Rickey Glenn Whitehead v. The State of Texas--Appeal from 339th District Court of Harris County

Opinion issued February 8, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00352-CR

NO. 01-06-00353-CR

____________

RICKY GLENN WHITEHEAD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 716249 & 1028490

MEMORANDUM OPINION

In appellate cause number 01-06-00353-CR, (1) the trial court found appellant, Ricky Glenn Whitehead, guilty of the offense of assault on a public servant (2) and, after finding true the allegation in an enhancement paragraph that appellant had a prior felony conviction, assessed his punishment at confinement for ten years. In appellate cause number 01-06-00352-CR, (3) the trial court revoked appellant's community supervision from a previous conviction for the offense of assault on a public servant and assessed his punishment at confinement for ten years. The trial court further ordered that the two sentences run concurrently. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his convictions.

We affirm.

Factual Background

Harris County Constable Precinct 4 Sergeant S. Ener testified that on May 27, 2005, while he was on patrol, he saw appellant driving a car at seventy miles per hour ("mph") in a fifty mph zone. Ener activated the emergency lights and siren of his patrol car and, once behind appellant, noticed that appellant was weaving his car between the lines of the center lane. After appellant stopped his car, Ener approached appellant and asked him for his driver's license and proof of financial responsibility. Ener "detected a strong odor of an alcoholic beverage and [appellant's] speech was very slurred." Appellant told Ener that he had had "a couple" of drinks that night, agreed to submit to field sobriety testing, and stepped out of his car.

After administering field sobriety tests to appellant, Sergeant Ener advised him that he was under arrest for driving while intoxicated ("DWI"). Because appellant's wrist size was larger than standard handcuffs, Ener handcuffed appellant using leg irons. Ener explained that regular handcuffs generally have two to three links of chain between each handcuff, whereas leg irons have approximately two to three feet of chain between the cuffs in order to allow a person to walk. Although Ener handcuffed appellant behind his back using the leg irons, appellant was still able to move and use his arms. After Ener placed appellant in the back seat of the patrol car, appellant "was very agitated, very argumentative," and kept telling Ener that he "was ruining his life, that his wife had just left him, [and] that he was going to lose everything he had."

Ener also testified that, as he transported appellant to the Humble substation to process appellant for DWI, appellant "berated [Ener] for arresting him, telling [Ener] [that appellant] was going to make his son an orphan, that [Ener] should just let him go, other officers have, that he was just having a bad day, and numerous other things." Ener became concerned as appellant seemed more agitated and was making movements in the backseat of the patrol car.

Once at the substation, Ener sat appellant in a chair next to a supervisor's desk so that Ener could sign onto a computer and print out a booking sheet. As Ener was doing his paperwork, appellant jumped up and told Ener to hit him, stating, "I know you want to. Why don't you just shoot me? I know you want to." At this point, appellant was standing, and Ener stood up and forcibly put appellant back into the chair. Ener then radioed for help, explaining that appellant "was getting out of control." Appellant then got back up and moved toward Ener. Ener explained that appellant's hands came "just a little past" appellant's waist and that Ener felt as though appellant was trying to grab him or his weapon. Appellant lunged toward Ener, and Ener "put [appellant] face first down on the desk." In response, appellant became more agitated and "shoved back from the desk," "trying to stomp on [Ener], kick [him], and hit - head butt [him] with his head." Ener and appellant then went "backwards over into some fixed desks where [they] slammed into it, [Ener's] hand between [appellant] and the desk." Ener specifically testified that appellant pushed him "[w]ith his weight and his hands."

Ener further testified that, as they were struggling, Ener tried to trip appellant and the two fell backwards, with the back of Ener's hand against the desk and appellant's weight slamming against Ener's hand. During this time, appellant was kicking, head butting, and trying to bite Ener. While on the ground, with Ener "half underneath" appellant, Harris County Sheriff's Sergeant M. Alvarado began banging on the door. Ener told Alvarado the code to the door, and Alvarado entered the room. Ener explained that he had previously had two surgeries on his hand and that his hand was still in "a half cast." Despite the cast, Ener was still able to feel the impact in his hand. As a result of the present incident, Ener received a slight bruise on his hand.

Sergeant Alvarado testified that, as he was looking through the window, he saw Ener struggling with appellant and rolling around on the floor. Appellant was screaming, "[j]ust let me go." Once Alvarado came inside, he noticed that appellant "was a big guy" and warned appellant, "[i]f you don't stop resisting, I'm going to taser you." Ener was trying to hold appellant down, and appellant was trying to get, or roll on top of Ener. After Alvarado tasered appellant, the sergeants were able to subdue him.

Legal and Factual Sufficiency

In his first point of error, appellant argues that the evidence is legally insufficient "to prove he either intended to injure Sgt. Ener or that he knowingly caused bodily injury to him by pushing him with his hand" because "the evidence shows merely that [a]ppellant resisted Ener's efforts to force him face down into the desk; the fall that allegedly caused the hand injury was the product of Ener tripping [a]ppellant." Although appellant contends that "his claim is one of pure legal insufficiency" and "does not lend itself to being 're-characterized' as a variance problem," he asserts that "if the issue is viewed as one of variance," that "[t]his type of variance requires a new trial, at minimum." In response, the State argues that "[t]here was no variance between that which was alleged in the indictment and that which was proved at trial because the complainant testified that . . . appellant pushed the complainant with his weight and his hands, and that, as a result, the complainant's hand was slammed in between . . . appellant and one of the desks."

In his second point of error, appellant argues that the evidence is factually insufficient to support his conviction because (1) a videotape, admitted into evidence as State's exhibit 3, depicting appellant's arrest and transport to the substation, "does not portray a physically aggressive or combative individual" as described by Sergeant Ener in his testimony; (2) "[a]ppellant did not have the normal use of his physical and mental faculties, due to the introduction of alcohol into his body"; and (3) "[t]he fact that [a]ppellant's hands were shackled behind him while the complainant was forcing

him face down onto the desk makes it highly unlikely that [a]ppellant was able to use his hands as alleged in an intentional or knowing manner."

We review the legal sufficiency of the evidence by viewing 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact finder's. Watson, 204 S.W.3d at 414-15.

In regard to appellate cause number 01-06-00353-CR, a person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to another, and 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. 22.01(a)(1), (b)(1) (Vernon Supp. 2006). In relevant part, the indictment in the present case alleges that appellant,

. . . heretofore on or about May 27, 2005, did then and there unlawfully intentionally and knowingly cause bodily injury to S. Ener, hereinafter called the complainant, a person the defendant knew was a public servant while the complainant was lawfully discharging an official duty, to wit: processing the defendant for arrest, by pushing the complainant with his hand. Here, Ener testified that appellant was very agitated and that Ener was concerned about appellant's aggressive nature. Ener further testified that appellant was pushing him "[w]ith his weight and his hands," and as a result, Ener's hand was slammed between appellant and one of the desks. Ener also explained that despite appellant being handcuffed behind his back with the leg irons, appellant was still able to move and use his arms. Thus, there was no variance between what was alleged in the indictment and what was proved at trial. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) ("A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial."). Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction in appellate cause number 01-06-00353-CR.

Also, appellant's demeanor as demonstrated in the videotape and the fact that appellant was intoxicated at the time do not serve to prove that appellant did not intend to injure Ener or cause him bodily injury by pushing Ener with his hand. Even though appellant's hands were "shackled" behind him, Ener testified that there was approximately two to three feet of slack between the cuffs and that appellant was still able to move and use his arms. Viewing the evidence neutrally, we conclude that it is not so obviously weak such that the verdict seems "clearly wrong and manifestly unjust" or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction in appellate cause number 01-06-00353-CR.

We overrule appellant's two points of error in appellate cause number 01-06-00353-CR.

Revocation of Probation

In appellate cause number 01-06-00352-CR, appellant, in his brief,

submits that the legally and factually insufficient evidence produced during the consolidated proceeding was also insufficient to prove up this particular allegation in the motion to revoke probation. However, [a]ppellant does not challenge the sufficiency of the evidence offered to prove he committed the offense of driving while intoxicated on the same date, primarily based on his own admissions on the videotape . . . and Sgt. Ener's uncontroverted testimony, so whether or not the assault allegation was proved would not affect disposition of the motion to revoke probation.

If some evidence supports a trial court's finding of a single violation of community supervision, we uphold a revocation. See Brooks v. State, 153 S.W.3d 124, 127 (Tex. App.--Beaumont 2004, no pet.). As appellant concedes that the motion to revoke probation could be properly grounded on the evidence supporting a DWI offense, we overrule appellant's two points of error in appellate cause number 01-06-00352-CR.

Conclusion

We affirm the judgments of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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

1. Trial court cause number 1028490.

2. See Tex. Pen. Code Ann. 22.01(a)(1), (b)(1) (Vernon Supp. 2006).

3. Trial court cause number 716249.