Antonio Ascencio v. State of Texas--Appeal from 106th District Court of Dawson County

Opinion filed May 22, 2008

Opinion filed May 22, 2008

In The

Eleventh Court of Appeals

__________

 No. 11-06-00341-CR

_________

ANTONIO ASCENCIO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 02-5942

M E M O R A N D U M O P I N I O N

The jury convicted Antonio Ascencio of assault on a public servant. Ascencio=s conviction was enhanced for punishment purposes to a second degree felony, and he was sentenced to twenty years in prison by the trial court. We affirm.

I. Background Facts

 

Wanda Elaine Biggers worked for Medical Arts Hospital as an LVN. She was assigned to the Preston E. Smith High-Security Unit of the Texas Department of Justice-Institutional Division as a contract employee of the Texas Department of Criminal Justice. Nurse Biggers was provided with an employee badge and wore it and medical scrubs to work each day.

On February 1, 2001, she and Corrections Officer Ricky Strickland dispensed medications to inmates. When they reached Ascencio=s cell, Officer Strickland opened the bean slot. This is a slot cut into the cell door through which food trays are dispensed. Ascencio shared a cell with Henry Reed. Nurse Biggers placed Ascencio=s medication on the door and was grabbed from within the cell. A blanket had been thrown over the light in the cell, and it was dark inside. Nurse Biggers could not identify the arm that reached through the bean slot, but Officer Strickland identified Reed as the assailant. According to Officer Strickland, Ascencio was standing at the door beside Reed. Nurse Biggers struggled to free herself. While she struggled, an arm belonging to a different man came through and grabbed her breast. Officer Strickland attempted to free Nurse Biggers using his bean-slot tool. Ascencio fought him. One of the inmates said, AIf you want us to let go, then get rank.@ Officer Strickland left to make a call. When he returned and told the inmates that rank was coming, they released Nurse Biggers.

Nurse Biggers suffered a sprained shoulder, bruises, and swelling. She was off work for seven weeks and did not return to full-time work for an additional eight weeks. While she was off work, the prison=s medical lab received an order to draw Ascencio=s blood for analysis. Corrections officers brought Ascencio to the lab, and Nurse Director James Edward Horton prepared to take the sample.[1] Ascencio complained that his handcuffs were hurting his hands. Director Horton responded, AWell, you sure weren=t worried about Ms. Biggers=[s] wrist, were you?@ Ascencio replied, AI should have broken her f-----g arm.@

II. Issues on Appeal

Ascencio challenges his conviction with three issues. Ascencio contends that the evidence was legally and factually insufficient to establish that Nurse Biggers was a public servant, that the trial court abused its discretion by admitting testimony under Tex. R. Evid. 803(24), and that the evidence is legally and factually insufficient to support his conviction.

 

III. Analysis

A. Sufficiency of the Evidence that Nurse Biggers was a Public Servant.

Ascencio argues first that the evidence is legally and factually insufficient to establish that Nurse Biggers was a public servant. To sustain a conviction for assault on a public servant, the State must prove: (1) a person (2) intentionally, knowingly, or recklessly (3) caused bodily injury to a public servant (4) who was known by the actor to be a public servant (5) while the public servant was lawfully discharging an official duty. Tex. Penal Code Ann. ' 22.01(a), (b)(1) (Vernon Supp. 2007). The term Apublic servant@ is defined as Aa person elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government.@ Tex. Penal Code Ann. ' 1.07(41)(A) (Vernon Supp. 2007).

1. Standard of Review.

To determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 414-15.

2. The Evidence.

 

Health care personnel assigned to a prison can be public servants. See Buster v. State, 144 S.W.3d 71, 78-79 (Tex. App.CTyler 2004, no pet.). In Buster, the victim was employed by the University of Texas Medical Branch and was assigned to the Texas Department of Criminal Justice, Institutional Division, in the psychology department of the Eastham Unit. Id. at 74. The Tyler Court rejected similar factual and legal sufficiency challenges based upon evidence that the victim was interviewing the defendant in the psychiatric unit. Id. at 80-81.

The evidence in this case was much stronger. Tex. Penal Code Ann. ' 22.01(d) (Vernon Supp. 2007) creates a presumption that the accused knew the victim was a public servant if the victim was wearing a distinctive uniform or badge indicating the victim=s employment as a public servant. Nurse Biggers wore a badge and medical scrubs to work each day. Nurse Biggers was distributing medication, had done the same thing at Ascencio=s cell many times before, and was accompanied by a correctional officer. Moreover, she testified that she was a contract employee for TDCJ. The evidence is both legally and factually sufficient to establish that Nurse Biggers was a public servant. Issue one is overruled.

B. Testimony Admitted under Rule 803(24).

Ascencio next complains that the trial court erred by admitting Ascencio=s statement to Director Horton that he should have broken Nurse Biggers=s arm because there was insufficient corroborating circumstances indicating the trustworthiness of the statement. This issue was not preserved for review. The trial court conducted a hearing outside the presence of the jury to consider the admissibility of this statement. At the end of that hearing, Ascencio objected, contending that Director Horton=s testimony was inadmissible hearsay. Ascencio made a reference to the lack of voluntariness but did not complain about the lack of corroboration. Issue two, therefore, has been waived.

Even if this issue has been preserved, Ascencio has not shown error by the trial court. A trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Id.

 

The statement against interest hearsay exception applies to a statement that at the time of its making so far tended to subject the declarant to criminal liability that a reasonable person in the declarant=s position would not make it unless believing it to be true. Rule 803(24). In criminal cases, the statement must be corroborated by circumstances clearly indicating its trustworthiness. Id. Factors that a trial court may consider when considering the admissibility of a statement under this rule are the timing of the declaration, the spontaneity of the declaration, the relationship between the declarant and the party to whom the statement was made, and the existence of independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).

The record shows that Ascencio made his statement to a prison official in the presence of correctional officers, that he made the statement in direct response to an accusatory question by a prison official, and that Ascencio=s involvement in the incident was confirmed by Officer Strickland. This is sufficient corroboration to preclude a finding of abuse of discretion. The trial court did not err by admitting Ascencio=s statement, and issue two is overruled.

C. Sufficiency of the Evidence to Support Ascencio=s Conviction.

Ascencio argues that the evidence is legally and factually insufficient to support his conviction and points to Nurse Biggers=s testimony that she did not know who grabbed her. Ascencio also contends that Officer Strickland was unable to directly implicate him in any criminal conduct. Ascencio posits that the only evidence against him is his presence at the scene, and he argues that this alone is insufficient.

The State concedes that Ascencio=s conviction requires application of the law of parties doctrine. A party is criminally responsible as a party to an offense not only for their own actions but also for the conduct of another for which they are criminally responsible. Tex. Penal Code Ann. ' 7.01(a) (Vernon 2003). Evidence is sufficient to support a conviction under the law of parties when the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). In reviewing the sufficiency of the evidence, we look at events occurring before, during, and after the commission of the offense and rely on actions of the defendant which show an understanding and common design to do the prohibited act. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

 

The record establishes Ascencio=s complicity both before, during, and after the incident. Prior to Nurse Biggers and Officer Strickland=s arrival at Ascencio=s cell, the light was covered with a blanket so that people could not see inside the cell. Nurse Biggers could not identify the hand that grabbed her but did testify that the arm that grabbed her breast belonged to a different man. Officer Strickland testified that Ascencio was at the cell door next to Reed and that Ascencio fought with him when he tried to free Nurse Biggers. After the incident, Ascencio made an incriminating remark to a prison official.

Ascencio correctly points out that he was in a five by ten foot cell; therefore, his proximity to the scene must be viewed in context. The jury knew that proper procedure required the cell light to be on and the inmates to be in their bunks. The cell light was covered, and Ascencio and Reed were at the cell door. On direct examination, Officer Strickland testified that one inmate held Nurse Biggers and the other fought with him as he tried to free her. On cross-examination, he was less certain.

Q. But how can you be certain that it=s Ascencio and not just Reed using his other B his free hand?

A. It was B that=s all I can say. All I can say is Offender Ascencio was at the door, and somebody was pushing the bean bar to the side.

Q. Okay. Somebody was pushing the bean tool bar to the side?

A. Yes.

Q. Ascencio was at the door, but somebody, which sounds to me you=re not sure, because somebody could have been either Ascencio or Reed, correct?

A. Yes, sir.

Q. So you=re not certain that Ascencio was actually the person that did it. Just somebody inside the cell swatted at the bean tool bar, correct?

A. Yes, sir.

The State then asked Officer Strickland why he thought Ascencio was pushing the bean tool away, and Officer Strickland responded:

I just believe that it was him. I mean, I can=t swear right now that B I just believe it was him, because Reed, I believe, had his B he was having enough trouble with Ms. Biggers, because she was trying to fight too much to get loose. And it was being pushed to the left, you know, pushed to the side.

When asked why he believed Ascencio participated in the assault, Officer Strickland responded:

A. He was at the front of the door with the other offender.

Q. As opposed to what?

 

A. If he wasn=t going to be part of the assault, he could have said something earlier. He could have warned me or, you know, could have done a lot of things to prevent it, too.

When all the evidence is viewed in the light most favorable to the verdict, a rational juror could have found that Ascencio was guilty of assault beyond a reasonable doubt. There was evidence of prior planning, participation by both inmates, and a post-incident incriminating remark. When the evidence is viewed in a neutral light, it is factually sufficient. Officer Strickland equivocated on cross-examination when asked about Ascencio pushing away the bean-slot tool, but this does not make the State=s evidence so weak that the verdict is clearly wrong and manifestly unjust. The comparison of Officer Strickland=s testimony on direct and cross involves a credibility determination. We must defer to the jury=s decision on the weight to be given his testimony. Jackson, 443 U.S. at 318-19.

Even if we totally discount Officer Strickland=s testimony that Ascencio fought with him, each fact need not point directly and independently to Ascencio=s guilt as long as the cumulative force of all the incriminating circumstances is sufficient to support his conviction. Hooper, 214 S.W.3d at 13. A blanket was being used to cover the cell light, and both inmates were at the door rather than their bunks. Nurse Biggers implicated both inmates in her assault, and Ascencio made an incriminating remark after the incident. This is factually sufficient evidence. Issue three is overruled.

IV. Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

May 22, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

 

[1]Nurse Horton was Director of Nursing at the time of trial and was the Assistant Director of Nursing at the time of the incident.