Raymond Ray Poole, Jr. v. The State of Texas--Appeal from County Court at Law of Cherokee County

NO. 12-06-00290-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RAYMOND RAY POOLE, JR., APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Raymond Ray Poole, Jr. appeals his conviction for interference with public duties, for which he was sentenced to confinement for one hundred eighty days, probated for twelve months. In two issues, Appellant argues that the evidence was neither legally nor factually sufficient to support his conviction. We affirm.

Background

On May 23, 2005, officers of the Cherokee County Sheriff s Department went to the residence of Raymond Poole, Sr. to assist officers from the Alto Police Department in executing a felony search warrant. Thereafter, Appellant arrived at the scene. While at the scene, Appellant saw Alto Police Chief Charles Barron exiting his father s residence with some firearms seized pursuant to the search warrant. Appellant began moving toward Barron stating that Barron was not going to take Appellant s firearms. As Appellant moved toward Barron, Sheriff s Department Detective John Raffield interceded and arrested Appellant.

Appellant was charged by information with interference with public duties1 as follows:

[Appellant] did then and there, while John Raffield, a peace officer, was performing a duty or exercising authority imposed or granted by law, to-wit: executing a felony search warrant, with criminal negligence, interrupt, disrupt, impede, or interfere with the said John Raffield by not leaving the scene of a felony search warrant.

Appellant pleaded not guilty, and the matter proceeded to jury trial.

At trial, Raffield testified as the State s first witness. Raffield stated that he was at Raymond Poole, Sr. s residence performing duties and exercising authority granted by law in the execution of a felony search warrant. Specifically, Raffield stated that his duties that evening included securing the outer perimeter in support of the officers searching the residence. Raffield further stated that among his duties was preventing someone from pushing, shoving, or striking an officer who was executing the search warrant. Raffield elaborated on this duty as follows:

Once the warrant was obtained, the teams are depending on how many officers are available, there s specific assignments that each individual is given. There s an entry team, generally, for a search warrant. [There are] close perimeter individuals that are set up to, say, cover a back door or windows or other exits to a residence, and then there s [the] outer perimeter, and the outer perimeter individuals, which is what I was serving in the capacity of that night, is to if there s anybody that runs from the location where the search warrant is being executed, to be able to run and catch those individuals and to keep other people from entering into the location, once the officers have secured the residence or building, and for officer safety and integrity of any evidence that they may be trying to search at the time.

Raffield testified that he was stationed in front of the residence when his attention was drawn to a commotion that involved a lot of hollering and cussing between an individual later identified as Appellant and other officers. Raffield further testified that Appellant approached the residence and interacted with another person outside the residence for the stated purpose of obtaining a cigarette from the person. Raffield stated that Appellant began whispering to this individual, at which point Raffield instructed Appellant to continue on to one nearby residence or another, or leave the scene altogether. According to Raffield, Appellant exclaimed, F__k you, cuz. I ll go where I want. Raffield stated that shortly thereafter, Barron exited the residence carrying several firearms. Raffield testified that Appellant quickly and aggressively started moving toward Barron stating that Barron was not going to take his gun. Raffield further testified that as Appellant moved past him, since it appeared that he was going to either grab Barron or the rifles he was carrying, he took hold of Appellant, pulled him around, and leaned him up against the fender of a nearby car in order to keep him from approaching Barron further. Raffield stated that even after Appellant was placed under arrest and secured in a patrol vehicle, the officers had further work to do with regard to execution of the search warrant. Raffield further stated that his duties, as set forth previously, were interrupted, disrupted, impeded, or interfered with as a result of Appellant s actions and, further, that Appellant acted with criminal negligence.

Barron testified as the State s next witness. Barron stated that he was part of the team who executed a search warrant at Raymond Poole, Sr. s residence. Barron further stated that during the search of the residence, the team located and seized several firearms, which he subsequently carried out of the residence. Barron testified that as he exited the residence, he observed Appellant talking to Raffield. Barron further testified that Appellant, who was being loud and belligerent, turned and started coming toward him in an aggressive fashion, stating loudly that the firearms belonged to him and inquiring what was to become of them. Barron stated that as Appellant approached, Raffield stepped in between Appellant and Barron and stopped Appellant. Barron further stated that, in his opinion, Appellant s actions amounted to interference with public duties. Moreover, Barron testified that when he exited the residence, the execution of the search warrant was not entirely complete. Barron further testified that Appellant did not interfere with his conduct of the search of the residence because Raffield stopped him.

Following Barron s testimony, the State rested. Thereafter, Appellant moved for a directed verdict, which the trial court denied. Appellant then called Cornelius Thacker as his only witness. Thacker testified that he knew Appellant and arrived with him at Raymond Poole, Sr. s house on the day in question. Thacker stated that he did not see Appellant interfere with Raffield until he was spoken to. Thacker further stated that he did not ever see Appellant make a threatening move either toward Barron or Raffield. Thacker testified that he never saw Appellant do anything besides talk.

Following Thacker s testimony, Appellant rested. Ultimately, the jury found Appellant guilty as charged. Thereafter, a trial on punishment was conducted, whereupon the trial court sentenced Appellant to confinement for one hundred eighty days, probated for twelve months. This appeal followed.

Interference with Public Duties

In his first issue, Appellant argues that the evidence was legally and factually insufficient to support that he interrupted, disrupted, impeded, or interfered Raffield s duties.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41 42, 102 S. Ct. 2211, 2217 18, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include 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 is tried. Id.

To support a conviction for interference with public duties, the evidence must support that the accused with criminal negligence interrupted, disrupted, impeded, or otherwise interfered with a peace officer while the peace officer was performing a duty or exercising authority imposed or granted by law. See Tex. Penal Code Ann. 38.15(a)(1) (Vernon Supp. 2006). In the instant case, Appellant was charged with interference with public duties by not leaving the scene of a felony search warrant as Raffield had instructed him.

The case of Key v. State is instructive on the issue before us. In Key, the appellant was charged with interference with a public duty for refusing to obey lawful orders and directives of an officer who was performing a duty or exercising authority imposed or granted by law. SeeKey, 88 S.W.3d 672, 676 (Tex. App. Tyler 2002, pet. ref d). The evidence in that case reflected that officers were present when the appellant engaged in an altercation with his tenant. Id. Noting the appellant s anger, one of the officers instructed Appellant to stay on the sidewalk, which he believed was necessary to prevent the appellant from assaulting his tenant and preserve the safety of the officers. Id. The appellant stepped off the sidewalk and headed toward the tenant six times. Id. Each time, the officer stopped the appellant and directed him to get back on the sidewalk. Id. We held that the appellant engaged in conduct other than speech in refusing to obey the directives of the officer and that the evidence was, therefore, legally sufficient. Id.

The instant case is similar to Key. Raffield testified that he was stationed in front of the residence when his attention was drawn to a commotion that involved a lot of hollering and cussing between an individual later identified as Appellant and other officers. Raffield further testified that he instructed Appellant to continue on to one nearby residence or another, or leave the scene altogether. According to Raffield, Appellant exclaimed, F__k you, cuz. I ll go where I want. Raffield stated that shortly thereafter, Barron exited the residence carrying several firearms. Raffield testified that Appellant quickly and aggressively started moving toward Barron stating that Barron was not going to take his gun. Raffield further testified that since it appeared as Appellant moved past him that he was going to either grab Barron or the rifles he was carrying, he took hold of Appellant, pulled him around, and leaned him up against the fender of a nearby car in order to keep him from approaching further toward Barron.

Examining the aforementioned evidence in the light most favorable to the jury s verdict, we conclude, as we did in Key, that the jury could have determined beyond a reasonable doubt that Appellant, by his actions, interfered with Raffield s duties. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict that Appellant interfered with public duties as charged.

Factual Sufficiency

Turning to Appellant s contention that the evidence is not factually sufficient to support the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. SeeSantellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the

weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury s verdict).

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s first issue is overruled.

Criminal Negligence

In his second issue, Appellant argues that the evidence was neither legally nor factually sufficient to support that he acted with criminal negligence. In order to prove that Appellant committed the offense of interference with public duties, the State was required to prove that Appellant acted with criminal negligence. See Tex. Penal Code Ann. 38.15(a)(1). A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. 6.03(d) (Vernon 2003). Criminal negligence has been described as involving inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the result thereof, but fails to perceive the risk. See Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005). However, proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. Tex. Penal Code Ann. 6.02(e) (Vernon Supp. 2006).2

In the case at hand, Raffield testified that Appellant quickly and aggressively started moving toward Barron stating that Barron was not going to take his gun. Moments prior to this action, the record reflects that Appellant cursed at Raffield, ignoring Raffield s instructions, and stating that Appellant would go wherever he wanted. We conclude that there is legally sufficient evidence to support that Appellant acted with a higher degree of culpability than that with which he was charged. See, e.g., Tex. Penal Code Ann. 6.03(a), (b), (c) (Vernon 2003). Moreover, our review of the record as a whole has not revealed to us any evidence that causes us to conclude that this element is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is both legally and factually sufficient to support the jury s verdict that Appellant acted with the requisite culpability. Appellant s second issue is overruled.

Disposition

Having overruled Appellant s first and second issues, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered September 26, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Tex. Penal Code Ann. 38.15(a)(1) (Vernon Supp. 2006).

2 Our application of Section 6.02(e) in the instant case is distinguishable from our recent analysis in Wasylina v. State, No. 12-05-00263-CR, 2007 WL 677778 (Tex. App. Tyler Mar. 7, 2007, pet. filed) (op. on reh g). In Wasylina, the issue before us was whether an issue was properly submitted as a lesser included offense. Id., at *2. A charge on a lesser included offense should be given only when there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. See Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); compare Tex. Penal Code Ann. 19.04(a) (Vernon 2003) with Tex. Penal Code Ann. 19.05(a) (Vernon 2003). Thus, application of Section 6.02(e) in Wasylina was not appropriate.