Gregory T. Josefsberg v. State ( 2013 )

Affirmed and Memorandum Opinion filed June 25, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00613-CR
GREGORY T. JOSEFSBERG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Cause No. 1816811
MEMORANDUM OPINION
A jury convicted appellant, Gregory T. Josefsberg,1 of the misdemeanor
offense of interference with public duties, and the trial court assessed punishment
at 180 days’ confinement in county jail, but suspended his sentence and placed him
on community supervision for two years. Appellant challenges his conviction in
six issues, arguing that the statute under which he was convicted is
1
Appellant is an attorney who represented himself both at trial and on appeal.
unconstitutionally void for vagueness and that the evidence is insufficient to
support his conviction. We affirm.
BACKGROUND
Appellant, a family law attorney, appeared for docket call at around 9:30
a.m. on March 20, 2012, in the 247th Civil District Court in Harris County, Judge
Bonnie Hellums presiding. After answering the docket call, appellant left the
courtroom and went outside into the hallway to speak with his client and wait to be
called back into the courtroom for trial. His opposing counsel, Don Cahilly, was
also outside the courtroom speaking to Cahilly’s client. Two other attorneys, Eric
McFerren and Katrina Griffith, were in the hallway that morning and testified at
appellant’s trial. There were numerous other people outside the courtroom in the
hallway that morning; witnesses testified that there were anywhere from fifty to
one hundred people in the hallway.
That particular morning, Judge Hellums had forty to fifty cases on her
docket, with around fifty to sixty people in her courtroom. It became noisy outside
the courtroom and that noise interfered with Judge Hellums’ ability to conduct
business inside the courtroom. As was her usual practice, she sent her bailiff,
Harris County Sheriff Office (HCSO) Deputy Mark Thierry, into the hallway
outside her courtroom to ask people to move away from the courtroom doors and
to keep their voices down. According to witnesses, Deputy Thierry came into the
hallway and asked the people outside the courtroom, including appellant, to move
down the hallway away from the courtroom doors.2 Other than appellant, everyone
began moving away from the doors.
2
Judge Hellums testified that she directed Deputy Thierry to step into the hallway and
move people away from the doorway. Thierry went into the hallway twice that morning to clear
the courtroom doorway area, and the altercation between appellant and the deputy arose the
second time the deputy went into the hallway. Deputy Thierry testified that Judge Hellums
2
Deputy Thierry asked appellant to move away from the doorway to the
courtroom; appellant responded that the deputy needed to ―ask nicely.‖ Appellant
refused to move away from the courtroom doors. Thierry told appellant that they
could ―discuss this here or go down the hallway and discuss it.‖ Appellant
continued to refuse to move away from the doorway and began to raise his voice.
Deputy Thierry attempted to escort appellant away from the courtroom doorway
and into the nearby clerk’s office, but appellant refused to cooperate. According to
various witnesses, appellant ―resisted‖ Thierry by ―chest bumping him,‖3 ―planting
his feet,‖ ―trying to escape from the [d]eputy’s grasp,‖ and beginning to ―flail his
arms around.‖ Appellant also shouted for help and yelled, ―Call 911.‖
Deputy Thierry explained that when he tried to move appellant away from
the crowd to talk to him, appellant became combative. According to Thierry, he
attempted to escort appellant around the corner from the courtroom to the clerk’s
office to ―restrain him.‖ When Thierry opened the door to the clerk’s office,
appellant went ―limp‖ and fell to the ground, pulling Thierry down on top of him.
During the fall, Thierry was struck in the arm with what was later found to be an
ink pen. After Thierry fell on top of appellant, Thierry was able to turn appellant
onto his stomach and handcuff him.
Appellant was arrested and charged by information with the offense of
interference with public duties. The State alleged that appellant
on or about MARCH 20, 2012, did then and there unlawfully with
criminal negligence, namely PULLING . . . M. THIERRY TO THE
FLOOR, interrupt, disrupt, impede and interfere with M. THIERRY, a
directed him to clear the hallway the first time, but that she did not instruct him to clear the
hallway the second time.
3
Deputy Thierry did not recall appellant ―chest bumping‖ him but stated that appellant
―got too close‖ to him.
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peace officer, while M. THIERRY was performing a duty and
exercising authority imposed and granted by law.
A jury found appellant guilty as charged, and the trial court sentenced him to 180
days’ confinement in county jail. The trial court suspended his sentence and
placed him on community supervision for two years. Appellant filed a motion for
new trial, which was overruled by operation of law. This appeal followed.
CONSTITUTIONALITY OF STATUTE
In his first issue, appellant asserts that the statute under which he was
convicted, Texas Penal Code section 38.15, is unconstitutionally vague. This
statute provides, in pertinent part, ―A person commits an offense if the person with
criminal negligence interrupts, disrupts, impedes, or otherwise interferes with . . . a
peace officer while the peace officer is performing a duty or exercising authority
imposed or granted by law. . . .‖ Tex. Penal Code § 38.15(a)(1).
Appellant did not challenge the constitutionality of this statute in the trial
court. See Tex. R. App. P. 33.1(a)(1) (requiring that, to preserve an issue for
appeal, the record must show that the complaint was made to the trial court).
Appellant moved for a directed verdict at the close of the State’s case, but he did
not complain or assert that Penal Code section 38.15 was unconstitutional of. See
id.; see also Freeman v. State, 340 S.W.3d 717, 730 (stating that the appellant did
not preserve his constitutional challenge to Texas capital murder statute by failing
to raise issue before trial court). Appellant also failed to challenge the
constitutionality of this statute in his motion for new trial. Appellant waived this
complaint.
Moreover, appellant’s vagueness challenge rests on the definition of the
culpable mental state for this offense, criminal negligence: ―Who knows what the
State will argue in opposition to the argument that the statute that defines criminal
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negligence is void for vagueness. Their response is eagerly awaited.‖ A person is
criminally negligent
with respect to circumstances surrounding his conduct or the result of
his conduct when he ought to be aware of a substantial and
unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of care that
an ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint.
Tex. Penal Code § 6.03(d). The Court of Criminal Appeals of Texas has already
determined that this statute is not unconstitutionally vague. See Phillips v. State,
588 S.W.2d 378, 381 (Tex. Crim. App. 1979) (en banc) (op. on reh’g) (overruling
constitutional vagueness challenge to criminal negligence definition and
concluding that the definition of criminal negligence ―adequately describes the
prohibited conduct and gives proper notice of the conduct forbidden‖).
Appellant also fleetingly complains that section 38.15 is unconstitutional
because it ―fails to be sufficiently definite to avoid chilling protected expression‖4
and ―fails to establish determinate guidelines for law enforcement.‖ Both of these
challenges to this statute have been previously rejected by this court in Duncantell
v. State. 230 S.W.3d 835, 844, 846 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (holding that conduct that ―interrupts, disrupts, impedes, or interferes with a
peace officer performing a duty imposed by law is not expressive conduct
protected by the First Amendment‖ and concluding that the statute adequately
details the prohibited conduct such that it is not relegated to (a) the subjective
4
Appellant couches this complaint as a constitutional vagueness challenge. However, a
challenge that a statute, in addition to proscribing activities that are constitutionally forbidden,
sweeps within its coverage speech or conduct that is protected by the First Amendment, is
actually an overbreadth challenge to the constitutionality of the statute. Duncantell v. State, 230
S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
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interpretation of law enforcement officers or (b) improperly motivated selective
enforcement).
For the foregoing reasons, appellant’s first issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his second through sixth issues, appellant challenges the sufficiency of the
evidence to support his conviction. As noted above, appellant was charged by
information with ―unlawfully with criminal negligence, namely PULLING . . . M.
THIERRY TO THE FLOOR, interrupt[ing], disrupt[ing], impede[ing] and
interfere[ing] with M. THIERRY, a peace officer, while M. THIERRY was
performing a duty and exercising authority imposed and granted by law.‖
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the conviction and determine, based on that evidence
and any reasonable inferences from it, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The jury is the exclusive judge of the credibility of witnesses and the weight to be
given their testimony. See Isassi, 330 S.W.3d at 638. Further, we defer to the
jury’s responsibility to fairly resolve or reconcile conflicts in the evidence, and we
draw all reasonable inferences from the evidence in favor of the verdict. Id.
We address appellant’s third and sixth issues first, in which he challenges
the sufficiency of the evidence regarding the allegations related to Deputy Thierry.
In his third issue, appellant asserts that there is insufficient evidence to establish
that Deputy Thierry was a peace officer. In issue six, appellant challenges the
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sufficiency of the evidence to support the jury’s finding that Thierry was
performing a duty or exercising authority imposed and granted by law.
The term ―peace officer‖ includes sheriffs and their deputies. See Tex. Code
Crim. Proc. art. 2.12(1). Deputy Thierry testified that he had been employed by
the HCSO for twenty-three years. He testified that on the date of the incident, he
was assigned to the 247th District Court as a bailiff. He explicitly testified that he
was a ―peace officer‖ with the HCSO. His former supervisor, HCSO Sergeant
John Wong, described various rotations for HCSO deputies, including assignments
to the court division as bailiffs.
Viewing this evidence in the light most favorable to the jury’s verdict, we
conclude that a rational fact finder could have found that Thierry was a peace
officer beyond a reasonable doubt. See id.; see also Deltenre v. State, 808 S.W.2d
97, 99–101 (Tex. Crim. App. 1991) (noting that ―sheriffs and their deputies‖ are
peace officers and distinguishing a case in which evidence was sufficient to
establish jailer was peace officer based on testimony that jailer was a deputy
sheriff, Eickenhorst v. State, 662 S.W.2d 622 (Tex. App.—Houston [14th Dist.]
1983, pet. ref’d), and one in which evidence was insufficient based on testimony
that jailer was neither a certified peace officer nor a deputy sheriff, Deltenre v.
State, 776 S.W.2d 807, 808 (Tex. App.—Fort Worth 1989), aff’d by Deltenre, 808
S.W.2d at 98). Accordingly, we overrule appellant’s third issue.
Regarding evidence that Thierry was performing a duty or exercising
authority imposed or granted by law at the time of the incident, appellant argues,
several witnesses presented evidence concerning the duties of Deputy Thierry in
his capacity as a bailiff. Judge Hellums testified that, on the morning of March 20,
2012, she instructed Thierry to go into the hallway and move people away from the
courtroom doorway. Judge Hellums described Thierry’s job duties as follows:
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―His job is to protect me and to protect the attorneys in the courtroom and to help
with the smooth administration of justice.‖ She stated that his duties involved
giving directions both inside and outside the courtroom. Judge Hellums testified
that one of her standing morning announcements is that if anyone needs to talk,
they should step outside the courtroom and move to the left or to the right, but
should not stand right outside the courtroom because noise travels into the
courtroom and makes it very difficult to hear testimony. She stated that Deputy
Thierry is tasked with enforcing that order.
In her testimony, Associate Judge Meca Walker of the 247th District Court
made reference to section 21.001 of the Texas Government Code, entitled
―Inherent Power and Duty of Courts,‖ to the jury. This statute provides that a court
has all powers necessary for the exercise of its jurisdiction, is required to conduct
proceedings in an orderly and expeditious manner, and is required to control the
proceedings so that justice is done. Tex. Gov’t Code § 21.001(a), (b). Associate
Judge Walker testified that when she asks the bailiff to ―quiet things down‖ outside
the courtroom so that she may conduct business inside the courtroom, she is
operating under the authority of this statute. Additionally, attorney Katrina Griffith
testified she is familiar with family courts and that Deputy Thierry was performing
his duty by following orders from Judge Hellums at the time of the offense.
Deputy Thierry testified that his duties as a bailiff included ―[c]are, custody,
and control.‖ He explained that it is his job to take care of staff and people in the
courtroom, as well as to control the courtroom and ―keep it orderly.‖ According to
Thierry, he routinely goes into the hallway at the behest of Judge Hellums to ask
people to keep the noise down because it is interfering with proceedings in the
courtroom. Thierry stated, ―As a peace officer, particularly in the Harris County
Sheriff’s Department, my duties do not stop at a wall or window. . . [I]t is my job
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to react at any and every offense that I see no matter if it’s in the building or in the
street.‖
Considering this evidence in the light most favorable to the jury’s verdict, a
rational juror could have determined that Deputy Thierry was performing a duty or
exercising authority imposed and granted by law at the time that appellant
committed this offense. See id.; cf. Berrett v. State, 152 S.W.3d 600, 604–05 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d) (concluding sufficient evidence
supported the appellant’s conviction for interference with public duties where there
was evidence that officer was exercising authority imposed or granted by law).
Thus, we overrule appellant’s sixth issue.
In his second, fourth, and fifth issues, appellant asserts that the evidence is
insufficient to support those allegations related to his actions. In issue two, he
challenges the sufficiency of the evidence to support the finding that he was
criminally negligent. Appellant provides a single legal authority in the argument
section of his brief in support of this issue: a citation to Marbury v. Madison, 5
U.S. 137 (1803). Although this landmark decision certainly informs of both the
relationship between statute and constitution and our role to uphold the
constitution, it provides no guidance on the issue of whether appellant’s behavior
was criminally negligent. Thus, he has waived this issue by failing to properly
brief it. See Tex. R. App. P. 38.1(i) (―The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record.‖).
Further, the State alleged that appellant was criminally negligent by pulling
Deputy Thierry to the floor. Appellant challenges the sufficiency of the evidence
to support the jury’s finding that he pulled Thierry to the floor in his fourth issue;
thus issues two and four are intertwined. Deputy Thierry testified that appellant
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purposefully pulled him to the ground by ―going limp.‖ He described appellant’s
behavior as follows: ―As I opened the door [to the clerk’s office] he throws
himself on the ground[,] pulling me on top of him.‖ Although appellant asserts
that the testimony of an employee of the clerk’s office, Raven Hubbard, conflicted
with Thierry’s, it is the jury’s responsibility to fairly resolve or reconcile any
conflicts in the evidence. See Isassi, 330 S.W.3d at 638. Moreover, Hubbard
testified that she believed appellant purposefully fell down. She agreed that
appellant ―went limp‖ and that Deputy Thierry ―fell on him.‖
Although appellant testified that Thierry threw him to the ground, the jury
was entitled to disbelieve appellant’s testimony and to believe Deputy Thierry’s
testimony. See id. Indeed, Thierry’s version of the event finds some support in
Hubbard’s description of the incident. And, Thierry’s testimony established that
appellant deliberately fell to the ground, pulling Thierry down with him. Viewing
the evidence in the light most favorable to the verdict, we conclude that a rational
fact finder could have concluded, beyond a reasonable doubt, that appellant pulled
Deputy Thierry to the floor. Further, this evidence is sufficient to establish that
appellant acted, at a minimum, with criminal negligence. See Tex. Penal Code §
6.02(d), (e) (stating that ―proof of a higher degree of culpability than that charged
constitutes proof of the culpability charged‖ and that an intentional mental state is
of a higher degree of culpability than a criminally negligent mental state); cf. Boyd
v. State, 217 S.W.3d 37, 43 (Tex. App.—Eastland 2006, pet. ref’d) (holding that
evidence was legally sufficient to support conviction for interference with public
duty because jury could infer from the appellant’s act in pulling away from officer
who was trying to investigate possible noise violation that the appellant
intentionally and knowingly impeded and interfered with the officer’s
investigation).
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Accordingly, we overrule appellant’s second and fourth issues.
In appellant’s fifth issue, he contends that the State failed to present
sufficient evidence that pulling Deputy Thierry to the floor interrupted, disrupted,
impeded, and interfered with him. But the jury was charged that it could find
appellant guilty of this offense if it determined appellant interrupted, disrupted,
impeded, or interfered with Deputy Thierry’s duties by pulling him to the floor. 5
The jury was entitled to consider all the evidence discussed above. This evidence,
viewed in the light most favorable to the verdict, establishes that appellant’s
behavior was very disruptive to Deputy Thierry while he was performing his duty
of keeping the courtroom area orderly and quiet during court proceedings. Not
only was appellant verbally combative with the deputy, but he refused to follow
Thierry’s instructions, resisted detention, and physically pulled Thierry to the
ground. In the process of pulling Thierry to the ground, Thierry was injured by
being stabbed with a pen.
After reviewing all of the evidence in the light most favorable to the
conviction, we conclude that a rational fact finder could have found beyond a
reasonable doubt that appellant’s actions in pulling Thierry to the floor interrupted,
disrupted, impeded, or interfered with Deputy Thierry’s performance of his duties.
See Isassi, 330 S.W.3d at 638; cf. Barnes v. State, 206 S.W.3d 601, 605–06 (Tex.
Crim. App. 2006) (concluding evidence was sufficient to support conviction for
interference with public duties where appellant moved her vehicle forward during a
traffic stop, disobeyed officer’s commands to keep her hands visible during the
stop, and shouted to her child to ―run‖); Boyd, 217 S.W.3d at 43 (explaining that
jury could infer from appellant’s pulling away from officer that he intentionally
5
The jury charge tracks the disjunctive language of the statute. See Tex. Penal Code §
38.15(a).
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and knowingly impeded the officer’s investigation); Berrett, 152 S.W.3d at 604–05
(holding that defendant’s action of repeatedly moving his arm out of officer’s
reach to prevent officer from placing him in handcuffs was a voluntary action that
interfered with the officer’s duty).
For these reasons, we overrule appellant’s fifth issue. Having overruled all
six of appellant’s issues, we affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Frost, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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