Carlos Rodriguez v. The State of Texas--Appeal from 384th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CARLOS RODRIGUEZ, )

) No. 08-02-00481-CR

Appellant, )

) Appeal from the

v. )

) 384th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D05247)

)

O P I N I O N

This is an appeal of a jury conviction for aggravated assault on a public servant. The Appellant was sentenced to 65 years= imprisonment. Appellant brings three issues: (1) that the trial court erred by failing to charge the jury on a lesser offense of assault; (2) that the evidence was insufficient to support the conviction; and (3) that the trial court erred by failing to provide an instruction under Section 2.05 of the Texas Penal Code regarding presumptions. We affirm.

On the afternoon of September 21, 2001, Kellie Soria went shopping with her

thirteen-month-old daughter at the Wal-Mart store on Transmountain Road in Northeast El Paso. After she finished shopping, she returned to her car, a 2000 white Honda CRV. She loaded her purchases into the rear of the car and then started the car to turn on the air conditioner. She was strapping her daughter in the middle of the rear seat when Appellant and another man, Luis Moreno, walked up to her. Appellant asked if she had change for a five dollar bill. She said no, and turned away to continue strapping her daughter in the car seat. Then, one of the men said we are going to take your car and showed her that he had a handgun tucked in his waistband.

Appellant got in the driver=s seat and put the car in forward gear. As the car began to move forward, Mrs. Soria jumped into the back seat. She started choking and screaming at Appellant until he pulled the handgun and aimed it over his shoulder at Mrs. Soria and her daughter. She took her daughter in her arms and crouched down behind the front seat. Mrs. Soria was able to get her cell phone from her purse and when the car stopped, she jumped out. Mr. Moreno, who was running alongside the car, got in the car when it stopped. Mrs. Soria ran away from the car, yelling for help, as Appellant and Mr. Moreno drove off in the SUV. Mrs. Soria called 911 on her cell phone and waited for the police.

El Paso Police Department Patrolmen Snyder and Talavera were in a marked patrol car driving north on Dyer Street when they heard the radio broadcast about the armed robbery and the description of Mrs. Soria=s car. The officers decided to enter the Patriot freeway, U.S. 54 at the Dyer Street ramp going south. Soon, after getting on the freeway, they both saw a white Honda CRV weaving in and out of the southbound traffic behind them. The officers activated the patrol car=s emergency lights and began weaving back and forth, blocking the traffic behind them, and then slowed to a stop. The two officers got out of the car and started back towards the white CRV when it drove into the median past the officers and reentered the freeway in front of their patrol car. The officer quickly returned to their patrol car and began to pursue the CRV.

A short distance away, the CRV left the freeway at the Fred Wilson exit, crossed through Fred Wilson, and drove over the Sheridan Road overpass. They had to stop at the bottom of the overpass at the closed chain link gates going into Fort Bliss. The police were only seconds behind them. Appellant and Mr. Moreno both jumped out of the CRV and tried to run away. Mr. Moreno tried to climb over the chain link fence but got tangled in the barbed wire atop the fence and Officer Snyder caught up to him and drug him back down. Appellant started to run back up the overpass and then dove headfirst over the rail. Officer Talavera was able to grab Appellant=s right leg as Appellant was going over the rail, leaving Appellant hanging upside down, just off the ground and against the overpass wall. Officer Talavera told Appellant that he was under arrest and ordered him to pull himself back up. After struggling for a few moments, Appellant asked the officer to lend him a hand and extended his right hand toward the officer. The officer refused because he was suspicious and could not see Appellant=s left hand, which was behind his back. Suddenly, Appellant brought his left hand out holding a knife and pointed it at the officer. Officer Talavera, still holding Appellant=s leg, pulled back away, drew his handgun, and trained it on Appellant. Appellant dropped the knife but was then able to wiggle his leg loose from the officer=s grip. Appellant dropped to ground, got up, and started running. Officer Talavera followed but was unable to catchup to Appellant, but Appellant was intercepted and arrested a few minutes later by another police officer.

Issue One: Did the trial court err in refusing to instruct the jury on the lesser offense of assault?

We apply a traditional two prong test to determine whether Appellant was entitled to a charge on a lesser included offense. See Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998); Rousseau v. State, 855 S.W.2d 666, 672 73 (Tex.Crim.App. 1993)(en banc), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993); Heiringhoff v. State, 130 S.W.3d 117, 125-30 (Tex.App.--El Paso 2003, pet. ref=d). First, we determine whether the offense is a Alesser included offense@ as defined in Article 37.09 of the Texas Code of Criminal Procedure, which in most cases require deciding whether the Alesser included offense must be included within the proof necessary to establish the offense charged . . . .@ Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); see Tex.Code Crim.Proc.Ann. art. 37.09 (Vernon 1981); Ramirez v. State, 976 S.W.2d 219, 226 27 (Tex.App.--El Paso 1998, pet. ref=d). Second, the record must show some evidence that would permit a rational jury to find that if the defendant is guilty of an offense, he was guilty only of the lesser offense. Feldman v. State, 71 S.W.3d 738, 750 51 (Tex.Crim.App. 2002).

The State does not contest that assault is a lesser included offense of alleged aggravated assault which requires use of a deadly weapon. Therefore, the lesser included offense instruction was required if there is some evidence that Appellant did not exhibit a deadly weapon. It is, however, undisputed that Appellant pulled a knife from behind his back and pointed it at the officer. He simply cannot meet the second prong because any rational jury could find him guilty of aggravated assault. See Moreno v. State, 38 S.W.3d 774, 778 (Tex.App--Houston [14th Dist.] 2001, no pet.). Issue One is overruled.

In Issue Two, Appellant claims that the evidence is legally insufficient to support the conviction for aggravated assault. We understand his argument to be that because of the way Appellant was hanging upside down against the side of the overpass, it was possible that he merely pulled the knife to prevent cutting or stabbing himself, and not to threaten the officer.

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.BEl Paso 1997, no pet.). This familiar 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 to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. See Tex.Pen.Code Ann. ' 22.01(a)(2)(Vernon Supp. 2004-05). Aggravated assault occurs if the person commits an assault under Section 22.01 and the person uses or exhibits a deadly weapon during the assault. See Tex.Pen.Code Ann. ' 22.02(a)(2). Appellant concedes that he assaulted the officer but that he really did not threaten the officer with the knife. Officer Talavera testified that Appellant Apointed it at me.@ That evidence alone is sufficient to sustain the conviction for aggravated assault. Issue Two is overruled.

In Issue Three, Appellant complains that the trial court erred by failing to provide an instruction under Section 2.05 of the Texas Penal Code limiting the presumption provided by Section 22.02(c) that it is presumed that a defendant knows someone is a police officer if they are in uniform.

There was no objection made at trial to the omission of the instruction which the State concedes should have been given. Both sides recognize that because there was no objection that reversal is required only if the harm is so egregious that Appellant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984)(Opin. on reh=g).

We determine the degree of harm by assaying the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant evidence revealed by the record of the trial. See Arline v. State, 721 S.W.2d 348, 351-52 (Tex.Crim.App. 1986).

Appellant states that it is Aarguable that Appellant did not know that Talavera was a police officer;@ however, we can find nothing in the record that even remotely suggests this was an issue in the trial. The issue was never contested and trial counsel even conceded the issue during his argument to the jury.

Looking at the record facts: Officer Talavera was in full uniform and driving a marked patrol car; Appellant was driving the stolen car and sped by the stopped patrol car on Officer Talavera=s side and next to the officer who had gotten out of his car; Appellant was grabbed by Officer Talavera, who held Appellant by the leg over the side of the overpass; and Appellant argued and struggled with the officer and then asked the officer to lend him a hand to climb back onto the overpass. We find no merit to the contention that it was Aarguable@ that Appellant did not know that Officer Talavera was a uniformed policeman. There is overwhelming evidence to prove the facts giving rise to the presumption beyond a reasonable doubt. We find no harm and Appellant was not denied a fair and impartial trial by the omission of the Section 2.05 instruction. We overrule Issue Three.

The judgment of the trial court is affirmed.

August 26, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)