Jared Latta v. the State of Texas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-20-00184-CR
________________________
JARED LATTA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 424th District Court
Llano County, Texas
Trial Court No. CR7558; Honorable Evan Stubbs, Presiding
September 9, 2021
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
It has been said that sometimes the biggest problems have the simplest solutions.
This case presents the reverse corollary to that proposition. Appellant, Jared Latta,
appeals from his Class A misdemeanor offense conviction, by a petit jury, of the criminal
offense of official oppression1 and the resulting court-imposed sentence of twelve months
confinement in county jail, probated for a period of eighteen months. Appellant
challenges his conviction through seven issues. We will affirm.2
BACKGROUND
Appellant was charged via a single-count, three-paragraph grand jury indictment
with the offense of official oppression. The State proceeded to trial only on Paragraph II,
abandoning Paragraphs I and III. Paragraph II of the indictment asserted that Appellant,
on or about the 2nd day of May, 2017, did “then and there, knowing his conduct was
unlawful, intentionally deny or impede Cory Nutt in the exercise or enjoyment of a right,
namely, his right not to be deprived of his liberty without due course of law, by detaining,
seizing, and arresting Cory Nutt, and the Defendant was then and there acting under color
of his employment as a public servant, namely, a Llano Police Officer.”
By agreement of the parties, venue was transferred to Burnet County from Llano
County and the matter was tried before a jury. At trial, evidence was presented to show
that Nutt was arrested from his RV park residence, without a warrant, for the Class C
misdemeanor offense of public intoxication.3 An officer is authorized under article
1 TEX. PENAL CODE ANN. § 39.03(a)(2) (West 2020). A public servant acting under color of his office
or employment commits an offense if he intentionally denies or impedes another in the exercise or
enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful. An offense under
this section is a Class A misdemeanor.
2 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to
this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. §
73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court
on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court.
TEX. R. APP. P. 41.3.
3 A person commits the crime of public intoxication if he or she appears in a public place while
intoxicated to the degree that the person may endanger the person or another. TEX. PENAL CODE ANN. §
49.02 (West 2020).
2
14.01(b) of the Code of Criminal Procedure to arrest a person for public intoxication
without a warrant if the offense was committed in his presence or within his view. TEX.
CODE CRIM. PROC. ANN. art. 14.01(b) (West 2015). A public place includes any place to
which the public or a substantial group of the public has access. TEX. PENAL CODE ANN.
§ 1.07(40) (West 2020).
Evidence presented at trial showed that on the day of his arrest, Nutt returned from
work, grilled dinner, and ate with his next-door neighbor, Alex Britton. Nutt and Britton
drank a few beers after which Nutt went back to his trailer. Shortly thereafter, Nutt walked
back to Britton’s trailer to look for his cell phone. As the two men were talking at Britton’s
door, they heard an engine rev and tires spin out on the gravel road. The men saw their
neighbor from several spaces down, Grant Harden, driving his pickup through the RV
park. Nutt and Britton knew Harden was a Llano police officer. Nutt told Harden to slow
down. Harden stopped and backed up, and he and Nutt engaged in a heated exchange
through Harden’s open vehicle window. Nutt continued talking with Britton. Harden said
he would “be back later,” got on his phone, and left. Harden called a Llano County
dispatcher and asked her to run Nutt’s license plate. At trial, the dispatcher testified she
heard someone yelling and cussing in the background during that call.
According to Nutt’s testimony, after the dispute with Harden, he went back to his
trailer, found his phone, cleaned up his dishes, called his wife about 9:40, and then went
to sleep in his clothes. He did not have shoes on. Harden later returned to the RV park
and called the dispatcher for Nutt’s license information. At 11:09 p.m., Harden called out
over the police radio, asking Appellant or another officer to respond to the RV park.
Harden said he had a “public intox.” Approximately one minute later, the dispatcher called
3
Harden and asked if he was “out with this Cory subject.” Harden responded, “He’s
intoxicated and he went back in his RV, I’m going to sit here for another unit.”4 When the
dispatcher asked for clarification on the identity of the subject, Harden said, “first name
Cory is all that I know.”
Appellant, Officer Aimee Shannon, and Llano Police Chief Kevin Ratliff responded
to the RV park. The four police officers knocked on Nutt’s door and he answered, wearing
clothes and socks but no shoes. Officer Shannon’s body camera recorded approximately
the final fourteen minutes of the confrontation between Nutt and the other officers.5
Harden and Nutt argued about the circumstances of their earlier confrontation with
Harden saying he saw Nutt intoxicated outside his trailer and had informed Nutt he was
under arrest for public intoxication. Nutt disagreed, saying that never happened and that
he was inside asleep when the officers arrived. Nutt testified he woke to the sound of
loud knocking or beating on his trailer door. He opened the door and an officer pulled the
door from his grasp and latched it open.6 Nutt stood at the doorway of his trailer, refused
to exit the trailer, and denied consent for the officers to enter.
According to the transcript and audio of the confrontation between the officers and
Nutt, Harden said Nutt went inside his trailer and shut the door. He further said, Nutt “ran
inside [the trailer] and slammed the door, but he’s so intoxicated he couldn’t even lock it.”
When the officer confronted Nutt at his trailer door, Harden made several statements
4Harden claimed he had detained Nutt for public intoxication before he went into his trailer.
However, there was nothing in the evidence to suggest Harden’s alleged attempt to detain Nutt or that Nutt
had evaded any detention by going into his trailer.
5 The recording from the body camera provides a limited view of the interaction.
6 Nutt testified that the door to his RV opened outward.
4
indicating that Nutt’s failure to comply with the demands could cost him his job and Officer
Shannon claimed Nutt’s failure to comply might lead to additional charges. After an
intense exchange, Nutt provided to Officer Shannon his identification when she requested
it.
At approximately ten and a half minutes into the recorded portion of the interaction
between Nutt and the three officers, Officer Shannon can be seen pointing a taser at Nutt.
Nutt remained inside the doorway of his trailer and Officers Shannon and Harden told him
he would be tased if he did not comply with their demands. Chief Ratliff walked past the
other two officers, moved behind Nutt, put a hand on Nutt’s back, instructed him to step
out of the trailer, and directed him out the door and down the steps. Nutt characterized
this as “pushing” him, but not forcefully. Nutt stated, “I don’t want to walk outside” to which
Appellant replied, “You’re not—come on out, or . . . you’re not going to like the way I do
it.” Once Nutt was outside, Appellant handcuffed him. While Nutt requested that he be
handcuffed in front of his body, Appellant refused, telling him that he “lost that opportunity
earlier” when he “didn’t do what we asked.” Nutt was then transported to the jail.7 One
witness, an attorney for the Law Enforcement Defense Division of the Attorney General’s
office, testified Appellant appeared to use a pain compliance technique on Nutt while
handcuffing him. Another witness characterized Nutt’s arrest as unlawful because he
was arrested for public intoxication out of his residence without a warrant in violation of
7 The interim police chief investigated the interaction between Nutt and the officers. As part of that
investigation, he interviewed Nutt. He said that when he spoke with Nutt in March 2018, Nutt was
“cooperative, sober, and fairly articulate. On the night of 5/2/17, Mr. Nutt appeared on video/audio to be
very intoxicated.”
5
applicable law. The public intoxication charge filed against Nutt was subsequently
dismissed.
ANALYSIS
ISSUE ONE—TWELVE PERSON JURY
Through his first issue, Appellant contends the trial court erred in forming, seating,
and swearing in a twelve-person jury in violation of article V, section 13 of the Texas
Constitution and article 33.01(b) of the Texas Code of Criminal Procedure. The State
responds that Appellant has waived this issue for appellate review because he did not
object to the jury as seated. Further, the State argues, even assuming error, Appellant
was not harmed because by increasing the size of the jury to twelve, the trial court
afforded Appellant procedural protections exceeding those required by the Texas
Constitution. And, since the effect of seating twelve jurors was to significantly increase
the State’s burden, it did not affect Appellant’s substantial rights and did not contribute to
his conviction.
Article 4.05 of the Texas Code of Criminal Procedure provides that district courts
have original jurisdiction in criminal cases of all misdemeanors involving official
misconduct. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2015). Article V, section 13 of
the Texas Constitution provides, “Grand and petit juries in the District Courts shall be
composed of twelve persons, except that petit juries in a criminal case below the grade
of felony shall be composed of six persons[.]” TEX. CONST. art. V, § 13.
6
Article 33.01 of the Texas Code of Criminal Procedure provides as follows:
(a) Except as provided by Subsection (b), in the district court, the jury shall
consist of twelve qualified jurors. In the county court and inferior courts,
the jury shall consist of six qualified jurors.
(b) In a trial involving a misdemeanor offense, a district court jury shall
consist of six qualified jurors.
TEX. CODE CRIM. PROC. ANN. art. 33.01 (West 2006).
Prior to voir dire, the court and the parties discussed jury formation. The following
discussion took place on the record:
Defense: Just so for the record, it’s my understanding that the court’s
position is that we are seating 12 jurors, and each side gets
five strikes? Is that –
The Court: From – from my reading of it that appears to be proper,
although that’s not what I would have thought when you asked
me last week before I looked at the Code, but it’s my
understanding that there’s a provision that basically says that
the clerk is to seat the first 12 jurors in district court that have
not been stricken through [peremptory] strikes, so, therefore,
I believe the number would be 12, and there’s a separate
provision that states that for a misdemeanor offense heard in
district court that each side receives five [peremptory] strikes.
Defense: And, just for the purpose of the record, it’s the defense’s
understanding and position that a misdemeanor tried in
district court is a formation of six jurors with strikes of five each
side. I understand the court’s ruling. I’ve just – if the court is
seating 12, we would request ten strikes.
The Court: Okay. Well, my – my – as I said off the record, if you have a
provision that you can point me to, I would be more than
happy to make the jury either a jury of six or to provide you
with ten strikes; however, my reading of the Code is that it’s a
12-person jury with five strikes. State, do you have a position?
7
Prosecutor: I’d like ten strikes as well, but I think the court is right. It says
– 35.26(a)8 says that the district clerk will strike [sic] the first
12 jurors after strikes in a district court. 35.15 says that there
are five challenges for a misdemeanor in district court. So
that’s –
Defense: I object, Your Honor, on the record, just for safety sakes.
The Court: Just so it’s clear, the objection is overruled.
Defense: Yes, sir.
The Court: It will be a 12-person jury and each side will receive five
[peremptory] strikes.
Defense: Yes, sir.
After this exchange, the parties conducted voir dire, exercised their challenges,
both challenges for cause and peremptory challenges, and a twelve-person jury was
seated. When asked whether there was any objection “to this jury,” defense counsel
responded, “No, Your Honor.”
The State agrees with Appellant that, despite some confusion in Texas statutes
and the apparent reliance by the trial court on one of those, article 35.26(a), the Texas
Constitution requires that district court juries in misdemeanor cases be composed of six
jurors, and the constitutional provision controls over the conflicting statutes. Therefore,
to the extent that the trial court seated twelve jurors instead of six, the trial court erred.
8 Article 35.26(a) of the Texas Code of Criminal Procedure states as follows:
When the parties have made or declined to make their peremptory challenges, they shall
deliver their lists to the clerk. Except as provided by Subsection (b) of this section [dealing
with the seating of alternate jurors in death penalty cases], the clerk shall, if the case be in
the district court, call off the first twelve names on the lists that have not been stricken. If
the case be in the county court, he shall call off the first six names on the lists that have
not been stricken. Those whose names are called shall be the jury.
TEX. CODE CRIM. PROC. ANN. art. 35.26(a) (West 2005).
8
However, the State contends, any error in the seating of extra jurors was harmless.
Appellant does not discuss harm in his appellate brief. He says the error seating the jury
violated his constitutional rights and thus, “the error is not one that is subject to a harm
analysis . . . .” We disagree.
All errors are subject to harm analysis except for the very limited class of
constitutional errors characterized as “structural” errors. Lake v. State, 532 S.W.3d 408,
411 (Tex. Crim. App. 2017) (citation omitted). The error before us is not structural in
nature. The United States Constitution does not require misdemeanor juries to consist of
no more than six persons. Rather, it requires only an impartial jury. U.S. CONST. amend.
VI.9 See McClellan v. State, 143 S.W.3d 395, 400 (Tex. App.—Austin 2004, no pet.)
(citations omitted).
Pursuant to Rule 44.2(a), “[i]f the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of appeals must
reverse a judgment of conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction.” TEX. R. APP. P.
44.2(a) (emphasis added). Pursuant to rule 44.2(b), “Any other error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.” TEX. R. APP. P.
44.2(b). A substantial right is affected if the error had a substantial and injurious effect or
9 The Sixth Amendment provides as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defense.
U.S. CONST. amend. VI.
9
influence in determining the jury’s verdict. Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex.
Crim. App. 2011); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Haley v.
State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). If the error did not influence the jury
or had but a slight effect, the error is harmless. Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998).
An appellate court should examine the record as a whole when conducting a harm
analysis. Motilla v. State, 78 S.W.3d 357, 358 (Tex. Crim. App. 2002). In conducting the
harm analysis, an appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury’s consideration, the trial court’s
instructions to the jury, the State’s theory, any defensive theories, closing arguments, and
even voir dire, if material to the appellant’s claim. Motilla, 78 S.W.3d at 355-56; Morales
v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the factors to
be considered are the nature of the evidence supporting the verdict, the character of the
alleged error, and how the evidence might be considered in connection with the other
evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Also, an
appellate court should consider overwhelming evidence of guilt, but it is only one factor
in the harm analysis. Motilla, 78 S.W.3d at 357.
We do not find any evidence Appellant was harmed under the standards set forth
in either 44.2(a) (constitutional error) or (b) (non-constitutional error).10 As noted, the
United State Constitution does not speak to the size of juries. The Texas Constitution
10 The State argues that while the Texas Constitution is the basis for the complaint herein, the error
here does not rise to the level of constitutional error. We do not find it necessary to determine which harm
analysis is applicable here as no harm is shown under either.
10
clearly requires that a six-person jury be seated in misdemeanor cases heard in district
court. A twelve-person jury was seated in Appellant’s case despite this provision. While
error, we cannot find harm. Larger sized juries tend to produce longer deliberations, more
communication, better community representation and hopefully, greater verdict reliability.
Ballew v. Georgia, 435 U.S. 223, 245, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978). Further,
the fact that a twelve-person jury was seated in Appellant’s case placed a higher burden
on the State as it was required to convince twelve, rather than just six, people of
Appellant’s guilt. Compare McClellan, 143 S.W.3d at 401 (finding the trial court lessened
the State’s burden to prove appellant guilty beyond a reasonable doubt when it proceeded
with eleven jurors instead of twelve). The larger jury provided Appellant with more
safeguards than those required by the constitution, not less. Accordingly, we do not find
Appellant was harmed by the trial court’s seating of a twelve-person jury and we overrule
Appellant’s first issue.
ISSUE TWO—CHALLENGES
Via his second issue, Appellant argues the trial court erred in limiting the number
of peremptory strikes afforded to each side in violation of section 35.15(b) of the Texas
Code of Criminal Procedure.
That provision provides in relevant part:
(b) In non-capital felony cases and in capital cases in which the State does
not seek the death penalty, the State and defendant shall each be
entitled to ten peremptory challenges. If two or more defendants are tried
together each defendant shall be entitled to six peremptory challenges
and the State to six for each defendant.
(c) The State and the defendant shall each be entitled to five peremptory
challenges in a misdemeanor tried in the district court and to three in the
11
county court, or county court at law. If two or more defendants are tried
together, each defendant shall be entitled to three such challenges and
the State to three for each defendant in either court.
TEX. CODE CRIM. PROC. ANN. art. 35.15(b), (c).
The trial court allowed each side five peremptory challenges, precisely following
the mandate set forth in section (c) of the above-quoted provision for a misdemeanor tried
in district court. While the judge did seat a twelve-person jury, the above-quoted provision
speaks only to the number of challenges in felony cases and misdemeanor cases and not
to whether the challenges differ based on the number of jurors seated. As such, we find
the trial court did not err in limiting the number of peremptory strikes allowed to each side.
We overrule Appellant’s second issue.
ISSUE THREE—LIMITATION DURING VOIR DIRE
By his third issue, Appellant asserts the trial court abused its discretion in limiting
defense counsel’s questioning of the venire panel during voir dire. He notes that the
State’s voir dire encompassed nearly forty pages of the reporter’s record and there were
no interruptions during that time. He points out his counsel prepared a digital slideshow
to use during voir dire and that his examination encompassed nearly forty-six pages of
the reporter’s record and covered numerous topics. When counsel began discussing the
concept of Fifth Amendment protections, the trial court interrupted and informed counsel
that he was “out of time.” Counsel requested additional time, arguing he had not been
able to cover all of the issues he deemed important for voir dire. The court informed
counsel he had been afforded the same length of time as the State and that he had been
informed of the length of time before voir dire started. As a result, the court denied
Appellant’s request for additional time. Appellant submitted a thumb drive of the
12
information he was unable to cover with the jury panel, including the Fifth Amendment,
burden of proof related to defenses, and unanimous verdict. The slides included six
questions counsel would have asked the jury.
On appeal, Appellant argues the trial court erroneously limited his voir dire and
prevented him from questioning the panel on several very significant subjects. He argues
this error was compounded by the trial court’s error in seating a twelve-person jury and
allowing only five peremptory challenges because this added to his inability to properly
vet all jurors. As a result, Appellant contends, “[i]t is not possible to review such a situation
and find beyond a reasonable doubt that the error did not contribute to his conviction.”
Texas trial courts have broad discretion over the jury-selection process. Barajas
v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The trial court’s right to “dispatch its
business expeditiously must be justly balanced against society’s interest in seating fair
juries.” Whappler v. State, 183 S.W.3d 765, 773 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d) (citing McCarter v. State, 837 S.W.2d 117, 120 (Tex. Crim. App. 1992)).
Accordingly, we review complaints about restrictions on voir dire for abuse of discretion.
Whappler, 183 S.W.3d at 773; Barajas, 93 S.W.3d at 38. Absent an abuse of discretion,
we will not reverse the trial court’s refusal to allow defense counsel additional voir dire
time. Whappler, 183 S.W.3d at 773 (citing McCarter, 837 S.W.2d at 119; Smiley v. State,
129 S.W.3d 690, 696 (Tex. App.—Houston [1st Dist.] 2004, no pet.)).
Courts have described the purposes of voir dire as (1) to develop rapport between
the officers of the court and the jurors; (2) to expose juror bias or interest warranting a
challenge for cause; and (3) to elicit information necessary to intelligently use peremptory
13
challenges. Cordova v. State, 296 S.W.3d 302, 307 (Tex. App.—Amarillo 2009, pet. ref’d)
(citing Dhillon v. State, 138 S.W.3d 583, 587-88 (Tex. App.—Houston [14th Dist.] 2004,
pet. stricken); S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.—Houston [14th Dist.]
1996, pet. denied)). A trial court may impose reasonable restrictions on the exercise of
voir dire examination, including reasonable limits on the amount of time each party can
question the jury panel. Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App.1991),
overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App.1995);
Ratliff v. State, 690 S.W.2d 597, 597 (Tex. Crim. App.1985).
When a party complains of an inability to collectively question the venire, a two-
part test applies: (1) whether the complaining party attempted to prolong the voir dire; and
(2) whether the questions the party was not permitted to ask were proper voir dire
questions. Cordova, 296 S.W.3d at 307 (citing McCarter, 837 S.W.2d at 120; S.D.G.,
936 S.W.2d at 380). To preserve error concerning the manner of voir dire, an appellant
must point to a question the trial court did not allow the panel to answer. Id. (citations
omitted).
The resolution of Appellant’s issue in this situation turns on whether he preserved
error. We conclude he did not. The record reflects that after Appellant’s request for
additional time was denied, Appellant asked the court if the “thumb drive with the
remaining slides—well, with all of the slides and the remaining slides starting with the
slide covering the Fifth Amendment, failure to testify that was not covered and beyond be
admitted in support of my request for additional time.” Counsel agreed he was offering
the thumb drive as an exhibit “[a]s a bill of proof in support of my request.” The court
permitted the admission for the purpose of the record. Counsel asked if the trial court
14
would prefer to have a hard copy of the slides and the court said it would. Counsel then
told the court he would “submit that later in the day” when he obtained hard copies.
Nothing further was offered in support of Appellant’s bill of proof.
Appellant’s identification of slides covering “the Fifth Amendment, failure to testify
that was not covered and beyond” did not timely advise the trial court of the specific
questions he desired to ask the panel. Furthermore, it is unclear when the hard copies
were submitted to the trial court and when, if ever, the court reviewed that exhibit in its
digital or paper form. To preserve error, it was Appellant’s burden to inform the trial court
of specific questions he was not permitted to ask at a time at which the court could rectify
any error. Dhillon, 138 S.W.3d at 591; TEX. R. APP. P. 33.1(a)). To perfect his bill of proof,
counsel should have read each of the desired questions into the record before the court
but, did not do so. A general reference to the subject matter of the inquiry or where the
questions might be found is insufficient to preserve error.
Further, even assuming preservation of error, we note that “[c]ounsel has the
responsibility to appropriately budget his time within the reasonable limits set by the
court.” Whitaker v. State, 653 S.W.2d 781, 781-82 (Tex. Crim. App. 1983). As noted,
both the State and defense counsel were told before voir dire how much time each side
would have to examine and question the panel. Both sides were afforded the same length
of time. Counsel did not request additional time, nor did he complain that the time
permitted was insufficient. Further, counsel was warned when he had five minutes
remaining of his time for voir dire and he did not at that time voice a complaint or change
the cadence of his examination. He simply said, “Judge, I know I’m going to go over.” To
15
which the court responded, “No, you’re not.” In response, counsel simply told the court
that if his time was up, he wanted to submit his thumb drive to the court.
The record shows counsel used a significant portion of his allotted voir dire time
introducing himself, asking each individual venire member to rank his or her perception
of Appellant’s guilt and discussing the origins of the United States and Texas
Constitutions. While each of these subject areas was arguably important and utilized
strategically by counsel, the trial court would not have abused its discretion in determining
that counsel could have better used his allotted time to examine the venire members on
all of the areas he had identified as significant in this case, rather than spending such a
considerable amount of time on areas that were not as beneficial to selecting the best
jury for this specific case. This is particularly true given the fact that the court had explicitly
warned counsel that they would not be allowed to go over their allotted time. See Godine
v. State, 874 S.W.2d 197, 202 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (finding
trial court would not have abused its discretion to find that counsel unnecessarily
prolonged his voir dire and wasted time that could have been used in another manner).
Accordingly, we overrule Appellant’s third issue.
ISSUE FOUR—ACCOMPLICE WITNESS TESTIMONY INSTRUCTION
In his fourth issue, Appellant complains that the trial court committed egregious
error by failing to instruct the jury as to the effect of accomplice witness testimony.
Appellant argues that because Officer Shannon “was under indictment for the same
offense for which Appellant was indicted, Shannon was an accomplice witness as a
matter of law.” Accordingly, he argues the trial court should have provided the instruction
to the jury and because it did not, it committed harmful reversible error.
16
An accomplice is one “who participates with a defendant before, during, or after
the commission of the crime and acts with the requisite culpable mental state.” Martin v.
State, No. 07-15-00079-CR, 2017 Tex. App. LEXIS 2265, at *5-6 (Tex. App.—Amarillo
Mar. 15, 2017, pet. ref’d) (mem. op., not designated for publication) (citing Cocke v. State,
201 S.W.3d 744, 748 (Tex. Crim. App. 2006)). To be considered an accomplice, the
witness must have affirmatively acted to promote the commission of the offense with
which the defendant is charged. Martin, 2017 Tex. App. LEXIS 2265, at *6 (citing Smith
v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011)).
In Texas, a “conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed[.]” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2020); Zamora v. State, 411
S.W.3d 504, 509 (Tex. Crim. App. 2013) (quoting Druery v State, 225 S.W.3d 491, 498
(Tex. Crim. App. 2007)). Specifically, article 38.14 of the Texas Code of Criminal
Procedure provides as follows:
A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of the offense.
This rule reflects a legislative determination that accomplice witness testimony
implicating another person should be viewed with a measure of caution because
accomplices often have a personal incentive to shift the blame to another person. Martin,
2017 Tex. App. LEXIS 2265, at *6 (citing Zamora, 411 S.W.3d at 509). Therefore, where
implicated by the facts of a given case, because the rule requires the testimony of an
accomplice to be corroborated before a conviction can stand on that testimony, jury
17
instructions must include a proper definition of an accomplice. Martin, 2017 Tex. App.
LEXIS 2265, at *6 (citing Zamora, 411 S.W.3d at 510). However, the non-accomplice
testimony does not need to establish every element of the crime. Joubert v. State, 235
S.W.3d 729, 731 (Tex. Crim. App. 2007).
In addition, the particular accomplice witness instruction that must be given to the
jury depends on whether the witness is an accomplice as a matter of law or as a matter
of fact. Martin, 2017 Tex. App. LEXIS 2265, at *7. This is a matter determined according
to the circumstances of each case and “[a] proper accomplice-witness instruction informs
the jury either that a witness is an accomplice as a matter of law or that he is an
accomplice as a matter of fact.” Id (citations omitted). A witness is an accomplice as a
matter of law if he or she has been charged with the offense in question, or a lesser-
included offense. Martin, 2017 Tex. App. LEXIS 2265, at *7 (citing Zamora, 411 S.W.3d
at 510; Druery, 225 S.W.3d at 498). If a witness is an accomplice as a matter of law, the
trial court is required to affirmatively instruct the jury that the witness is an accomplice
and that his or her testimony requires corroboration. Martin, 2017 Tex. App. LEXIS 2265,
at *7 (citing Zamora, 411 S.W.3d at 510).
Here, Appellant did not object to the absence of an accomplice witness instruction
and thus, any error will not require reversal unless Appellant shows he has been
egregiously harmed. Herron v. State, 86 S.W.2d 621, 632 (Tex. Crim. App. 2002). Under
the egregious harm standard, the omission of an accomplice witness instruction is
generally harmless unless the corroborating (i.e., non-accomplice) evidence is “so
unconvincing in fact as to render the State’s overall case for conviction clearly and
significantly less persuasive.” Id. (citation omitted). In examining the record for egregious
18
harm, a reviewing court should consider the entire jury charge, the state of the evidence,
including the contested issues and the weight of the probative evidence, the final
arguments of the parties, and any other relevant information revealed by the record of the
trial as a whole. State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016); Allen v.
State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citation omitted). Jury charge error
is egregiously harmful if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Ambrose, 487 S.W.3d at 597 (citation
omitted).
At the time Officer Shannon testified, she had been indicted for the same offense
as Appellant, i.e., official oppression, arising out of the same events at issue in this case.
Therefore, it is undisputed that she was an accomplice as a matter of law. Ash v. State,
533 S.W.3d 878, 884 (Tex. Crim. App. 2017) (stating “[i]f the witness has been charged
with the same offense as the defendant or a lesser-included offense, then the witness is
an accomplice as a matter of law”). As such, the trial court should have instructed the
jury that Officer Shannon was an accomplice and that her testimony must be corroborated
before it could be considered by the jury. Cocke, 201 S.W.3d at 748 (citation omitted);
Torres v. State, 560 S.W.3d 366, 371 (Tex. App.—San Antonio 2018, no pet.). Because
it did not include such an instruction, the trial court erred. As such, we must now turn to
a consideration of the amount of harm caused by this error.
Appellant argues he was egregiously harmed by the trial court’s failure to include
an instruction concerning accomplice witness testimony in the charge to the jury. He
contends the State’s insistence on the inclusion of a law of parties instruction, the State’s
emphasis on conviction as a party in its closing arguments, and its reliance on Officer
19
Shannon’s testimony in arguing the law of parties supports his assertion that he was
egregiously harmed by the trial court’s omission. The State disagrees, arguing the error
was harmless because the record contains ample non-accomplice testimony that tended
to connect Appellant to the offense, therefore allowing the jury to consider Officer
Shannon’s testimony the same as it would any other evidence.
We agree with Appellant that the State both referred to and emphasized Officer
Shannon’s testimony. Furthermore, we agree the remainder of the jury charge failed to
indicate corroboration was required. Those factors weigh in favor of a finding of egregious
harm. However, in light of the strength of the non-accomplice testimony presented, we
cannot find Appellant was egregiously harmed by the omission of the accomplice witness
instruction.
The non-accomplice testimony presented at trial included the testimony of Nutt,
Britton, and Christie Schutte. Each of these witnesses provided information that tended
to connect Appellant to the offense with which he was charged, and that evidence was
not so exceedingly weak that he was deprived of a fair and impartial trial. See State v.
Ambrose, 457 S.W.3d 154, 160 (Tex. App.—San Antonio 2015), aff’d, 487 S.W.3d 587(Tex. Crim. App. 2016). Each of the non-accomplice witnesses testified that Appellant
participated in removing Nutt from his trailer and in Nutt’s arrest. This evidence was both
uncontradicted and relatively strong.
20
Nutt testified that in May 2017, he was living at the RV park while his company was
rebuilding electrical stations in San Saba. He had lived there for about a year 11 and he
and his next-door neighbor, Britton, often socialized. He also said he knew Officer Harden
was a police officer who lived in a recreational vehicle at the end of the row in the RV park
where he lived.12 On the evening in question, he and Britton cooked dinner on the
barbeque pit between their residences. The two men had drinks with dinner.13 Nutt
testified he “had a few beers” and drank from about 6:30 to 9:30 that evening.14 They
spent a couple of hours together, but Britton was on call for his job and was in and out a
bit during the evening. Nutt testified that after the two finished dinner, Nutt was cleaning
up. He had misplaced his phone, so he went to Britton’s RV to see if he had left it there.
He said it was about 9:15 in the evening and was getting dark when he heard Officer
Harden’s vehicle spin out and round the corner. He yelled “hey” at Officer Harden and
asked him to slow down. Nutt testified he thought Officer Harden should slow down
because there was a lot of traffic in the park in the evenings and it was difficult to see. He
said there were elderly people who walk their animals and kids that play in the RV park.
He said his six-year-old son stayed with him quite a bit on the weekends. Officer Harden
took offense at Nutt’s comments, stopped his vehicle, and rolled down his window, and
Nutt again told him he was driving too fast. Nutt admitted he spoke loudly because he
11Nutt testified he did not live there all the time. He was living there while completing this project,
but he had a home with his family elsewhere.
12 Nutt testified he did not know Officer Harden’s name at the time of the incident.
13 During cross-examination, Nutt testified he did not think Britton was drinking because he was on
call.
14 During cross-examination, Nutt said he did not recall how many beers he drank but agreed it was
less than six.
21
was about twenty-five feet away. Nutt said the conversation was “a little bit heated, but
not to the point I would have been screaming.” Nutt said Officer Harden told him “he is
the law” and said he was not speeding. Nutt turned back to Britton to continue asking
about his phone. Officer Harden appeared to get on his phone and then drive away.
Following the exchange, Nutt went back to his RV, found his phone, finished cleaning the
dishes, called his wife around 9:40, and went to bed.
About an hour and a half later, he heard very loud knocking at his door. He partially
opened the door and saw two officers, one of whom was Officer Shannon and one of
whom Nutt was unable to identify. The two officers told him to come out of his trailer.
One of the officers grabbed the door and latched it open on the outside. Nutt said the
officers kept telling him to step out of his trailer because he had been witnessed as being
intoxicated in his yard. Nutt said that he had not been out of his RV since having returned
from Britton’s RV where he went to look for his phone and that he had gone to sleep after
he spoke with his wife at 9:40. Nutt said the officers “made it very clear they wanted me
outside.” Nutt did not know the officers, but he heard Officer Harden at the back of the
trailer talking to who Nutt presumed to be another officer, telling his side of the story.15
Nutt testified all of the officers kept asking him to step outside the trailer and did so
for around ten minutes. He said he believed “the intent of four officers to show back up
to my house an hour and a half after me and Grant Harden had a conversation” was to
arrest him. Nutt said that he did not give any of the officers consent to enter his RV and
15 Nutt testified he believed Harden’s side of the story to be that Nutt “was out in [his] yard hollering
obscenities at him, stumbling around intoxicated, and that I was drunk in public.” Nutt denied this story,
stating he was asleep in his RV.
22
that he told them they were not welcome and to leave his property. Officer Harden
threatened to “come up and get” Nutt. Officer Shannon pointed a taser at Nutt and Officer
Harden repeatedly said, “She’s going to tase you, dude.” Appellant was also there and
was positively identified by Nutt at trial.16
Eventually, Chief Ratliff came into his trailer to get him. Chief Ratliff walked into
Nutt’s trailer, put his hands on the small of his back, and pushed him out of the RV. Nutt
testified he did not want to go outside but that Chief Ratliff forced him out by pushing him.
Nutt did admit that while he did not want to go, he did comply. Nutt said that “[a]s soon
as my feet touched the ground I was placed under arrest and the cuffs were put on me.”
Nutt did not know who placed the cuffs on him because he was facing away from the
officer. He testified it was “very uncomfortable” when he was cuffed and that despite
asking to be cuffed in front since he is a “bigger fellow,” the officer did not do so. Nutt
was told he “had lost all [his] rights to reasonably asking for anything by not stepping out
of [his] trailer when they requested [him] to.” Officer Shannon loosened Nutt’s handcuffs
and placed him in the back of a patrol car. He was booked into jail and was released
about 8:00 or 8:15 the next morning. He was charged with public intoxication; however,
that charge was later dismissed.
Britton’s testimony also tended to connect Appellant to the charged offense.
Britton testified he lived next to Nutt at the RV park. He said the two were friends and
“hung out quite a bit . . . cooked dinner quite a bit.” At about 7:00 in the evening of the
day in question, Britton and Nutt were cooking outside Britton’s RV. The two men ate
16 Nutt did not recall Appellant saying anything directly to him the night of the incident.
23
dinner and had a few drinks together.17 Britton testified Nutt had “a beer and maybe two
mixed drinks.” Around 8:00 or 8:30, the two parted ways and they went inside their
respective RVs to get ready for bed. At about 9:00,18 Nutt came back to Britton’s RV
looking for his phone. While the men were outside Britton’s door talking, they saw Officer
Harden leaving in his truck. Britton testified he knew who Officer Harden was and that he
was a police officer. Britton testified Officer Harden “seemed like he was in a hurry.”
Britton told the jury that Nutt told Officer Harden to slow down. In response, Harden
stopped and rolled his window down, saying he was on his way to a call and asked what
Nutt had said. Britton characterized the conversation as “a little heated, but it was pretty
quick also.” At the time of the exchange, Nutt was about five steps from Britton’s RV door
and about twenty or thirty feet away from Officer Harden’s truck. Britton also said Nutt
was speaking clearly, not staggering and did not look intoxicated or like he was a danger
to himself or others. Britton testified Officer Harden said he “would be back later to handle
this,” then he left. At that time, Nutt and Britton went back to their own RVs.
Britton testified that later that night, after he had gone to bed but before he was
asleep, he heard hard knocking on the door to Nutt’s RV. When it was repeated, he got
up to see what was going on. He saw “three or four” police officers, two in front of Nutt’s
door, Officers Harden and Shannon, and two, Appellant and Chief Ratliff, standing behind
17 At the time of the incident, Britton was twenty years old and thus, under the legal drinking age.
He testified his parents had brought beer to him the previous weekend.
18
On cross-examination, Britton admitted it could have been an hour later. He later acknowledged
he was simply estimating or guessing at the time.
24
those officers.19 He saw Officers Harden and Shannon talking to Nutt while he was
standing at his open RV door. The officers were asking Nutt to come out of the RV
because “they said that he was intoxicated, and he needed to come out.”
Britton testified he also knew Schutte because she was “running the RV park.” On
the night Nutt was arrested, Schutte was in her truck right next to where Britton was
standing. Schutte testified she was the manager at the RV park where the events in
question occurred. She told the jury she knew the officers before the incident that night.
While she did not know Appellant personally, she knew him as an officer in town. She
testified Officer Harden called her just before 11:00 that night and told her there was “a
disturbance in the park a couple trailers down from him.” When she arrived, she pulled
her vehicle near Officer Harden’s vehicle. She saw him behind Britton’s trailer, speaking
on the phone and his radio about Nutt’s license plate. When she spoke with Officer
Harden, he told her he was taking Nutt to jail for public intoxication. Schutte called the
owner of the RV park to let her know what was happening and stayed on the phone with
her during the entire incident, spanning forty-four minutes. Schutte pulled her vehicle into
a position that allowed her to see Nutt and his trailer. She testified she was about fifteen
feet from Nutt’s door.
Schutte testified that she saw Appellant arrive after she moved to where she could
see Nutt’s door. She saw him with Officer Harden in Nutt’s yard. Officer Shannon and
Chief Ratliff arrived shortly thereafter. Schutte said “[Nutt] was in his door. [Officer
19 Britton only knew Officer Harden at the time of Nutt’s arrest. He learned the identities of the other
officers through the investigation and trials of the officers. At one of the prior trials, Britton answered “I’m
not sure” when asked whether Appellant was there at the time. Britton identified Appellant at Appellant’s
trial as one of the officers at Nutt’s trailer that night.
25
Harden] was holding the door. And then there was [Officer Shannon], [Appellant], and
then [Chief Ratliff] was right behind [Officer Shannon’s] shoulder in between him and
[Appellant].” She testified Appellant and Officer Shannon were “shoulder-to-shoulder
almost lined up there.” Schutte testified she saw the officers talking to Nutt, trying to get
him to come out of the RV “for a good while . . . [a]t least 20 minutes I think.” She said
the confrontation ended when Chief Ratliff went into Nutt’s trailer and pushed him out the
door. Schutte testified that it was Appellant who handcuffed Nutt.
The record shows the State also introduced Appellant’s training records that
showed he held an Advanced Peace Officer Certificate and had taken both a “new
supervisor” course and an “intermediate arrest, search and seizure” course.
The above-noted non-accomplice witness testimony, coupled with the evidence of
Appellant’s training, showed that Appellant was aware that the officers’ attempts to
remove Nutt from his trailer and arrest him without a warrant were unlawful. Thus, that
evidence tended to connect Appellant to the offense.
Further, the State offered the expert testimony of Karen Matlock. She testified the
officers’ conduct, including that of Appellant, was evidence of their knowledge that their
actions were unlawful under the circumstances. She pointed out that the officers
remained outside Nutt’s trailer for “quite some time” because “[t]hey know they can’t go
in there. They know it’s a PI. They know they don’t have the authority to go in there
without a warrant, otherwise they would have gone in earlier. They know no one else in
in trailer [sic]. So they wait and they wait and then other officers show up who decide to
go ahead and go in.” She concluded that, as a result of the action taken, the officers
26
deprived Nutt of his constitutional right to due process of law. She noted that public
intoxication is not a jailable offense and that Nutt was found in his own home. Such an
offense is not of the type of offense that exigent circumstances will allow a warrantless
arrest from a person’s home. Here, the officers not only attempted to remove Nutt from
his home for the purpose of arrest but they also threatened him with the loss of his job as
a result of his conduct. Matlock characterized this as “[t]otally inappropriate.” She further
said the officers had “no justification. They could not lawful [sic] arrest [Nutt], so he has
not committed any offense by refusing to come out or refusing whatever they’re telling
him to do as far as submitting to arrest.” She elaborated, stating that there was no
evidence that Nutt was intoxicated, much less any evidence that he presently presented
a danger to himself or others as a result of his intoxication. Thus, in her opinion, the
officers’ seizure and arrest of Nutt was unlawful. She further testified there was no reason
for Appellant to use a painful stimulus to handcuff Nutt and using pain without justification
was a violation of his civil rights and could result in an excessive use of force lawsuit. She
also opined that Appellant was acting under color of law during this incident. She testified,
“He was a law enforcement officer for the Llano police department, and he was acting as
a law enforcement officer when he took him into custody.” This non-accomplice witness
testimony also tended to connect Appellant to the offense.
We also consider the state of the arguments in the record. The State first
emphasized Matlock’s testimony in closing arguments. It also emphasized Officer
Shannon’s testimony and the law of parties, stating that the State “needed Aimee
Shannon and the information she had for two very important points that only she could
provide.” Those two things were that Officer Shannon said she turned her body camera
27
on as soon as she got out of her vehicle and that Appellant arrived at the scene “about
five minutes” after she did. The defense also emphasized Officer Shannon’s testimony
and noted that she was given immunity so that she was able to say “whatever she wants
and nothing can be held against her.”
While the State believed Officer Shannon’s testimony to be “very important” and
the defense argued her testimony was more believable and credible due to the grant of
immunity, a “proper harm analysis requires us to disregard” her testimony in determining
whether Appellant suffered egregious harm. Ambrose, 457 S.W.3d at 162 (citing De La
Rosa v. State, 919 S.W.2d 791, 796 (Tex. App.—San Antonio 1996, pet. ref’d) (noting
that Almanza’s harm standard in accomplice witness cases requires a reviewing court to
disregard the accomplice testimony and consider only non-accomplice corroboration)).
Based on this standard, we find the non-accomplice evidence in the record
significantly connected Appellant with the offense for which he was charged. See Herron,
86 S.W.2d 632. We thus find the error in omitting an instruction to the jury concerning
accomplice witness testimony to be harmless under the requisite egregious harm
standard applicable here. As such, we overrule Appellant’s fourth issue.
ISSUE FIVE—JURY INSTRUCTIONS
By his fifth point of error, Appellant argues the trial court erred in failing to include
requested jury instructions and definitions concerning the law and defenses applicable to
the case. We will consider each argument separately.
28
Texas Penal Code Section 8.02—Mistake of Fact
“It is a defense to prosecution that the actor through mistake formed a reasonable
belief about a matter of fact if his mistaken belief negated the kind of culpability required
for commission of the offense.” TEX. PENAL CODE ANN. § 8.02(a); Louis v. State 393
S.W.3d 246, 253 (Tex. Crim. App. 2013). An instruction is not required if the evidence,
viewed in the light most favorable to the defendant, does not establish a mistake of fact
defense. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).
Appellant argues that “[c]learly, his mistake of fact whether or not Probable Cause
existed based upon the knowledge, collective knowledge of other officers and or his
reliance on their formation or justification for the detention, seizure and arrest of the
Complaining Witness may negate in a juror’s mind, the culpability necessary for the
offense, namely ‘intentionally deny or impede Cory Nutt in the exercise or enjoyment of a
right . . .’ and thus Appellant was entitled to an instruction on mistake of fact.”
The State argues the trial court did not err in refusing to include the requested
instruction because it was unclear and misleading and an incorrect statement of law.
Furthermore, the State contends that the requested instruction was unnecessary because
it only denied the existence of an essential element of the State’s case, i.e., Appellant’s
knowledge that his behavior was unlawful, and thus, was redundant. Lastly, the State
asserts that even if the trial court erred, Appellant was not harmed because the substance
of the mistake-of-fact instruction was adequately covered by the jury charge as given.
We agree that Appellant was not harmed by any error in the omission of the
requested instruction because the charge instructed the jury that it must find each of the
29
essential elements of the offense with which Appellant was charged beyond a reasonable
doubt. One of those elements was Appellant’s knowledge that his conduct was unlawful.
The charge clearly instructed the jury what it was required to find and thus, the lack of a
specific mistake-of-fact instruction did not harm Appellant. See Sands v. State, 64
S.W.3d 488, 496 (Tex. App.—Texarkana 2001, no pet.) (finding that the required
determination of whether the defendant intentionally and knowingly possessed
methamphetamine placed squarely in point the question of whether the defendant
mistakenly believed that the contents of the syringe contained vitamins, or he intentionally
and knowingly possessed methamphetamine. Under those circumstances, the defendant
was not denied the right to have the jury consider the mistake of fact defense he raised).
Texas Penal Code Section 9.22—Necessity
Necessity is a justification defense that excuses a defendant’s otherwise unlawful
conduct if (1) the defendant reasonably believed the conduct was immediately necessary
to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly
outweighed, according to ordinary standards of reasonableness, the harm sought to be
prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the
justification claimed for the conduct does not otherwise plainly appear. TEX. PENAL CODE
ANN. §§ 9.02, 9.22 (West 2020); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App.
1999). Necessity is a confession-and-avoidance defense, meaning that a defendant is
not entitled to a necessity instruction unless he admits to the conduct—both the act and
the culpable mental state—of the charged offense and then offers necessity as a
justification. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). In other
words, the defendant must “admit” or confess to violating the statute under which he is
30
being tried, then offer necessity as a justification for his otherwise criminal conduct.
Young, 991 S.W.2d at 838.
Appellant argues he requested the inclusion in the jury charge of an instruction
regarding necessity. The trial court denied it and thus, Appellant contends we must find
error here if there is some evidence in the record that the omission harmed him. Appellant
asserts that because “necessity is a justification, a jury who believed his necessity
defense would be obligated to acquit Appellant of the offense of Official Oppression.
Appellant, therefore suffered harm as a result of the trial court’s erroneous denial of his
requested necessity instruction and warrants this Court’s reversal and remand.”
The State argues that because Appellant did not admit to knowledge that his
conduct was unlawful, he was not entitled to an instruction regarding the defense of
necessity and thus, the trial court did not err in omitting it. We must agree. As noted, to
be entitled to a necessity instruction, a defendant must admit both the act and the culpable
mental state and then offer necessity as a defense. Juarez, 308 S.W.3d at 399; Young,
991 S.W.2d at 838. Appellant did not do so here and thus we cannot find the trial court
erred in omitting an instruction concerning the necessity defense.
Texas Penal Code Section 9.21—Public Duty
Penal Code section 9.21 provides a generalized “public duty” defense to crimes.
That statute provides a defense if “the actor reasonably believes the conduct is required
or authorized by law.” TEX. PENAL CODE ANN. § 9.21(a). Subsection (d) provides that the
justification afforded by this section is available if the actor reasonably believes: (1) the
court or governmental tribunal has jurisdiction or the process is lawful, even though the
31
court or governmental tribunal lacks jurisdiction or the process is unlawful; or (2) his
conduct is required or authorized to assist a public servant in the performance of his
official duty, even though the servant exceeds his lawful authority. TEX. PENAL CODE ANN.
§ 9.21(d).
Appellant contends that the State’s theory of the case as well as the inclusion of
the instruction regarding the law of parties implicated the public duty instruction and the
trial court’s refusal to include it clearly harmed him.
The State argues the trial court did not err in refusing to include the requested
instruction because the requested instruction was unnecessary because it only denied
the existence of an essential element of the State’s case, i.e., Appellant’s knowledge that
his behavior was unlawful, and thus, was redundant. Further, the State asserts that even
if the trial court erred, Appellant was not harmed because the substance of the public duty
instruction was adequately covered by the jury charge as given.
We agree that Appellant was not harmed by any error in the omission of the
requested instruction because the jury charge instructed the jury that it must find each of
the essential elements of the offense with which Appellant was charged beyond a
reasonable doubt. One of those elements was Appellant’s knowledge that his conduct
was unlawful. The jury charge clearly instructed the jury what it was required to find and
thus, the lack of a specific public duty instruction did not harm Appellant. A trial court
may refuse to give requested instructions where the instructions given by the court are
adequate and fully protect the rights of the accused. Tovar v. State, 165 S.W.3d 785,
792 (Tex. App.—San Antonio 2005, no pet.).
32
Duties and Powers of Peace Officers
Appellant asserts the trial court erred by failing to instruct the jury regarding the
duties and powers of peace officers. Article 2.13 of the Texas Code of Criminal Procedure
sets forth the duties and powers of peace officers. Subsection (a) provides, “It is the duty
of every peace officer to preserve the peace within the officer’s jurisdiction. To effect this
purpose, the officer shall use all lawful means.” TEX. CODE CRIM. PROC. ANN. art. § 2.13
(West 2020).
At trial, Appellant requested that the trial court include the following instruction to
the jury:
DUTIES AND POWERS OF PEACE OFFICERS
It is the duty of every peace officer to preserve the peace within the officer's
jurisdiction. To effect this purpose, the officer shall use all lawful means.
The officer shall:
1. In every case authorized by the provisions of this Code, interfere without
warrant to prevent or suppress crime; and
2. Arrest offenders without warrant in every case where the officer is
authorized by law, in order that they may be taken before the proper
magistrate or court and be tried.
On appeal, Appellant argues the trial court should have included his requested
instruction concerning the duties and powers of peace officers because issues relating to
the powers and duties of peace officers was discussed in great detail and at length during
the trial. Appellant contends that the concepts and contents of article 2.13 were discussed
during voir dire and referenced numerous times during trial, thus entitling him to his
requested instruction.
33
The State disagrees, arguing that the instruction given by the trial court accurately
stated the law applicable to Appellant’s case and did so more specifically than the
requested instruction. The court’s charge included instructions regarding circumstances
under which a police officer may arrest a person without a warrant and provided
necessary definitions applicable to the duties and powers of a peace officer. Appellant’s
requested instruction would have been redundant and thus, the exclusion was not error.
As noted, a trial court may refuse to give requested instructions where the instructions
given by the court are adequate and fully protect the rights of the accused. See Tovar,
165 S.W.3d at 792.
Definition of Probable Cause and Collective Knowledge
The court’s charge to the jury included the following instructions:
A police officer may arrest without a warrant:
1. persons found in suspicious places and under circumstances which
reasonably show that such persons have been guilty of some felony,
breach of the peace, public intoxication, or threaten [sic], or are about to
commit some offense against the laws; or
2. when an offense is committed in his presence or within his view.
Where an arrest may be lawfully made without a warrant, the police officer
making the arrest is justified in adopting all measures that he might adopt
in cases of arrest under a warrant, except that a police officer making an
arrest without a warrant may not enter a residence to make the arrest
unless:
1. a person who resides in the residence consents to the
entry; or
2. exigent circumstances require that the police officer
making the arrest enter the residence without the consent
of a resident or without a warrant.
34
Appellant requested that the trial court include in its charge to the jury the following
definitions:
PROBABLE CAUSE
A Peace Officer may arrest, detain or seize a person when the facts and
circumstances within the arresting officer's personal knowledge, or of which
he has reasonable trustworthy information, are sufficient to occasion a
person of reasonable prudence to believe an offense has been committed.
Probable cause is determined on the basis of facts available to the officer
at the time of the arrest, and an officer may be shielded from liability even if
he “reasonably but mistakenly conclude[s] that probable cause is present.
Probable cause for a warrantless arrest requires that, at the moment the
arrest is made, the facts and circumstances within the arresting officer's
knowledge or of which he has reasonably trustworthy information are
sufficient to warrant a reasonable belief that the person arrested had
committed or was committing an offense.
COLLECTIVE KNOWLEDGE
Probable cause may be supported by the collective knowledge of law
enforcement personnel may rely on the totality of facts available to them in
establishing probable cause.
As a general rule, terms do not need to be defined in the charge if they are not
statutorily defined. Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003).
However, terms which have a technical legal meaning may need to be defined. Id.(citations mitted). This is particularly true when there is a risk that the jurors may arbitrarily
apply their own personal definitions of a term or where a definition of the term is required
to assure a fair understanding of the evidence. Id. (citation omitted). Probable cause and
collective knowledge are two such terms that are not statutorily defined.
Appellant argues that the trial court erred in denying his request to include in the
charge to the jury definitions of probable cause and collective knowledge. He contends
35
that the cornerstone of this case was whether he knew the officers had probable cause
to arrest Nutt. As such, he argues, “[f]ailure to include the requested definition of Probable
Cause clearly caused harm to Defendant’s ability to present a defense and ensure all
jurors were applying the same legal standards and not their own arbitrary beliefs.” He
argues also that the State’s expert witnesses discussed the collective knowledge doctrine
and thus, he was entitled to his requested definition of that term.
The State argues that the instructions given by the trial court accurately stated the
applicable law and determinations of probable cause and collective knowledge were not
required by the jury to determine whether Appellant was guilty of the offense for which he
was charged. Thus, there was no risk that jurors would apply their own personal definition
and the jury did not need those definitions to understand the evidence or to make a
decision. See e.g., Middleton, 125 S.W.3d at 454 (discussing necessity of definition of
“probable cause”).
We agree with the State’s position that the trial court’s instructions to the jury
accurately set forth the applicable law such that the jurors did not need to apply their own
personal definitions, nor was a definition of either term necessary to the jury’s
understanding of the evidence.
Exigent Circumstances
Appellant next makes the same argument with regard to his complaint that the trial
court erred in failing to include his requested definition of the term “exigent
circumstances.” The trial court included in its charge to the jury the definition of “exigent
circumstances.” It stated, “Exigent circumstances that would justify a warrantless
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intrusion by police officers into a residence are where the officer is in immediate and
continuous pursuit of a person who is attempting to evade lawful arrest or detention.”
Appellant asked the court to add to the definition that “A suspect may not defeat
an arrest which has been set in motion in a public place by the expedient of escaping to
a private place.” The trial court denied that request and Appellant now argues that a
definition of the term was necessary to ensure that all jurors determined the issue of
probable cause and arrest based on the same legal definition or standard and that they
not utilize an arbitrary definition or standard. Appellant argues he was harmed by this
omission.
The State again asserts that the instruction given by the court accurately stated
the law applicable to the case and did so more specifically than the addition requested by
Appellant. See Tovar, 165 S.W.3d at 792. We agree. The requested instruction was not
specifically related to exigent circumstances and was not required in this case.
Accordingly, the trial court did not err in omitting the requested definition. Having resolved
each subpoint against Appellant with regard to requested jury instructions and definitions,
we overrule his fifth issue.
ISSUE SIX—MOTION TO QUASH
The amended indictment in this case was a single-count indictment comprised of
three separate paragraphs. Appellant filed a motion to quash the indictment, alleging that
none of the paragraphs properly alleged an offense against him. Specifically, as to
paragraph II, Appellant argued the State “has failed to allege an ‘unlawful act,’ rather
simply stating, ‘his right not to be deprived of his liberty without due course of law,’ which
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is neither criminal or tortious.” Appellant contended that language “falls short of
constitutional muster and [is] an overly broad characterization” such that it cannot be the
underlying unlawful conduct supporting an allegation of official oppression. The trial court
denied Appellant’s motion.
Through his sixth issue, Appellant asserts the trial court erred in denying his motion
to quash the indictment. He argues the portion of the indictment alleging the offense of
official oppression did not provide Appellant with sufficient notice. The State disagrees,
arguing the indictment tracked the applicable statutory provision and provided Appellant
with adequate notice.
In considering a trial court’s ruling on a motion to quash an indictment we employ
a de novo standard of review. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
A criminal defendant is entitled to notice under both the United States and Texas
Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. To satisfy this notice
requirement, an indictment must be “specific enough to inform the accused of the nature
of the accusation against him so that he may prepare a defense.” Lawrence v. State, 240
S.W.3d 912, 916 (Tex. Crim. App. 2007) (citing Moff, 154 S.W.3d at 601). An indictment
is usually sufficient so long as it tracks the language of the penal statute that itself satisfies
the constitutional requirement of notice. Lawrence, 240 S.W.3d at 916 (citing State v.
Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)). An indictment does not have to
include facts that “are merely evidentiary in nature.” Smith v. State, 309 S.W.3d 10, 14
(Tex. Crim. App. 2010) (citing Mays, 967 S.W.2d at 406).
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Appellant was charged with the offense of official oppression under section
39.03(a) of the Texas Penal Code. That provision provides, in relevant part:
(a) A public servant acting under color of his officer or employment commits
an offense if he:
(1) intentionally subjects another to mistreatment or to arrest,
detention, search, seizure, dispossession, assessment, or
lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or
enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful[.]
TEX. PENAL CODE ANN. § 39.03(a).
As previously noted, Appellant was charged via a three-paragraph grand jury
indictment. The State proceeded to trial only on Paragraph II which read: on or about the
2nd day of May, 2017, Appellant did “then and there, knowing his conduct was unlawful,
intentionally deny or impede Cory Nutt in the exercise or enjoyment of a right, namely, his
right not to be deprived of his liberty without due course of law, by detaining, seizing and
arresting Cory Nutt . . . .” As such, the indictment charging Appellant with official
oppression tracked the statutory language set forth in section 39.03(a)(2) of the Penal
Code. See TEX. PENAL CODE ANN. § 39.03(a)(2). It also provided the manner and means
of the unlawful conduct, i.e., “by detaining, seizing and arresting Nutt.” In so specifying,
it provided Appellant sufficient notice of the charge against him. Lawrence, 240 S.W.3d
at 916. This is true even though the manner and means includes language set forth in
section 39.03(a)(1) of the statute. The fact that the manner and means happens to be
the same conduct as that set forth in subsection (a)(1) does not indicate the State failed
to provide adequate notice. The manner and means could have been anything that rose
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to the level of unlawful conduct. Here, it just happened to be the same conduct set forth
in another section of the official oppression statute.
Nevertheless, Appellant argues that to prepare his defense, the indictment should
have included notice of the conduct alleged to be unlawful. The Penal Code defines
“unlawful” as “criminal or tortious or both and includes what would be criminal or tortious
but for a defense not amounting to justification or privilege.” TEX. PENAL CODE ANN. §
1.07(a)(48) (West 2020). While the State was indeed required to prove the acts in which
Appellant engaged that constituted unlawful conduct, it was not required to include those
in the indictment. Those acts were “merely evidentiary in nature.” Smith, 309 S.W.3d at
14. The record before us includes ample evidence of Appellant’s acts that amounted to
unlawful conduct from which the jury was free to find him guilty. The State was not,
however, required to plead those evidentiary facts in its indictment. Accordingly, we find
the trial court did not err in denying Appellant’s motion to quash the indictment and we
overrule this issue.
ISSUE SEVEN—MOTION TO ELECT AND QUASH PORTION OF INDICTMENT
On the morning of trial, Appellant filed a motion requesting that the court find
Paragraph II of the amended indictment improperly joined two offenses into a single
charge and he asked the court to “sever” the charges, to direct the State to elect the
charge on which it intended to proceed, and to “order the State to amend consistent with
that election.” The trial court heard arguments of the parties and thereafter denied
Appellant’s motion. Via his last appellate issue, Appellant argues the trial court erred in
denying his motion to elect and quash portions of the amended Count I, and Paragraph
II of the indictment.
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The State argues it did not improperly join two offenses into a single charge and
that there was no reason to sever or elect the charges because the State proceeded only
on one charge, that set forth in Paragraph II.
Paragraph II of the amended indictment reads in pertinent part:
Defendant did then and there, knowing his conduct was unlawful,
intentionally deny or impede Cory Nutt in the exercise or enjoyment of a
right, namely, his right not to be deprived of his liberty without due course
of law, by detaining, seizing and arresting Cory Nutt . . . .
The relevant statute provides as follows:
OFFICIAL OPPRESSION
(a) A public servant acting under color of his office or employment commits
an offense if he:
(1) intentionally subjects another to mistreatment or to arrest,
detention, search, seizure, dispossession, assessment,
or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or
enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful; or
(3) intentionally subject another to sexual harassment.
TEX. PENAL CODE ANN. § 39.03.
First, we note, as did the State, that Appellant’s motion seems to object to the form
and substance of the indictment. If so, it was untimely as it was filed the morning of the
first day of trial. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (providing “If the defendant
does not object to a defect, error, or irregularity of form or substance in an indictment or
information before the date on which the trial on the merits commences, he waives and
forfeits the right to object to the defect, error, or irregularity and he may not raise the
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objection on appeal or in any other postconviction proceeding. Nothing in this article
prohibits a trial court from requiring that an objection to an indictment or information be
made at an earlier time in compliance with Article 28.01 of this code”).
However, even if it was not such an objection but rather truly was a motion to sever
or elect, we cannot find the trial court erred in denying Appellant’s motion. Paragraph II
did not combine two offenses. Rather, it tracked the statutory language set forth in section
39.03(2) of the Penal Code and alleged that the manner and means of the unlawful
conduct was by detaining, seizing, and arresting Nutt. As we discussed in our analysis
of Appellant’s sixth issue, the manner and means could have been any act if the State
was able to prove it was unlawful. The alleged manner and means just happened to be
the same as the acts set forth in section 39.03(a)(1) of the Penal Code. This did not,
however, mean the State “co-mingled” the two offenses or that it otherwise improperly
charged Appellant.
Moreover, even if we assume error, it is harmless. Section 3.02 of the Texas Penal
Code provides that a defendant may be prosecuted in a single criminal action for all
offenses arising out of the same criminal episode. TEX. PENAL CODE ANN. § 3.02(a) (West
2011). If the State properly joins two offenses pursuant to section 3.02, the defendant
has the right to sever the cases into different trials, provided he timely invokes that right.
TEX. PENAL CODE ANN. § 3.04(a) (West 2011). A defendant’s right to severance is
absolute and the severance is mandatory when the defendant timely requests a
severance under section 3.04(a). Kelley v. State, Nos. 07-16-00396-CR, 07-16-00397-
CR, 2017 Tex. App. LEXIS 12019, at *4 (Tex. App.—Amarillo Dec. 21, 2017, pet. ref’d)
(mem. op., not designated for publication).
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If we assume that the State joined more than one offense and if we assume the
trial court erred in denying Appellant’s motion to sever or elect, we nevertheless cannot
find Appellant was harmed. Severance error is not a structural error and is subject to
harm analysis under Texas Rule of Appellate Procedure 44.2(b). Kelley, 2017 Tex. App.
LEXIS 12019, at *5 (citing Llamas v. State, 12 S.W.3d 469, 470-71 (Tex. Crim. App.
2000)). Errors that do not affect a substantial right must be disregarded. Kelley, 2017
Tex. App. LEXIS 12019, at *5 (citing TEX. R. APP. P. 44.2(b)). A substantial right is affected
when the error had a substantial and injurious effect or influence on the jury’s verdict.
Kelley, 2017 Tex. App. LEXIS 12019, at *5 (citing King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997)). If the error did not adversely affect the defendant’s substantial
rights, then it is harmless. Kelley, 2017 Tex. App. LEXIS 12019, at *5 (citing TEX. R. APP.
P. 44.2(b); Werner v. State, 412 S.W.3d 542, 547 (Tex. Crim. App. 2013)).
We “assess harm after reviewing the entirety of the record, including the evidence,
jury charge, closing arguments, voir dire, and any other relevant information.” Kelley,
2017 Tex. App. LEXIS 12019, at *5 (citing Werner, 412 S.W.3d at 547 (citing Schutz v.
State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001)). The most important factor in
determining whether a trial court’s failure to grant severance was harmful is the overlap
in evidence that would have been admissible had the trials been severed. Kelley, 2017
Tex. App. LEXIS 12019, at *5 (citing Werner, 412 S.W.3d at 549).
Here, whether the State proceeded on a charge under section 39.03(a)(1) or
39.03(a)(2), the evidence presented at trial would have been identical. The State alleged
that Appellant’s unlawful conduct was impeding Nutt in the exercise or enjoyment of a
right by arresting him. It was irrelevant which of the sections Appellant was charged
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with—the evidence, witnesses, and arguments would have been the same. As such,
severance or election would have had no bearing on the outcome here. Accordingly, we
resolve Appellant’s final issue against him.
CONCLUSION
Having overruled each of Appellant’s issues, we affirm the judgment of the trial
court.
Patrick A. Pirtle
Justice
Do not publish.
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