Tommy Eugene Byars v. State

Affirmed and Memorandum Opinion filed October 21, 2008 Affirmed and Memorandum Opinion filed October 21, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00824-CR ____________ TOMMY EUGENE BYARS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 53,651 M E M O R A N D U M   O P I N I O N A jury convicted appellant Tommy Eugene Byars of assault of a public servant and assessed punishment at eight years in prison and a fine of $10,000. In two issues, he challenges the legal sufficiency of the evidence to support his conviction and complains of jury charge error. We affirm. I. Background On January 30, 2007, Kohl=s Department Store personnel saw appellant take a pair of shoes and tuck them inside his coat. When appellant tried to leave the store without paying for the shoes, a loss prevention officer asked him to return to the store. Although appellant initially complied, he then turned and ran toward one of the store exits, pushing another loss prevention officer out of his way. The two loss prevention officers chased appellant out of the store and into the parking lot, but appellant managed to evade them after a scuffle outside the store. The officers saw appellant running across a highway towards a parking lot across the street. A Lake Jackson police officer, Patrick Solis, responded to a call to the Kohl=s store and spoke with one of the employees. After receiving a description of appellant, Officer Solis, in uniform and a marked patrol vehicle, drove across the highway and encountered appellant in the parking lot outside a Target store. Officer Solis asked appellant to stop, but appellant responded with a curse word and began to run away. Officer Solis got out of his patrol unit and gave chase, catching up with appellant after about fifty yards. Officer Solis grabbed appellant=s jacket. Appellant attempted to shrug out of the jacket, but got both himself and the officer entangled in it. The two fell to the ground, where appellant continued to resist Officer Solis=s efforts to place him in handcuffs by pulling his hand away from Officer Solis. The officer, unable to handcuff appellant and concerned that appellant might be reaching into his jacket for a weapon, reached for his pepper spray. At that point, Officer Solis noticed he had no feeling in his right shoulder. Officer Solis continued to hold appellant down until other officers arrived at the scene and arrested appellant. After Officer Solis stood up, he realized he was in a great deal of pain and was transported to a local emergency room. Officer Solis suffered a dislocated shoulder, which required surgery and several months of rehabilitation. A grand jury indicted appellant with aggravated assault on a public servant. After trial, a jury convicted appellant of assault on a public servant and sentenced him to eight years in prison and a $10,000 fine.[1] This appeal followed. II. Sufficiency of the Evidence In his first issue, appellant contends the evidence is legally insufficient to support the conviction for assault of a public servant. Specifically, he asserts the evidence is insufficient to establish he intentionally, knowingly, or recklessly caused bodily injury to Officer Solis. In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318‑19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Jackson, 443 U.S. at 326. Our review is not confined to direct evidence, and intent is proven most often through the circumstantial evidence surrounding the offense. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Circumstantial evidence, however, is as probative of guilt as direct evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Jurors may infer intent from facts that tend to prove its existence, such as the defendant=s acts, words, and conduct. Id. at 50. A person commits assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. See Tex. Penal Code Ann. ' 22.01(a)(1), (b)(1) (Vernon Supp. 2008). As noted above, appellant only challenges the sufficiency of the evidence regarding the culpable mental state. Where, as here, a general verdict is returned and the evidence supports a finding of guilt on any of the theories submitted to the jury, we will uphold the conviction. See Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). We therefore focus our analysis on whether the State established appellant recklessly caused bodily injury to Officer Solis by wrestling with him, as charged in the indictment. AA person acts recklessly . . . with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur.@ Tex. Penal Code Ann. ' 6.03(c) (Vernon 2003). Viewing the evidence in the light most favorable to the verdict, the record reflects that appellant ran from the loss prevention officers at Kohl=s Department Store, pushing one of them out of his way as he fled. He also scuffled with the loss prevention officers before escaping and crossing a highway in his effort to get away. Rather than stopping when approached by Officer Solis, appellant cursed at him and again ran away. And even after Officer Solis caught up to appellant and the two fell to the ground, appellant continued to fight being handcuffed. Officer Solis testified, AAs I was pulling [appellant=s right hand,] he kept pulling it away. . . . [A]s I pulled he started tugging backwards on me.@ Officer Solis explained that when he tried to grab appellant=s arm, appellant pulled away from him. Further, when asked whether he felt any physical pain resulting from appellant=s Awrestling against [Officer Solis=s] attempts to arrest@ appellant, the officer responded affirmatively. By physically resisting arrest, appellant consciously disregarded the substantial and unjustifiable risk that Officer Solis could be injured by his actions. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (AEven if appellant had intended only to prevent his arrest, the force used by appellant against [the officer], at the very least, recklessly caused [the officer] to suffer a bodily injury.@); Gumpert v. State, 48 S.W.3d 450, 454 (Tex. App.CTexarkana 2001, pet. ref=d) (concluding that the evidence established appellant disregarded Asubstantial nonjustifiable risk that his struggling, flailing about, and kicking could result in bodily injury@). Based on the acts, words, and conduct of appellant, the jurors could have rationally inferred that his recklessness caused Officer Solis bodily injury. In sum, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant assaulted Officer Solis. We overrule appellant=s first issue. III. Jury Charge Error In his second issue, appellant claims the jury charge contains error because the trial court did not limit the definitions of the culpable mental states to the result of his conduct only. The State concedes that failing to limit these definitions to the result of appellant=s conduct is error. See, e.g., Ford v. State, 38 S.W.3d 836, 844 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (concluding that, in a result-oriented offense such as assault, failure to limit definitions to results only is erroneous). Because appellant did not raise this objection at trial, the record must show that appellant suffered egregious harm from the error, that is, that he was denied a fair trial. See Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999). The actual degree of harm must be assessed in 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. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Absent a showing to the contrary, we may presume that the jury acted rationally. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993). First, in considering the jury charge as a whole, the application paragraph properly limited the culpable mental state to the result of appellant=s conduct: Now if you find from the evidence beyond a reasonable doubt that on or about the 30th day of January, 2007, in Brazoria County, Texas, the defendant, TOMMY EUGENE BYARS, did then and there intentionally or knowingly or recklessly cause bodily injury to Patrick Solis by wrestling with Patrick Solis, and the defendant did then and there know that the said Patrick Solis was then and there a public servant, to wit: a peace officer, and the said public servant was then and there lawfully discharging [a]n official duty; you will find the defendant guilty of Assault on a Public Servant as charged in the indictment. Although such a proper application paragraph does not cure the erroneous instruction, it does factor into the harm analysis. Cook v. State, 884 S.W.2d 485, 492 n.6 (Tex. Crim. App. 1994); Harrell v. State, 923 S.W.2d 104, 107B08 (Tex. App.CHouston [14th Dist.]), vacated on other grounds, 930 S.W.2d 100 (Tex. Crim. App. 1996). AWhere the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.@ Medina, 7 S.W.3d at 640. Second, the state of the evidence weighs against a finding of egregious harm. As discussed more fully above, legally sufficient evidence supports appellant=s conviction. Based on appellant=s acts, words, and conduct, the jury could rationally infer that he acted with the appropriate culpable mental state. The third Almanza factor, argument of counsel, also weighs against a finding of egregious harm in this case. The State repeatedly made clear during closing argument that appellant intentionally, knowingly, or recklessly caused Officer Solis=s bodily injury: $ AYou=re going to be asked to decide whether or not you think Mr. Byars intentionally, knowingly or recklessly caused bodily injury.@ $ AHe=s elbowing and he=s directing those actions against the officer. That caused that bodily injury that Officer Solis told you about.@ $ AThose were the actions, those are the causes. He=s elbowing, he=s wrestling around, [he=s] moving his body into Officer Solis.@ $ AIn the indictment there is nothing necessarily to do with a dislocated shoulder. It doesn=t say a dislocated shoulder. It says caused bodily injury.@ $ ABut regardless, in this situation and in this case the Defendant caused bodily injury to Officer Solis.@ $ AAnd you can choose to believe whether or not the Defendant caused that . . . .@ $ AAnd that=s the point when [Officer Solis] realized that his arm [w]as immobilized and he couldn=t use it and he had to hold the Defendant while the Defendant continued to wrestle with him, continuing to cause the officer bodily pain.@ (emphasis added). Indeed, when considered as a whole, the State=s closing argument tended to lessen the impact of the erroneous definition in the charge. Finally, turning to Aany other relevant information revealed by the record as a whole,@ appellant points to the fact that during voir dire, the prosecutor provided a broader definition of recklessness, as well as an example reinforcing the broader definition involving driving a car into a portable toilet. But the fact that these statements occurred during voir dire lessens any potential harm stemming from them. Further, the example provided differs substantially from the facts of this case; one may only speculate that the jury relied on the example provided in voir dire. The record must reflect actual, not theoretical, harm from an error in the jury instruction. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). After considering the Almanza factors, the record does not reflect that appellant was egregiously harmed by the trial court=s failure to limit the definitions of the culpable mental states. We overrule his second issue. We affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed October 21, 2008. Panel consists of Justices Yates, Anderson, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Before voir dire, the State abandoned the allegation of Aserious@ bodily injury, reducing the charged offense to assault on a public servant.