Carlos L. Muse v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00049-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CARLOS L. MUSE, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant of the offense of aggravated assault on a public servant. Upon his plea of true to the enhancement allegation in the indictment, the jury assessed his punishment at confinement for twenty years. In his first two issues, Appellant challenges the legal and factual sufficiency of the evidence to show that he acted knowing that the complainant was lawfully discharging an official duty. In his third issue, he contends that since the court charged the jury that the actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating his employment as a public servant, the trial court reversibly erred in not also giving the charge on presumptions set out in Texas Penal Code subsection 2.05(2). We affirm.

Background

Tyler Police Sergeant Edgar Sheffield, while on patrol in a Tyler police car and while wearing his police uniform, attempted to stop a blue Pontiac that had passed him at a high rate of speed. The driver refused to stop, running two stop signs in an effort to evade arrest. The blue Pontiac stopped on Bellaire Street where both the driver and the passenger fled on foot. The driver was later identified as Appellant. Officer Sheffield pursued Appellant on foot for some five or six hundred feet calling on him to stop. Appellant did not stop, but doubled back to the blue Pontiac. While Sergeant Sheffield was attempting to prevent Appellant from driving off in the blue Pontiac, Appellant closed the car door on Sergeant Sheffield s arm causing injury. Appellant drove away, but was apprehended after a second car chase. Sergeant Sheffield s injury caused him pain, but did not require medical attention. Appellant s driver s license was suspended at the time of the incident.

Legal and Factual Sufficiency of the Evidence

In his first two issues, Appellant contends the evidence is both legally and factually insufficient to show that he knew that Sergeant Sheffield was lawfully discharging an official duty at the time of the assault.

Standard of Review

In reviewing a legal sufficiency challenge, an appellate court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all of the essential elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).

In conducting a factual sufficiency review, the reviewing court must review all the evidence in a neutral light, not in the light most favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The court of criminal appeals has recently more fully elaborated the factual sufficiency standard of review.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met, so that the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the element of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a- reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

Analysis

Appellant concedes that ordinarily the State need not prove that the person committing assault on a public servant knew at the time of the assault that the public servant was lawfully discharging an official duty. See Montoya v. State, 744 S.W.2d 15, 30 (Tex. Crim. App. 1987). Appellant argues, however, that a different rule applies here because the application paragraph of the jury charge incorporates language permitting the jury to convict Appellant only if they believed that at the time of the assault Appellant knew that Sergeant Sheffield was lawfully discharging an official duty, to wit: investigating criminal activity and detaining Appellant for evading arrest and detention. Therefore, Appellant argues, the State is held to the enhanced burden of proving not only that Appellant knew that Sergeant Sheffield was lawfully discharging an official duty, but also that he knew that Sheffield was attempting to detain him for evading arrest and detention at the time of the assault. The State, he contends, offered absolutely no evidence regarding his knowledge of why he was being arrested. Relying on Williams v. State, 833 S.W.2d 701, 704 (Tex. App. Houston [1st Dist.] 1992, pet. ref d), Appellant insists that when the State allows a charge to go before the jury with an increased burden, the State is held to the higher burden.

In our view, the charge did not require the State to prove that Appellant knew Sheffield was performing an official duty in attempting to detain him for investigation of criminal activity and evading arrest. But no error is shown even if we accept Appellant s interpretation. The line of cases relied upon by Appellant was expressly overruled by the court of criminal appeals in Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). The court held that the sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. Id. Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. at 240. Therefore, the sufficiency of the evidence is no longer measured by the application paragraph of the charge, but by the essential elements of the offense as contained in a hypothetically correct jury charge.

Texas Penal Code Subsection 22.01 provides, in pertinent part, as follows:

(a) A person commits an offense if the person:

(1) intentionally, knowingly or recklessly causes bodily injury to another, including the person s spouse;

. . . .

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

(1) 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. 2005). Therefore, the State had the burden to prove that (1) Appellant intentionally, knowingly, or recklessly caused bodily injury (2) to a person he knew was a public servant (3) while the public servant was lawfully discharging an official duty.

A hypothetically correct jury charge does not require proof that the defendant knew at the time of the assault that the public servant was lawfully discharging an official duty. Nor does it require proof of his knowledge of the nature of that duty. Appellant s first two issues are without merit and are overruled.

Charge Error

In his third issue, Appellant contends the trial court erred in failing to give the charge on presumptions set out in Texas Penal Code Subsection 2.05(2) as was required when the trial court charged the jury on the existence of a presumption contained in Texas Penal Code Subsection 22.01(d).

In paragraph two of the charge, the trial court instructed the jury that [a]n actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person s employment as a public servant. Subsection 2.05(2) provides, in pertinent part, that

if the existence of a presumed fact is submitted to the jury, the court shall charge the jury in terms of the presumption and the specific element to which it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Tex. Pen. Code Ann. 2.05(2) (Vernon Supp. 2005).

Appellant did not object to the omission of this instruction. An appellant who did not preserve charge error has the burden on appeal of showing the erroneous charge resulted in such egregious harm that he did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The reviewing court assesses the actual degree of harm in the light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel[,] and any other relevant information revealed by the record of the trial as a whole. Id.

Before the assault, Sergeant Sheffield pursued Appellant driving a fully marked Tyler Police Department vehicle, and then he pursued Appellant on foot yelling loudly that he was a police officer and ordering Appellant to stop. Throughout the chase and during the struggle at Appellant s car, Sergeant Sheffield was wearing a Tyler Police Department uniform. There was no evidence to contradict the presumption raised by Texas Penal Code Subsection 22.02(b). Although the trial court erred by not giving the required charge under Subsection 2.05 of the Penal Code, any resulting harm was not so egregious that it denied Appellant a fair and impartial trial. See Rudd v. State, 921 S.W.2d 370, 373 (Tex. App. Texarkana 1996, pet. ref d). Appellant s third issue is overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered May 26, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)