Melendez, Oswaldo v. The State of Texas--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

OSWALDO MELENDEZ, )

) No. 08-01-00487-CR

Appellant, )

) Appeal from the

v. )

) 120th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20000D03854)

)

O P I N I O N

This is an appeal of a jury conviction for the offense of aggravated assault on a public servant. The trial court sentenced Appellant to 30 years= imprisonment. Appellant=s sole issue on appeal is whether the trial court erred in denying Appellant=s request that the jury be instructed that it is against the law for a public servant to intentionally subject another to mistreatment and that one who does so is not in lawful discharge of an official duty. We affirm.

Appellant was an inmate in the El Paso County Detention Facility. He required medical treatment twice a day for his diabetes. On June 1, 2000, Appellant was escorted by detention officer Jesus Padilla to the medical clinic. After receiving his treatment and as they returned to Appellant=s third floor cell on the elevator, a fight between the two began. Appellant testified that the officer started the fight when the officer struck him in the face with a flashlight. The officer claimed that the Appellant started the fight by punching him in the face and slamming him to the floor.

When the elevator reached the 3rd floor, the officer was on the bottom and Appellant was on top punching the officer. Officer Padilla suffered severe multiple injuries to his nose, face, and left knee. Appellant had a gash on his forehead.

After hearing the evidence and the charge of the trial court, the jury found Appellant guilty of aggravate assault on a public servant.

The single issue before us is whether the trial court erred in denying Appellant a jury instruction that it is against the law for a public servant to intentionally subject another to mistreatment and that one who does so is not in lawful discharge of an official duty. When a defendant alleges a jury charge error, we must first determine whether there is any error in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986).

In this case, there was no error in the charge. Appellant requested an instruction that a public servant who intentionally mistreats another is in violation of the law and is not lawfully discharging an official duty. However, the charge included the lesser offenses of assault against a public servant and assault, and it also included an instruction on the self-defense theory. The Texas Penal Code does not list official oppression as a defense. Under Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App. 1998), any defensive theory not recognized or specifically labeled either a defense or an affirmative defense by the legislature does not warrant a separate instruction. Following Giesberg, Appellant in this case is not entitled to an instruction on official oppression. Id. at 250.

The Appellant sole issue is overruled and the judgment of the trial court is affirmed.

February 12, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)