Danielle Marie Dickerson v. State

Opinion issued November 16, 2006 Opinion issued November 16, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00948-CR DANIELLE MARIE DICKERSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 15 Harris County, Texas Trial Court Cause No. 1299509 MEMORANDUM OPINION A jury found appellant Danielle Marie Dickerson guilty of the Class B misdemeanor offense of interference with public duties. See Tex. Pen. Code Ann. § 38.15(a)(1) (Vernon Supp. 2005). The trial court assessed punishment at fifteen days’ confinement and imposed a fine of $500. In two issues, Dickerson contends the evidence is legally and factually insufficient to support her conviction. We affirm. Facts In April 2005, Harris County Sheriff’s Deputy T. Hodge, a process server for County Court 10, drove to Dickerson’s residence to serve a subpoena. Deputy Hodge, dressed in full uniform, arrived at the residence around 1:00 p.m. Another car pulled into Dickerson’s driveway at the time Hodge arrived, driven by a woman later identified as Theresa Mungle, the sister of Dickerson’s boyfriend. Deputy Hodge exited her car, asked Mungle a few questions, and then noticed a large Akita dog at the side of the house. Dickerson stood near two men who were laying cobblestone near the front door of the house. Hodge asked Dickerson to secure the dog. Hodge also told Dickerson that she was there to serve her with a subpoena. Mungle and Hodge both testified that Dickerson then began to yell at Hodge using profanity, racial epithets, and physical gestures, repeatedly telling Hodge to “get off” her property. The dog became increasingly defensive and began growling and barking incessantly. Throughout the entire exchange, Deputy Hodge repeatedly asked Dickerson to restrain her dog. Dickerson continually refused, claiming that Hodge was the one trespassing and that she should get off her property. Frightened by the dog’s aggressive behavior, Deputy Hodge gave the subpoena to Mungle to deliver. After receiving the subpoena from Mungle, Dickerson threw it on the ground. Prompted by the dog’s violent behavior and Dickerson’s refusal to accept the subpoena, Hodge walked back down the driveway towards the street. According to Deputy Hodge, Dickerson and her dog followed closely behind, with Dickerson still cursing and the dog still barking. Hodge called for backup on her police radio and stated aloud to her supervisor that she needed help and might have to shoot the dog. She also reached for her gun but did not pull it out of the holster. At this time, Dickerson finally grabbed her dog’s collar in an effort to control him. Dickerson was unable to restrain the dog so Mungle asked one of the construction workers for assistance. The construction worker chained the dog in the yard and Dickerson locked herself in the house. Four Humble police officers arrived at the scene shortly thereafter. Dickerson’s testimony at trial was somewhat different from that of Hodge and Mungle. Dickerson contends that, on the afternoon in question, she was inside her house when she saw Mungle’s car and another black SUV pull into her driveway. Dickerson watched the two women talking and walked outside to greet them, assuming that Deputy Hodge was Mungle’s friend. As soon as Dickerson walked out of the door, Deputy Hodge began screaming at her to chain the dog. Dickerson admits that the dog was barking, but in a non-violent manner. She explained to Deputy Hodge that the dog does not bite, but she had to raise her voice to communicate because Hodge was yelling so loudly. Dickerson contends that she never used profanity or physical gestures toward the deputy. When Hodge reached for her gun, Dickerson became afraid that the deputy would shoot both her and her dog. Dickerson maintains that this is the first time she realized that Deputy Hodge was a peace officer. At this time, the construction worker helped Dickerson chain the dog in the yard. Dickerson retreated to her house and watched the four Humble police officers arrive, although none of them came to the door to talk to her. Dickerson maintains that she did not realize that Deputy Hodge was at her house to serve a subpoena until Mungle gave it to her. She also claims that she never threw it on the ground. Dickerson contends that if the deputy had told her that she was there to serve a subpoena, she would have accommodated the deputy in any manner possible. Instead, Deputy Hodge never told Dickerson about the subpoena and then threatened to shoot her dog, so Dickerson’s focus was on protecting her pet. Mungle and Dickerson both testified that no more than thirty seconds elapsed from the time the incident became very “heated,” until Hodge reached for her gun and Dickerson finally made an effort to restrain the dog. Hodge testified that about ten minutes elapsed from the time she “perceived danger,” until Dickerson finally made an effort to restrain her dog. Interference with Public Duties In her first and second issues, Dickerson contends the evidence is legally and factually insufficient to support her conviction for interference with public duties. A person commits the offense of interference with public duties if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. Tex. Pen. Code Ann. § 38.15(a)(1). It is a defense to prosecution if the interruption, disruption, impediment, or interference consisted of speech only. Id. § 38.15(d). 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. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). Legal Sufficiency Standard of Review When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Legally Sufficient Evidence Dickerson’s first issue is that the evidence is not legally sufficient to support her conviction for interference with public duties. Specifically, Dickerson first challenges the legal sufficiency of the evidence to support every element of the offense of interference with public duties. Tex. Pen. Code Ann. § 38.15(a)(1) (stating that person commits offense of interference with public duties if person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with peace officer while peace officer is performing duty or exercising authority imposed or granted by law). Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Dickerson committed the offense of interference with public duties. Deputy Hodge testified that she is a Harris County Sherriff’s Deputy. A sheriff’s deputy is a peace officer according to article 2.12 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 2.12(1) (Vernon Supp. 2005). Hodge also testified that she is performing a duty or exercising authority imposed or granted by law when she serves a subpoena. See id. art. 2.13(b)(2) (Vernon 2005); id. arts. 24.01(b)(1), 24.04(a)(2) (Vernon 1989 & Supp. 2005). The record also contains legally sufficient evidence to support a finding that Dickerson interrupted, disrupted, impeded, or otherwise interfered with Deputy Hodge in the performance of her legally imposed duty to serve Dickerson with the subpoena. Hodge and Mungle both testified that Hodge informed Dickerson that she was trying to serve her with a subpoena, and that she needed to restrain her dog. Dickerson responded with commands to “get your black ass off my property,” as well as aggressive hand gestures and the use of profanity. When Hodge tried to retreat to the street, Dickerson actively followed Hodge down the driveway with her dog at her side, cursing and yelling, and making the dog more agitated. Dickerson and the dog only halted their pursuit when Hodge left the property and was on the street. Dickerson effectively used her dog to force Hodge to leave her property by walking towards Hodge with the agitated and angry dog at her side. Hodge also testified that Dickerson’s actions interrupted, disrupted, impeded, and interfered with her ability to serve the subpoena. See Berrett v. State, 152 S.W.3d 600, 604–05 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that evidence of defendant’s conduct in filming his encounter with police and repeatedly moving his arm out of officer’s reach to prevent officer from placing him in handcuffs, despite officer’s telling defendant more than fifteen times to place his hand behind his back, was legally and factually sufficient to support conviction for interference with public duties); Key v. State, 88 S.W.3d 672, 676 (Tex. App.—Tyler 2002, pet. ref’d) (holding that evidence was legally sufficient to support conviction for interference with public duties when officer testified that defendant was agitated and that he and another officer attempted to calm defendant to investigate disturbance call, that he ordered defendant to remain on sidewalk to prevent defendant from assaulting individual, and that defendant stepped off of sidewalk toward individual six times prior to being placed under arrest, and second police officer confirmed officer’s testimony). Viewing the evidence in the light most favorable to the verdict, we hold that the record contains legally sufficient evidence to support a finding that Dickerson interrupted, disrupted, impeded, and interfered with Hodge’s duty to serve the subpoena. The record also contains legally sufficient evidence to support a jury finding of criminal negligence. Dickerson contends that because the dog had never exhibited violent behavior prior to this incident, and because she was on her own property, her conduct demonstrates that she exercised ordinary care during this incident. To support a finding of criminal negligence, “[t]he State does not have to prove that [Dickerson] was aware of a substantial and unjustifiable risk, rather the State has to prove that [Dickerson] ought to have been aware of a substantial and unjustifiable risk.” Lopez v. State, 630 S.W.2d 936, 940 (Tex. Crim. App. 1982) (emphasis added). Hodge and Mungle both testified that Dickerson refused to restrain her dog after repeated requests from Hodge. They also testified that the dog visibly frightened Deputy Hodge, so much so that Hodge retreated down the driveway and eventually reached for her gun. Dickerson’s yelling also exacerbated her dog’s aggressive behavior, making the situation even more dangerous. We conclude that the record contains legally sufficient evidence to support a finding that Dickerson ought to have been aware that there was a substantial and unjustifiable risk in failing to secure her dog and using the dog to force Deputy Hodge off her property, and that her failure to perceive that risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. Finally, Dickerson contends the evidence presented at trial is legally insufficient to support a finding that her conduct was not “speech only.” Tex. Pen. Code Ann. § 38.15(d) (“It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.”). Dickerson’s speech during the incident has nothing to do with the charged offense of interference with public duties. As discussed above, the record contains legally sufficient evidence to support a finding that Dickerson failed to restrain her dog after repeated requests from Hodge, and forced Hodge off her property by following Hodge to the street with the agitated dog at her side. Dickerson’s failure to restrain the dog and her affirmative act of forcing Hodge off her property constitute the culpable conduct for which the State charged Dickerson with interference with public duties. This conduct does not constitute speech. See Barnes v. State, No. PD-0939-05, 2006 WL 1083968, at *4 (Tex. Crim. App. Apr. 26, 2006) (holding that mother’s shout to her seven-year-old son to run from police did not constitute “speech only” for purposes of interference with public duties conviction); Berrett, 152 S.W.3d at 604–05 (holding that defendant’s spoken refusals to comply with commands of police officer were not conduct used to convict him of interference with public duties; rather, culpable conduct was his videotaping his arrest and continually moving his arm away when officer tried to put him in handcuffs). Dickerson’s spoken refusals are irrelevant; Dickerson completed her crime when she did not take action in response to Deputy Hodge’s repeated requests and affirmatively forced Hodge off the property by following her down the driveway with her angry dog at her side. Thus, a rational juror could have found beyond a reasonable doubt that Dickerson’s conduct did not constitute “speech only.” Tex. Pen. Code Ann. § 38.15(d). Voluntariness Dickerson’s second contention is that the evidence is not legally sufficient to support her conviction for interference with public duties because the record contains no evidence that her actions or omissions were voluntary. The Texas Penal Code provides that certain conditions must be met before a person can be held criminally accountable for his or her conduct. See Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003). “A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.” Id. “Voluntarily” as used in section 6.01(a) means “the absence of an accidental act, omission or possession,” and only refers to one’s physical bodily movements. Id.; Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002); Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993) (“Because ‘voluntarily’ means the absence of accidental act, omission or possession, it is not a fact that the State must prove in every case. Rather, the State need not prove voluntariness unless the evidence raises the issue of accident, in which case the State must disprove the theory of accident beyond a reasonable doubt.”). Viewing the evidence in the light most favorable to the verdict, the record contains legally sufficient evidence to support a finding that Dickerson’s failure to restrain her dog was voluntary and not an accident. Hodge and Mungle both testified that in response to Hodge’s requests that she restrain her dog, Dickerson replied that she would not tie up her dog because the dog was at home and Hodge was the one trespassing. This testimony affirmatively demonstrates that Dickerson understood Hodge’s request and “voluntarily” refused to comply with it. See Alford, 866 S.W.2d at 624 n.8. In addition, Dickerson’s affirmative act of following Hodge to the street with the agitated dog at her side was a “voluntary” act as well. Id.; see also Calhoun v. State, 951 S.W.2d 803, 809 (Tex. App.—Waco 1997, pet. ref’d) (holding evidence was legally sufficient to support finding that defendant voluntarily burned child with scalding water and injury was not accident); Molinar v. State, 910 S.W.2d 572, 584–85 (Tex. App.—El Paso 1995, no pet.) (holding evidence was legally sufficient to support finding that defendant voluntarily stabbed victim). Thus, the record contains legally sufficient evidence to support a finding that Dickerson’s actions were voluntary. No Duty Dickerson’s third contention is that the evidence is not legally sufficient to support her conviction for interference with public duties because she had no duty to comply with Hodge’s request that she restrain her dog. As stated in the previous section, “[a] person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.” Tex. Pen. Code Ann. § 6.01(a). “A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Id. § 6.01(c). Dickerson contends that because her conduct consisted of an omission to act, she cannot be convicted of interference with public duties unless a law specifically provides that she had a duty to restrain the dog at the request of Hodge. Hodge and Mungle testified that after Hodge asked Dickerson to restrain her dog, Dickerson began yelling and commanding Hodge to “get off” her property. When Hodge tried to retreat to the street, Dickerson actively followed Hodge down the driveway with the dog at her side, cursing and yelling, and making the dog more agitated. Dickerson and the dog only halted their pursuit when Hodge left the property and was on the street. Dickerson effectively used her dog to force Hodge to leave her property by walking towards Hodge with the agitated and angry dog at her side. This voluntary action interrupted, impeded, disrupted, and interfered with Hodge’s duty to deliver the subpoena. See Tex. Pen. Code Ann. § 38.15(a)(1). We conclude that Dickerson’s conduct, in these circumstances, constitutes voluntary action, not a mere omission to act. See Berrett, 152 S.W.3d at 604 (holding that defendant’s conduct in filming his encounter with police and repeatedly moving his arm out of officer’s reach to prevent officer from placing him in handcuffs, despite officer’s telling defendant more than fifteen times to place his hand behind his back, constituted voluntary action, not mere omission to act). As a result, the State did not have to prove that Dickerson had a duty to accede to Deputy Hodge’s requests. See id. Factual Sufficiency Standard of Review When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. Receipt of the Subpoena Dickerson’s second issue is that the evidence is not factually sufficient to support her conviction for interference with public duties. Specifically, Dickerson first maintains that the evidence is not factually sufficient to uphold her conviction because her ultimate receipt of the subpoena proves that she did not interfere with the deputy’s lawful duty to serve the subpoena. The relevant language of section 38.15 provides that a person commits the offense of interference with public duties if she “interrupts, disrupts, impedes, or otherwise interferes” with the performance of the duty. Tex. Pen. Code Ann. § 38.15(a). Dickerson’s eventual receipt of the subpoena does not prove that her conduct did not affirmatively interfere with Hodge’s performance of the public duty. Her refusal to restrain the intimidating dog, along with her own aggressive behavior, created a situation that interrupted, disrupted, impeded, and interfered with Deputy Hodge in the performance of her public duty. Thus, the evidence is factually sufficient to support a finding that Dickerson interrupted, disrupted, impeded, and interfered with Hodge’s ability to perform her duty to serve the subpoena. The fact that Dickerson eventually obtained the subpoena does not negate her interference with its service. See Berrett, 152 S.W.3d at 604 (holding that defendant’s eventual arrest did not preclude conviction for interference with public duties when he filmed his encounter with police and repeatedly moved his arm out of officer’s reach to prevent officer from placing him in handcuffs, despite officer’s telling defendant more than fifteen times to place his hand behind his back). Criminal Negligence Dickerson’s second contention is that the evidence is factually insufficient to support a finding of criminal negligence. Dickerson specifically points to the testimony of the three witnesses regarding the length of the incident. Mungle and Dickerson both testified that no more than thirty seconds elapsed from the time the incident became very “heated,” until Hodge reached for her gun and Dickerson finally made an effort to restrain the dog. Hodge testified that about ten minutes elapsed from the time that she “perceived danger,” until Dickerson finally made an effort to restrain her dog. Dickerson contends that this apparent discrepancy lends support to her version of the facts and demonstrates that the evidence is factually insufficient to support a jury finding of criminal negligence. According to Dickerson, if the incident lasted only thirty seconds, her version of the facts becomes more plausible. We conclude that the record contains factually sufficient evidence to support a finding of criminal negligence. The testimony of Mungle and Hodge does not contradict with regard to time because they testified to the length of time between different events. In addition, the remainder of their testimony is substantially the same, especially with regard to Dickerson’s repeated refusals to restrain her dog and Dickerson’s statements to Hodge during the incident. Mungle’s and Hodge’s testimony indicates that (1) Dickerson knew that Hodge was attempting to serve a subpoena, (2) Dickerson understood the purpose of Hodge’s requests to restrain the dog, and (3) Dickerson’s refusal to restrain her dog was a voluntary action designed to force Hodge off her property. Dickerson’s testimony, on the other hand, suggests that the entire incident was a misunderstanding, fueled by Hodge’s irrational and excessive behavior with regard to the dog. While Dickerson’s testimony is in direct contravention to the testimony of Mungle and Hodge, the jury was free to disregard any testimony that it found to be not credible. See Cain, 958 S.W.2d at 407 n.5. We conclude that the record contains factually sufficient evidence to support a finding that Dickerson ought to have been aware that there was a substantial and unjustifiable risk in failing to secure her dog and using the dog to force Deputy Hodge off her property, and that her failure to perceive that risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. When viewed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Accordingly, we hold that the evidence is factually sufficient to support the jury finding of criminal negligence. Conclusion We hold that the evidence is legally and factually sufficient to support Dickerson’s conviction for interference with public duties. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b).