indictment for the felony offense of driving while intoxicated with a child passenger, an offense alleged to have occurred before the incident involving Appellant. She refused to testify, invoking her right not to incriminate herself pursuant to the Fifth Amendment. Appellant objected, but the trial court refused to order her to testify. The witness freely answered questions when Appellant made an offer of proof of her testimony outside the presence of the jury. The jury convicted Appellant as charged and assessed punishment at six years of imprisonment. This appeal followed.

Sufficiency of the Evidence

In his first and second issues, Appellant argues that the evidence was insufficient to support the conviction. Specifically, he argues that there was no evidence, or insufficient evidence, to prove that he knew the victim of the assault was a public servant or that the victim was attempting to arrest him.

Standards of Review

The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App. Tyler 2006, pet. ref d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129 30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414 15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginiastandard. See Clewis, 922 S.W.2d at 134. We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury s role as the judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.

Analysis

The State was required to prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to Ira Earls, that Appellant knew that Earls was a public servant, and that Earls was discharging an official duty. See Tex. Penal Code Ann. 22.01(b)(1) (Vernon Supp. 2007).1 Appellant argues that there was no evidence that he knew Earls was a public servant or that he knew Earls was discharging an official duty, but does not dispute the evidence on the remaining elements.

We note that the State need not prove that Appellant knew Earls was lawfully discharging an official duty. Montoya v. State, 744 S.W.2d 15, 30 (Tex. Crim. App. 1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). The primary officer, Rathbun, testified that he told Appellant that he was a sheriff s deputy and that he showed him his wallet, which contained a badge and identification. Each of the three deputies had badges on their belts, and Rathbun wore a shirt with a badge embroidered on it. A photograph of Rathbun from the day of the incident was admitted into evidence. Rathbun and Earls testified that Rathbun told Appellant he was under arrest, whereupon Appellant began to flee. The two eyewitnesses testified differently. One testified that Rathbun was not wearing the shirt with the embroidered badge and that the deputies badges were not immediately visible. The other testified that Rathbun was wearing a different shirt and that the badges were not visible. The second witness, who saw more of the interaction, testified that the three officers simply walked up to Appellant and tackled him and that she did not hear anyone identify himself as a deputy or tell Appellant he was under arrest.

Rathbun s testimony establishes, for purposes of legal sufficiency, sufficient evidence for a rational jury to conclude that the State had proven the elements of the offense. He testified that he identified himself as a sheriff s deputy and that he told Appellant he was under arrest. He requested handcuffs from Earls in Appellant s presence. This is sufficient notice, under the circumstances, for Appellant to know that Earls was a sheriff s deputy even if he did not see Earls s badge.

With respect to the factual sufficiency of the evidence, the two versions of events can be reconciled by concluding that the eyewitnesses saw the interaction between Appellant and the sheriff s deputies only after Appellant had run from them. Both witnesses said they did not see him run and that their attention was drawn to the situation when all three officers were present. As such, their testimony does not necessarily conflict with Rathbun s testimony. The eyewitnesses may have simply missed Rathbun s telling Appellant he was a peace officer it is not clear they were close enough to hear it and missed his showing Appellant his identification. In that context, the evidence is not factually insufficient.

On the other hand, if we consider the evidence to show two sharply different sequences of events, one where the officer identifies himself and tells Appellant he is under arrest, and another where the three officers simply appear and immediately attempt to bring Appellant into custody, the choice as to which rendition of events is accurate is the kind of factual determination to be made by a jury. Under either view of the evidence, the jury s reconciliation of the evidence is reasonable. The evidence supporting the conviction is neither too weak to withstand scrutiny nor does the great weight and preponderance of the evidence contradict the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. We overrule Appellant s first and second issues.

Right Against Self Incrimination

In his third issue, Appellant argues that the trial court erred when it permitted a witness to refuse to testify after asserting her right not to incriminate herself pursuant to the Fifth Amendment to the United States Constitution.

Facts

  Tammy Frizzell observed the interaction between Appellant and the officers. She was under indictment for the felony offense of driving while intoxicated with a child passenger at the time of Appellant s trial. Frizzell was in jail at the time of trial, and the State suggested that she needed a lawyer. Appellant s counsel questioned why she would need counsel, arguing that her pending charge was not relevant and that she could not be impeached by it. The State argued that questions about the pending charge were relevant and argued, Judge, obviously, that would go to their [sic] motive or bias against testifying.

The trial court appointed counsel and asked the State what questions it intended to ask. The State said that it did not intend to get into the underlying facts of the offense, but just to ask if Frizzell was currently under indictment for that charge. Moments later the assistant district attorney said, Judge, I m only going to ask her if she s been charged, and that s it. The trial court ruled that it would allow the question on the basis that the pending indictment could show bias for [sic] testimony of a witness.

Frizzell s lawyer told the court that Frizzell intended to invoke her Fifth Amendment right not to testify. Although he did not voice an objection to any of the anticipated questions, her lawyer said that, in his experience, there was no way to limit cross examination once a person is on the witness stand. Appellant s counsel argued that Frizzell should not be permitted to invoke her right in the context of this case. The assistant district attorney again said that the only thing he was going to ask Frizzell was [a]re you currently under indictment and in the Smith County Jail for the offense of DWI with a child under the age of 16 years of age. The trial court said, That s what [the assistant district attorney] has stated his question is going to be, but [counsel] represents this witness and if she invokes her Fifth Amendment right to testify and [counsel] has stated what he believes to be the grounds for it, I m, of course, not going to force her to testify, if she s invoking her Fifth Amendment privilege.

Appellant s counsel told the court that he wished to make a bill of Frizzell s testimony. He then proceeded to ask Frizzell a series of questions about the incident involving his arrest. Frizzell did not assert a Fifth Amendment privilege not to answer any of the questions.

Analysis

At issue is a collision between Appellant s constitutional right to call witnesses and the witness s constitutional right against self incrimination. The Fifth Amendment of the United States Constitution provides in part that [n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . . It is well settled that an individual s constitutional privilege against self incrimination overrides a defendant s constitutional right to compulsory process of witnesses. See Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986). But it is error for a court to allow a witness to claim a privilege when no right to claim the privilege exists. See Franco v. State, 491 S.W.2d 890, 891 (Tex. Crim. App. 1973).

Generally, a witness who claims the Fifth Amendment privilege is not the exclusive judge of the right to exercise the privilege; rather, the trial court is entitled to determine whether the refusal to answer appears to be based upon the good faith of the witness and is justifiable under the circumstances. See Farmer v. State, 491 S.W.2d 133, 135 (Tex. Crim. App. 1973). Where it is clear that the testimony would not incriminate the witness, the trial court errs when it allows the witness to refuse to testify. See Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984) (A trial court cannot compel a witness to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken in asserting the privilege, and that the answer cannot possibly tend to incriminate the witness. . . . ).

The Supreme Court in Hoffman v. United States, 341 U.S. 479, 486 87, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951), held that to sustain the privilege it need only be evident in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. In appraising the claim, the trial court must be governed by [its] personal perceptions of the peculiarities of the case as by the facts actually in evidence. Id., 341 U.S. at 487, 71 S. Ct. at 818.2

In this case, the facts actually in evidence show that Frizzell s invocation of her right was spurious. Frizzell was not concerned that the questions Appellant wished to ask were incriminating; indeed she answered them for the bill without being granted immunity or being compelled to testify.3 And she voiced no objection to the State s intended question that she was the same person charged with the felony driving while intoxicated charge. Instead, even though no one suggested such questions would be asked, counsel s sole concern was that Frizzell could be asked about the details of the charge pending against her.

Such questions would implicate her right not to incriminate herself, but in the context of this case it is difficult to see why such a scenario would arise. Furthermore, we know of no reason that the trial court could not have ordered Frizzell to testify, but allowed her to reassert her privilege if questions that might incriminate her were asked. Counsel s perception of the trial court s powerlessness to limit the scope of cross examination is without a basis that we can determine, and the State has declined to supply us with any rationale for it.

A witness cannot refuse to answer a question that does not incriminate her just because she could assert the privilege in response to some other question. See, e.g.,Reese v. State, 877 S.W.2d 328, 337 (Tex. Crim. App. 1994) ( A witness may not withhold all of the evidence demanded of him merely because some of it may be protected from disclosure by the Fifth Amendment. ). Furthermore, the trial court certainly could have insisted that the State hold to its stated position that it only intended to ask if Frizzell had been charged with an offense.4 Because no party intended to ask Frizzell any questions that would tend to incriminate her, the trial court erred when it allowed her to assert her Fifth Amendment privilege not to testify.

Errors in evidentiary rulings that prevent a defendant from presenting evidence are nonconstitutional error unless they prevent a defendant from presenting his defense. See Walters v. State, No. PD-1952-06, 2007 Tex. Crim. App. LEXIS 1701, at *42 43 (Tex. Crim. App. Dec. 5, 2007). Appellant does not argue that there is constitutional error, and we must disregard nonconstitutional error if it does not affect the defendant s substantial rights. Tex. R. App. P. 44.2(b).

The court of criminal appeals has recently considered two cases involving the erroneous exclusion of evidence for the defense. The key to whether the defendant s substantial rights were affected was whether the erroneous ruling prevented the defendant from presenting evidence on a critical element of the offense. In Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005), the trial court erroneously excluded testimony of a witness who would have testified that he gave drugs to the driver of a car. Because the defendant testified to the same facts, the court held that the error was not constitutional error because she was able to present her defense. Id. at 836. But it was reversible error under the nonconstitutional error standard because the jury did not have the benefit of the third-party testimony upon the most critical element the State had the burden to prove. . . . Id. In Walters the court held that erroneously excluded evidence was nonconstitutional error because the same facts were established with other evidence, and it remanded the case to the court of appeals for harm analysis. Walters, 2007 Tex. Crim. App. LEXIS 1701, at *52 53.

This case is different from Ray because Frizzell s testimony would not have advanced the defense Appellant employed. Appellant s defense was that the officers did not identify themselves and did not inform Appellant that he was under arrest. Frizzell s testimony would not have advanced either of these evidentiary assertions. First of all, her testimony was consistent with the officers testimony, and conflicted with the other eyewitnesses as to Appellant s flight from the officers. She testified that the first officer approached Appellant and asked his name. In her written statement, which was admitted and which she admitted was true, Frizzell said that they talked for about fifteen minutes. In both her testimony and her written statement, Frizzell said that Appellant fled when the other officer brought out his handcuffs. She testified that she did not see the badges, but never said that she did not know that the men were officers and did not testify that Rathbun did not identify himself as a sheriff s deputy. In fact, in her written statement, she described Rathbun as an officer. She testified that she called 911 not because she thought a group of men were assaulting Appellant, but because she was concerned that the officers were beating Appellant while he was handcuffed. Frizzell was much closer to the incident than the other eyewitnesses, and she never had any apprehension, as they did, that the men were not sheriff s deputies and were simply assaulting Appellant.

As such, Frizzell s testimony did not advance the theory that Appellant did not know the officers were sheriff s deputies or that he had not been told he was under arrest. If anything, her statement, while not complimentary of the deputies actions, corroborated the time line testified to by Rathbun, and contradicted the other eyewitnesses statements that the deputies simply arrived and tackled Appellant. Therefore, the excluded testimony did not challenge or contest any critical element of the case. To the extent that Frizzell did not see the badges, her testimony that alludes to knowing the men were officers makes that distinction unimportant. She had the same vantage as did Appellant, and Frizzell knew Rathbun was an officer. Her testimony generally, and on that matter specifically, would have hurt Appellant s case, not advanced it. Therefore, we hold that Appellant suffered no harm because Frizzell s testimony did not advance his defense on a critical issue. We overrule Appellant s third issue.

Disposition

Having overruled Appellant s three issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 31, 2008.

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

(DO NOT PUBLISH)

1 Citing Arceneaux v. State, 803 S.W.2d 267, 270 71 (Tex. Crim. App. 1990) and Williams v. State, 833 S.W.2d 701, 704 (Tex. App. Houston [1st Dist] 1992, pet. ref d), Appellant argues that the State was also required to prove that he knew Earls was a sheriff s deputy and that he knew he was being arrested, because those additional facts were alleged in the indictment and recited in the jury charge. As we have noted before, this line of cases was overruled by Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997), and a proper analysis of the sufficiency of the evidence compares the evidence to a hypothetically correct jury charge based on the relevant statutory elements of the offense. See Thurman v. State, Nos. 12-05-00384-CR, 12-05-00385-CR, 2007 Tex. App. LEXIS 135, at *11 13 (Tex. App. Tyler 2007, no pet.) (mem. op., not designated for publication); Baxter v. State, No. 12-03-00042-CR, 2004 Tex. App. LEXIS 4861, at *5 7 (Tex. App. Tyler 2004, pet. ref d) (mem. op., not designated for publication).

2 Though the State does not argue it, there is a line of cases beginning with Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972), which holds that a trial court need not inquire further into the propriety of the invocation of the right not to testify when the witness is represented by counsel. See, e.g., Boler v. State, 177 S.W.3d 366, 371 (Tex. App. Houston [1st Dist.] 2005, pet. ref d); Suarez v. State, 31 S.W.3d 323, 329 (Tex. App. San Antonio 2000, no pet.); Castillo v. State, 901 S.W.2d 550, 553 (Tex. App. El Paso 1995, pet. ref d); Chennault v. State, 667 S.W.2d 299, 302 (Tex. App. Dallas 1984, pet. ref d).

We do not conclude that Ross stands for the proposition that a represented witness s assertion of the right can never be challenged. In fact, in both Farmer and Grayson, the witness was represented by counsel. Farmer, 491 S.W.2d at 135; Grayson v. State, 684 S.W.2d at 696. That fact was not considered in the court s analysis in either case. And in Reese v. State, 877 S.W.2d 328, 337 (Tex. Crim. App. 1994), the court of criminal appeals found that the invocation of the right not to testify was spurious despite a lower court ruling that cited Ross and held, in part, that the trial court was relieved of the obligation to make any further determination of whether the witness's claim of the Fifth Amendment privilege was valid because the witness was represented by counsel. Reese v. State, 846 S.W.2d 437, 441 (Tex. App. Houston [14th Dist.] 1992), rev d on other grounds, 877 S.W.2d 328 (Tex. Crim. App. 1994).

3 Answering questions in the context of a bill has been held to waive the privilege. See Franco, 491 S.W.2d 891 n.1 (Tex. Crim. App. 1973). However, Appellant did not make this argument at trial and does not advance it here. See Brown v. State, 500 S.W.2d 653, 655 (Tex. Crim. App. 1973) (Appellant may not claim for the first time on appeal that privilege is waived.).

4 In some instances, identifying oneself as the person charged in a case might be incriminating. Frizzell s counsel did not argue that the State s intended question was troublesome, just that the cross examination could spiral in unpredictable ways.