BILLY JOE NOLEN v. THE STATE OF TEXAS--Appeal from 25th District Court of Lavaca County

NUMBER 13-06-099-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

BILLY JOE NOLEN, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court

of Lavaca County, Texas

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Ya ez and Vela
Memorandum Opinion by Justice Vela

A jury convicted appellant, Billy Joe Nolen, of aggravated assault against a public servant. Following the jury's recommendation, the trial court placed him on five years' community supervision. By two points of error, he complains the trial court erred in denying his motion for new trial. We affirm.

I. Facts

G.T. Oil Field hired Clyde Kazmir, a construction-firm owner, to prepare a drilling site on appellant's property. When Kazmir's bulldozer operator finished the job, he left the dozer and a truck on the property. About two days later, the operator returned for the equipment but discovered the gate to the property was locked. When Kazmir told appellant he was coming to get his equipment, appellant told him the job was done wrong and that the operator had knocked down a tree. Appellant also told him, "'You come on. I want to met [sic] you. I haven't had this much fun since I quit watching TV.'" Kazmir perceived this latter statement as a threat and reported the problem to the Lavaca County Sheriff's Department.

On October 11, 2004, Deputy Michael Mills was dispatched to the scene. Kazmir testified that when he and Mills arrived at the scene, a pickup was sitting in the road and a Jeep was backed up to the gate. Appellant had a pistol strapped to his side and was standing by the pickup. Mills parked about 100 feet from appellant, got out of his vehicle, and told appellant three times to put his gun up. Appellant ignored the commands, pulled a rifle from the Jeep, and pointed it at Mills in a threatening manner. At that point, Kazmir left and called for backup.

Deputy Mills's testimony indicated that at the time in question, he was a certified, licensed peace officer, working for the Lavaca County Sheriff's Department. He was in full uniform and on patrol in a fully marked patrol unit. He received a call from the sheriff's department requesting him to contact Kazmir. Kazmir told Mills he needed to pick up his bulldozer and that he was concerned for his safety. They drove to appellant's property, arriving about 11:00 a.m. Mills approached appellant and told him, "Mr. Nolen, sheriff's department, I need to speak to you. . . ." Appellant pulled up his jacket, revealing a gun and holster. Mills advised him three or four times to put the weapon up. Appellant refused and went to his truck. Mills testified about what happened next: "[I] told Kazmir that he [Kazmir] needed to go back down the road and as I turned back around to face him [appellant] . . . he was drawing down on me with a rifle. I recognized a 30-30, I believe it was. He was looking down at me through the barrel, right down the sites eye-to-eye, we were looking at each other." Mills testified he was close enough to appellant to see the whole weapon, and he thought he was going to get shot. Mills backed up and took cover. Eventually appellant turned himself in. Mills's testimony indicated that when he worked for the Lavaca County Sheriff's Department, his duties included assisting citizens when they called for either backup or assistance.

The defense showed that prior to the time Mills and Kazmir arrived at the scene, appellant's cousin, William Horton, was there in his pickup, talking to appellant. Minutes into their conversation, Horton saw a sheriff's car heading towards them. Its lights were flashing, and there was another vehicle about 100 yards behind it. Horton saw a uniformed police officer (Deputy Mills) get out of the sheriff's car and take cover behind the door. He said that Mills repeatedly ordered appellant to throw his gun on the ground. Because Horton was watching Mills, he did not see appellant point the rifle at him. However, Horton heard Mills yelling, "'He's aiming that rifle at me.'" He opined that Mills was not in any danger during the confrontation.

Appellant testified that when he and Horton were talking at the scene, he saw a police car coming towards him. Appellant said that Mills stopped about ten yards from him. He saw Mills jump out of the car and take cover. He heard Mills's order to throw down his gun. Appellant walked to his vehicle and took out the rifle in order to put it on the ground where Mills could see it. He denied pointing a gun at Mills. However, he did admit to looking through the rifle's scope and seeing Mills. But he also said that Mills was not under the cross hairs.

II. Legal Sufficiency

By point one, appellant complains the trial court erred as a matter of law in denying his motion for new trial because the evidence was insufficient to show the alleged victim was lawfully discharging an official duty. In assessing the legal sufficiency of the evidence to support a conviction, we consider all of the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ladd v. State, 3 S.W.3d 556, 557 (Tex. Crim. App. 1999).

The charge instructed the jury that "A person commits the offense of Aggravated Assault Against Public Servant, if he commits the offense of Aggravated Assault as hereinafter defined, 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." The charge also stated that "'Public Servant' includes a sheriff's deputy of any county in this state."

The charge did not define the term "official duty." However, in Hall v. State, 158 S.W.3d 470 (Tex. Crim. App. 2005), the court stated:

[W]e have repeatedly stated that "as long as the officer was acting within his capacity as a peace officer, he was acting within the lawful discharge of his official duties." In particular, we have looked at the details of the encounter, such as whether the police officer was in uniform, on duty, and whether he was on regular patrol at the time of the assault. . . . [T]he "lawful discharge" of official duties in this context means that the public servant is not criminally or tortiously abusing his office as a public servant by acts of, for example, "official oppression" or "violations of the civil rights of a person in custody" or the use of unlawful, unjustified force. . . .

 

Id. at 474-75 (footnotes omitted).

Here, the evidence showed that at the time in question, Deputy Mills was a licensed, certified peace officer and that he was in uniform, on duty, and on patrol in a marked sheriff's vehicle. He arrived at the scene during the daytime, making his identify as a peace officer obvious to appellant. Further, when he approached appellant, he announced that he was from the sheriff's department and that he needed to talk to him. Moreover, Mills's duties as a deputy sheriff included helping citizens when they needed either backup or assistance. In this case, Mills was there to help Kazmir retrieve a bulldozer and truck, because Kazmir felt threatened by appellant. There is nothing to show that Mills was either criminally or tortiously abusing his office as a public servant by either engaging in or attempting to engage in official oppression, violations of the civil rights of a person in custody, or the use of unlawful, unjustified force. See Hall, 158 S.W.3d at 475.

Viewing the evidence in the light most favorable to the verdict, we believe a rational trier of fact could have found beyond a reasonable doubt that Deputy Mills was acting within his capacity as a peace officer and that he was acting within the lawful discharge of his official duties. A trial court's ruling denying a defendant's motion for new trial is reviewed on an abuse-of-discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We, therefore, hold that the trial court did not abuse its discretion in denying appellant's motion for a new trial based upon legally insufficient evidence. We overrule point one.

III. Factual Sufficiency

By point two, appellant complains the trial court erred as a matter of law in denying his motion for new trial because any evidence that the alleged victim was lawfully discharging an official duty is so weak that it is clearly wrong and manifestly unjust. In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). Due deference must be given to the jury's determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). This court has authority to disagree with the fact-finder's determination "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id.

Appellant argues that Deputy Mills committed attempted official oppression the moment he demanded appellant return the bulldozer, without first obtaining judicial authority in the form of a court order. As authority, he cites section 39.03(a)(1) of the Texas Penal Code, which states: "A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful. . . ." Tex. Pen. Code Ann. 39.03(a)(1) (Vernon 2003). There is no evidence to show that Deputy Mills either committed or attempted to commit official oppression when he accompanied Kazmir to retrieve the bulldozer and truck. Accordingly, there is no showing that the evidence supporting the verdict, particularly that which shows Deputy Mills was acting within the lawful discharge of his official duties, is so weak that the verdict is clearly wrong and manifestly unjust or that the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. We find the evidence is factually sufficient to establish that Deputy Mills was acting within the lawful discharge of his official duties. We, therefore, hold the trial court did not abuse its discretion in denying appellant's motion for a new trial based upon factually insufficient evidence. We overrule point two.

 

The trial court's judgment is affirmed.

___________________

ROSE VELA

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this 1st day of February, 2007.