Teevan, Scott Charles v. The State of Texas--Appeal from 411th District Court of Trinity County

Affirmed and Memorandum Opinion filed August 14, 2003

Affirmed and Memorandum Opinion filed August 14, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01051-CR

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SCOTT CHARLES TEEVAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 411th District Court

   Trinity County, Texas

Trial Court Cause No. 8503

 

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

Appellant, Scott Teevan, appeals from his conviction for the attempted capital murder of Trinity County Sheriff s Deputy Shane Turman. In a single issue, appellant contends the evidence was legally insufficient to show Turman was a peace officer, as alleged in the indictment. We apply the usual standard of review. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1.

A person commits the offense of capital murder if he murders a peace officer who is acting in the lawful discharge of an official duty and who the person knows is a peace officer. Tex. Penal Code 19.03(a)(1). A person commits criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Penal Code 15.01(a). The Penal Code defines peace officer as a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure. Id. 1.07(a)(36). Article 2.12 states that peace officers include sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license. Tex. Code. Crim. Proc. art. 2.12(1).[1] Both Turman and Trinity County Sheriff Brent Phillips testified (1) Turman was a reserve sheriff s deputy at the time of the incident, and (2) Turman was fully certified and licensed by the State of Texas as a peace officer. Appellant points to no evidence disputing this testimony.

Instead, appellant argues the evidence was legally insufficient to prove Turman had filed his oath of office and his bond with the Trinity County Clerk,[2] and thus it was insufficient to demonstrate Turman was a peace officer.[3] Appellant, however, cites no authority requiring proof of oath and bond as an element of attempted capital murder, nor does the indictment in this case require any such proof.

In Freeman v. State, the Court of Criminal Appeals upheld a conviction for capital murder of a peace officer, even though the record demonstrated the officer had not filed a notarized oath of office with the county clerk.[4] 556 S.W.2d 287, 303 04 (Tex. Crim. App. 1977). The court held the evidence was sufficient to demonstrate the victim was a de facto deputy sheriff and hence was a peace officer under the capital murder statute. Id. at 304.[5] In Williams v. State, the court affirmed a conviction for aggravated assault on a peace officer because the victim was shown to be a de facto deputy sheriff. 588 S.W.2d 593, 594 95 (Tex. Crim. App. 1979); see also McGowen v. State, 885 S.W.2d 285, 287 89 (Tex. App. Beaumont 1994, no pet.) (affirming convictions for escaping from a peace officer and for aggravated assault on a peace officer when officer shown to be de facto reserve deputy). The Williams court defined de facto officer as

one who has the reputation of being the [sic] officer, and yet is not a good officer in point of law; in other words, the de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, as to take the oath, give a bond, or the like.

588 S.W.2d at 595.

Here, the evidence demonstrated Turman was appointed as a reserve deputy sheriff. He was certified and licensed by the State as a peace officer in 1997, and he had served in that capacity for Trinity County and other law enforcement departments since that time. Additionally, at the time of the offense, Turman was driving a vehicle marked as a Trinity County Sheriff s Department vehicle, and was wearing a uniform with department insignia and a department badge. Accordingly, we find there was sufficient evidence to demonstrate Turman was a de facto peace officer at the time of the offense. Appellant s sole issue is overruled.

The trial court s judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed August 14, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The licensing requirements for peace officers are contained in Texas Occupations Code Chapter 1701.

[2] Before a reserve deputy can begin his duties he must file an oath and a bond with the county clerk. See Tex. Loc. Gov t Code 85.004(c).

[3] The Trinity County Clerk testified that a search of records revealed neither an oath nor a bond for Turman. However, the sheriff testified all deputies in the county were covered by a general bond.

[4] Freeman discussed the application of the predecessor statute to section 85.004(c) of the Local Government Code. See Tex. Rev. Civ. Stat. Art. 6869 (current version at Tex. Loc. Gov t Code 85.004(c)).

[5] The court noted the victim was appointed as a deputy sheriff, filed a bond, and had filed an unsworn oath.