Douglas Fontenot v. State of Texas

NO. 12-00-00355-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS DOUGLAS FONTENOT, § APPEAL FROM THE THIRD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS Appellant Douglas Fontenot appeals his conviction for assault of a public servant for which he was sentenced to thirteen years in prison. (1) In three issues, Appellant argues that the evidence was insufficient to support the conviction and refute his claim of self-defense and that the trial court erred by excluding evidence of bias on the part of the complaining witness. We affirm. Background On December 23, 1997, James McCormick was working as a correctional officer at the Coffield Unit of the Institutional Division of the Texas Department of Criminal Justice where Appellant was an inmate. Officer McCormick testified that he was working outside a certain control picket (2) on that day when Appellant walked past him in a line of inmates. Officer McCormick, who was wearing the distinctive uniform worn by all correctional officers in the Institutional Division, observed that Appellant did not have his hands behind his back as required by unit policy at that time. As Appellant walked by, Officer McCormick told Appellant to put his hands behind his back, but Appellant did not comply and continued to walk away. Due to the noise level in the area, Officer McCormick assumed that Appellant had not heard him. Officer McCormick caught up to Appellant and "hollered" at him, asking Appellant "Where do you live?" The officer testified that Appellant spun around with his hands up in an "assaultive posture," yelling and screaming for the officer not to touch him and to get away from him. Officer McCormick, who told the jury that he had not touched Appellant but had his hands down by his sides, looked down the hall for a sergeant, and did not see one. When Officer McCormick turned back to face Appellant, Appellant hit him in the face two times with his fist, causing the officer to fall back against the wall. Officer McCormick said that when Appellant hit him, it split his lip and caused him pain as well as dazing him. The officer testified that as he stood up and tried to clear his muddled head, a sergeant came running down the hall and ordered Appellant to get on the floor, but Appellant did not comply until ordered again. Officer McCormick restrained Appellant on the floor until other officers who had come to the scene handcuffed Appellant. According to Officer McCormick, the sergeant then ordered him away from Appellant because standard operating procedure required that those involved in an altercation be separated. Several correctional officers who were working at the Coffield Unit on the day of the offense testified for the State. Officer Jennifer Mathews-McCormick, (3) testified that from her post inside the control picket, she could not hear what was said between Officer McCormick and Appellant before Appellant hit Officer McCormick twice. She said that she never saw Officer McCormick touch Appellant except when he helped restrain Appellant on the floor. Officers Calvin Hanes and Jerald Knowles, who helped restrain Appellant along with Officer McCormick after the assault, testified that they saw Appellant hit Officer McCormick twice in the face. Neither officer saw Officer McCormick grab or hit Appellant. Both Officers Hanes and Knowles testified that if an inmate refused to comply with an order, the correctional officer should repeat the order. The officers explained that if the inmate continued to refuse to comply, the officer could ask for the inmate's name and I.D. number in order to file a disciplinary case against the inmate. Officers McCormick and Mathews-McCormick also testified that asking for an inmate's name and I.D. number was standard procedure. Lieutenant Balden Polk, who was a sergeant at the Coffield Unit on the day of the offense, heard Officer McCormick tell Appellant to stop as Appellant passed by the officer. The lieutenant said that Appellant did not stop immediately, but stopped only after Officer McCormick had ordered him to stop a second time. He told the jury that Officer McCormick's manner was not aggressive as he approached Appellant but that Appellant, whose hands were beside his waist, became "belligerent" toward the officer. Lieutenant Polk said that as Officer McCormick looked toward him and called for him, Appellant hit the officer twice in the face. Lieutenant Polk stated that Officer McCormick neither touched or grabbed Appellant before Appellant hit him. When more officers arrived to restrain Appellant, Lieutenant Polk ordered Officer McCormick, who was helping restrain Appellant, away from Appellant so that the confrontation would not escalate. Lieutenant Polk testified that Officer McCormick did not choke Appellant. Following the incident, Lieutenant Polk approached at least five inmates who had witnessed the incident about giving statements, but all refused. Lieutenant Polk testified that correctional officers are taught to keep a distance of six feet between themselves and the inmates for safety purposes. He said that if time permitted, a correctional officer could take several steps if an inmate refused to follow an order: call for a supervisor, call for support from additional officers, or call for a video camera. Sergeant Karl Brown testified that when he got to the scene of the altercation, Officers Hanes and Knowles were restraining Appellant on the floor as he resisted being handcuffed. Sergeant Brown said that Appellant was not choked. He did not see Officer McCormick restraining Appellant. Sergeant Brown, who took Appellant to the infirmary after the incident, told the jury that Appellant did have an abrasion on his neck, but the abrasion did not require treatment. (4) Major Eddie Baker, who performed a routine investigation into the incident, testified that Officer McCormick had not violated any policies of the Institutional Division during the incident. Major Baker testified, as did Lieutenant Polk and Officers McCormick, Mathews-McCormick, Hanes, and Knowles, that on the date of the offense, it was a policy at the Coffield Unit for inmates to hold their hands behind their backs as they walked through the hallways. Therefore, Major Baker told the jury that when Officer McCormick ordered Appellant to place his hands behind his back, it was a lawful order. Major Baker testified that correctional officers are sometimes authorized to use physical force against an inmate who refuses to obey an order, but, if time and circumstances permit, other methods should be employed first. He said that ordinarily, force is not used against an inmate for refusing to comply with an order, but the major stressed repeatedly that depending on the time frame and the circumstances of an incident, there were exceptions to the general rule. Major Baker told the jury that before resorting to using force against an inmate, a correctional officer might call for a supervisor, call for additional officers, or call for a video camera. After the State rested, two Coffield Unit inmates who had witnessed the incident testified on behalf of Appellant. Inmate Michael Black ("Black") testified that he heard Officer McCormick say something to Appellant about his hands, but Appellant kept walking. He said he warned Appellant that Officer McCormick, who was walking up behind Appellant with his fists "doubled up," was about to grab him. Black recounted that Appellant turned around, Officer McCormick grabbed Appellant by his shirt, and then Appellant hit Officer McCormick twice. Black said that when Appellant was being restrained on the floor, Officer McCormick was choking him. Black said that it was not a unit policy on the date of the offense for the inmates to walk with their hands behind their backs. Black told the jury that he was disciplined for causing a disturbance when he attempted to gave a statement to the correctional officers about the incident. Inmate Wilbert Mosely ("Mosely") testified that Officer McCormick was ordering all the inmates who passed him to put their hands behind their backs. Mosely said that such was not a unit policy, but he had his own hands behind his back that day because the correctional officers "[were] going to mess with you if you [did]n't." Mosely said that Officer McCormick grabbed Appellant by the shirt, and then Appellant and Officer McCormick "went to wrestling." Mosely told the jury that Appellant and Officer McCormick were exchanging blows for a couple of minutes. Mosely said that Lieutenant Polk asked him to give a statement about the incident, but he refused. Next, Appellant testified in his own behalf. Appellant said that on the date of the offense, he was walking with his hands down by his sides because there was no written rule or policy requiring inmates to walk with their hands behind their backs. Appellant saw Officer McCormick standing in the hall, but did not hear the officer say anything to him. Three inmates who were in line with Appellant warned him that an officer was walking up behind him, so Appellant turned to "confront" the officer and found Officer McCormick. Appellant told the jury that Officer McCormick said, "You are going to learn to stop when I tell you," and grabbed the front of Appellant's shirt. At that point, because he was "in fear of [his] life and the reputation [Officer McCormick was] known for," Appellant struck Officer McCormick twice in the face. As soon as Appellant hit the officer, other officers came running toward him, ordering him down on the floor, and he complied. Appellant testified that after he lay down on the floor, Officer McCormick jumped on his back, pulled his shirt collar around his neck, and began to choke him. Appellant explained he tried to turn over so that he could breathe, and that the other officers who were trying to restrain him could have interpreted his actions as resistance to being handcuffed. Appellant said Lieutenant Polk pulled Officer McCormick off of him and ordered the officer away from the scene. Appellant testified that he had not meant to harm Officer McCormick but acted only to protect himself. Appellant told the jury that Officer McCormick had a reputation as a "hardhead," and that when he hit the officer, Appellant was in fear of imminent harm. Appellant called Lloyd Jones, an investigator with the State Counsel for Offenders, as his final witness. Investigator Jones testified that Lieutenant Polk told him he had ordered Officer McCormick away from the scene of the incident because the officer attempted to use force against Appellant as Appellant was being restrained on the floor. Sufficiency of the Evidence In his first issue, Appellant contends that the evidence was insufficient to support his conviction for the offense of assault of a public servant. Specifically, Appellant avers that the evidence was insufficient to prove that Officer McCormick was lawfully discharging an official duty when Appellant assaulted him. Because Appellant does not designate whether he complains of legal or factual sufficiency of the evidence, we must address both. Legal Sufficiency The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, 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, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a mere modicum of evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). All conflicts in the evidence should be resolved in favor of the verdict, and every reasonable inference indulged. Faison v. State, 59 S.W.3d 230, 236 (Tex. App.- Tyler 2001, pet. ref'd). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). A person commits the offense of assault of a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person he 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. 2002). "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 1994). A "public servant" is "a person elected, selected, appointed, employed, or otherwise designated as ... an officer, employee, or agent of government." Tex. Pen. Code Ann. § 1.07(a)(41) (Vernon 1994). A correctional officer is a public servant. See id. Appellant does not dispute that Officer McCormick was a public servant at the time of the offense. Appellant does not dispute that he did not have his hands behind his back when he passed Officer McCormick. He does not dispute that he hit Officer McCormick twice in the face, splitting his lip and causing him to fall back against a wall. Appellant disputes that Officer McCormick was lawfully discharging an official duty when Appellant hit him because, he alleges, the officer used unlawful force to obtain compliance with an order. As previously set out in detail above, Appellant and his witnesses offered a markedly different version of the events immediately preceding the assault on Officer McCormick from the State's version of events. However, we must reconcile those differences in favor of the jury's verdict. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant committed the offense of assault of a public servant. The evidence showed that on the date of the offense, it was a policy at the Coffield Unit that all inmates were to hold their hands behind their backs when they walked through the hallways; therefore, Officer McCormick's order to Appellant to place his hands behind his back was a lawful order. When Appellant failed to comply with his order, Officer McCormick followed Appellant and ordered him to stop. Appellant turned to confront the officer, began shouting at him, and then hit the officer twice in the face. Officer McCormick neither touched nor threatened Appellant before Appellant struck him. Therefore, we hold that the evidence was legally sufficient to support the conviction. Factual Sufficiency When reviewing the factual sufficiency of the evidence, 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 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). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). This review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility to be given to the testimony of the witnesses. Jones, 944 S.W.2d at 648. We limit our inquiry into the factual sufficiency of the evidence to prove that Officer McCormick was lawfully discharging an official duty. There was conflicting evidence offered on the issue of whether Officer McCormick was lawfully discharging an official duty when Appellant assaulted him. Major Baker, Lieutenant Polk, and Officers McCormick, Mathews-McCormick, Hanes, and Knowles, all testified that on the date of the offense, it was a policy at the Coffield Unit for inmates to hold their hands behind their backs as they walked through the hallways. Major Baker specifically told the jury that when Officer McCormick ordered Appellant to place his hands behind his back, it was a lawful order. The three inmate witnesses, including Appellant, testified that there was no policy requiring that they walk with their hands behind their backs, though inmate Mosely admitted he placed his own hands behind his back as he walked down the hallway that day because he knew the correctional officers expected him to do so. The jury, by its verdict, resolved the conflict in the evidence against Appellant. Finding that the order was a lawful order, the jury next had to consider whether Officer McCormick acted lawfully when Appellant did not obey the order. Officers McCormick, Mathews-McCormick, Hanes, and Knowles all testified that it was standard procedure for a correctional officer to ask for the inmate's name and I.D. number in order to file a disciplinary case against the inmate, thus explaining Officer McCormick's question to Appellant, "Where do you live?" There was conflicting evidence about whether Officer McCormick grabbed Appellant before Appellant hit him. All of the correctional officers questioned about the use of force against an inmate for failure to comply with an order agreed that other steps should be pursued first but only if time and circumstances permitted. Officer McCormick testified that he had his hands by his sides and did not touch Appellant, and none of the correctional officers who saw the assault saw Officer McCormick touch Appellant before Appellant hit him. Appellant and the other inmate witnesses testified that Officer McCormick grabbed Appellant's shirt before Appellant hit the officer. The jury apparently resolved the conflict in the evidence against Appellant. Based upon our neutral review of the evidence, we cannot say that the proof of guilt is either so obviously weak as to undermine confidence in the jury's determination or greatly outweighed by contrary proof. We hold that the evidence is factually sufficient to support the conviction. Accordingly, Appellant's first issue is overruled. Self Defense In his second issue, Appellant contends that the evidence was insufficient to refute his contention that he was acting in self-defense. A person is justified in using force when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Hudson v. State, 956 S.W.2d 103, 104-05 (Tex. App.- Tyler 1997, no pet.); Tex. Pen. Code Ann. § 9.31(a) (Vernon Supp.2002). The force used by a defendant must be reasonable as contemplated from the defendant's point of view. Hudson, 956 S.W.2d at 105. However, the use of force against another is not justified in response to verbal provocation alone. State v. Morales, 844 S.W.2d 885, 891 (Tex. App.- Austin 1992, no pet.); Tex. Pen. Code Ann. § 9.31(b). Self-defense is an issue of fact to be determined by the jury. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The State has the burden of persuasion in disproving any evidence of self-defense, but not a burden of production which requires the State to affirmatively refute the self-defense claim. Id. Therefore, in reviewing the sufficiency of the evidence supporting a conviction where a claim of self-defense was raised, we do not look to whether the State presented evidence which refuted the self-defense theory, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also would have found against Appellant on the self-defense theory beyond a reasonable doubt. Id. at 914. The standard of review with respect to a self-defense claim, applies to both legal and factual sufficiency reviews. See Juarez v. State, 961 S.W.2d 378, 385 n.5 (Tex. App.- Houston[1st Dist.] 1997, pet. ref'd). It is undisputed that Officer McCormick did not hit Appellant first. Viewing the evidence in the light most favorable to the verdict, it is apparent that the jury resolved the issue of whether the officer grabbed the front of Appellant's shirt before the assault against Appellant. Therefore, we are left to consider whether the State met its burden of persuasion as to the two remaining theories of self-defense upon which Appellant produced evidence. First, Appellant testified that because of Officer McCormick's reputation as a "hard head," Appellant feared for his life when Officer McCormick told him that he was going to learn to do what the officer ordered. Because the use of force is not justified in response to verbal provocation alone, the State met its burden of persuasion on this theory of self-defense as a matter of law. Next, Appellant testified that Officer McCormick used physical force against him by choking him when he was being restrained on the floor. However, the alleged choking occurred after the assault, and, thus, would not justify self-defense as a defense to the charged assault as a matter of law. We hold that the evidence is not only legally and factually sufficient to show the essential elements of assault of a public servant beyond a reasonable doubt but also legally and factually sufficient to disprove the issue of self-defense beyond a reasonable doubt. Appellant's second issue is overruled. Excluded Evidence and Appellant's Right to Confrontation In his third issue, Appellant contends that the trial court erred by excluding evidence of bias or motive on the part of the complaining witness. Additionally, Appellant argues the evidence should have been admitted to correct a false impression left by Officer McCormick's testimony. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will not reverse a trial court as long as its ruling was within the "zone of reasonable disagreement." Id. Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). During counsel's cross-examination of Officer McCormick, the following colloquy occurred: Q. And you are saying you didn't do anything to provoke this? A. No, ma'am. Q. That you didn't strike him? A. No, ma'am. Q. And you wouldn't do that; is that what you would have the jury believe? [State's objection omitted.] Q. Now...are you trying to leave the jury with the false impression you would not do that? You would not provoke- A. No, I wouldn't. Q. -or strike an offender; is that what you are saying? A. Not in an unprovoked attack, no, ma'am. Q. Okay. Well, haven't you been put on probation just for that, for provoking and striking an offender? The prosecutor: Your Honor, I am going to object as being relevant to this case. The court: Sustained. Appellant's counsel: Your Honor, may we approach? The court: No, you may not. Continue with the questioning. At the conclusion of the day's evidence, counsel put on the following bill of exceptions without any further explanation: Q. Mr. McCormick, I wanted to just ask you that if-is it true that you have received a disciplinary action from T.D.C.J. for striking an offender without justification? Is that true? A. Yes, ma'am, that's the way the investigation turned out. Q. Okay. And is it also -was part of it true in the allegations that you failed to accurately report that use of force? A. Yes, ma'am. Q. And this -the time frame is approximately April of 1999? A. Yes, ma'am. Q. And you received six months probation for this? A. Yes, ma'am. Q. Okay. The court: Is that all? That concludes the bill? Appellant's counsel: Your Honor, that concludes my bill. The court: All right. I still sustain the objection. The trial court excluded the evidence based upon the State's relevance objection. At no time did counsel explain to the trial court that she was proffering the evidence to show bias, to correct a false impression, or for any specific purpose. Ordinarily, if a party's trial objection does not comport with the issue raised on appeal, he has preserved nothing for review. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). However, even assuming, without deciding, that Appellant's complaint was clear to the trial court from the context in which the questions arose, and, thus, that Appellant has preserved his issue for appeal, we conclude his argument is without merit. Appellant specifically complains that the trial court erroneously limited his right to cross-examination of the complaining witness in violation of his Sixth Amendment right to confrontation. The Constitutional right to confrontation is a substantial right. The right to confront one's accuser necessarily includes the right to cross-examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). The Constitutional right of confrontation is violated when appropriate cross-examination is limited. Id. Nevertheless, there are several areas where cross-examination may be inappropriate and, in those situations, the trial judge has the discretion to limit cross-examination. Id. at 498. Specifically, a trial judge may limit cross-examination when a subject is exhausted, or when the cross-examination is designed to annoy, harass, or humiliate, or when the cross- examination might endanger the personal safety of the witness. Id. Although a defendant is allowed great latitude in showing a witness's bias or motive to falsify testimony, the trial courts have considerable discretion as to how and when bias may be proved and what collateral evidence is material for that purpose. Cloud v. State, 567 S.W.2d 801, 802 (Tex. Crim. App. [Panel Op.] 1978). Generally, a party cannot impeach a witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990). A matter is collateral when the cross-examining party would not be entitled to prove it as a part of his case tending to establish his plea. Id. However, a party may impeach a witness with a collateral matter when that witness leaves a false impression on direct examination concerning a matter relating to his credibility. See id. at 676 (emphasis added); Sherman v. State, 20 S.W.3d 96, 101 (Tex. App.- Texarkana 2000, no pet.). On the other hand, when a witness is cross-examined on a collateral matter, the cross-examining party may not then contradict the witness' answer. Shipman v. State, 604 S.W.2d 182, 183 (Tex. Crim. App. [Panel Op.] 1980). In other words, the cross-examining party may not impeach a witness during cross-examination on a collateral issue. See id. First, we note that the fact that Officer McCormick was disciplined for using force against another inmate over one year after Appellant assaulted him is a collateral matter by definition. Appellant would not be able to prove it up as part of his defense. Secondly, it is far from clear that the testimony elicited from Officer McCormick for the bill of exceptions would have shown bias. On cross-examination, counsel asked the officer if he was put on probation for "provoking and striking" another inmate. The testimony on the bill showed only that Officer McCormick was placed on probation for striking an offender without "justification" and failing to report it correctly. This testimony did not literally contradict the officer's testimony on cross-examination. Furthermore, the testimony on the bill showed that the officer did not believe he was not justified in using force against the other inmate. Finally, Appellant himself created the "false impression" during his cross-examination of Officer McCormick. Therefore, he should not have been allowed to impeach the officer with testimony relating to a collateral matter. We hold that the trial court did not abuse its discretion by limiting Appellant's cross-examination of Officer McCormick. Appellant's third issue is overruled. The judgment is affirmed. LEONARD DAVIS Chief Justice Opinion delivered March 20, 2002. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. (DO NOT PUBLISH) 1. Appellant pleaded true to one enhancement paragraph alleging a prior felony conviction thereby making the instant offense punishable as a felony of the second degree. 2. A control picket is an enclosed area housing the controls which allow the guards to open and close the gates to various hallways and cell blocks. 3. Officer Mathews-McCormick was married to Officer McCormick at the time of the trial but not at the time of the offense. 4. A video tape introduced by Appellant purportedly shows a nurse in the prison infirmary swabbing at Appellant's neck. The video tape is not part of the record on appeal because Appellant failed to make a motion that it be filed by the clerk of this court.