Jorge Flores v. State ( 2006 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JORGE FLORES,                                                 )

                                                                              )     No.  08-04-00320-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     243rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 20030D02094)

                                                                              )

O P I N I O N

Jorge Flores appeals from his conviction for the offense of assault on a public servant.  In one issue, Appellant contends the trial court erred by refusing to submit a jury instruction on the lesser-included offense of resisting arrest. We affirm.

On the night of April 21, 2003, Mr. Vicente Duran, a security guard at the Rodeo Nightclub, received complaints that Appellant was rowdy and pushing other customers around.  Mr. Duran asked Appellant to calm down and warned him that if he did not do so, he would be asked to leave.  After further warnings, Appellant was asked to leave.  Appellant refused to leave and was Aforcefully@ escorted from the nightclub.  Once outside, Mr. Duran witnessed Appellant punch his wife in the face.  As Mr. Duran approached, Appellant left in his truck.

Moments after Appellant drove off, Mr. Duran flagged down police officer Alejandro Anaya and gave him a description of Appellant=s truck.  Officer Anaya located Appellant=s truck at a convenience store across the street from the nightclub.  After finding Appellant, Officer Anaya detained him in order to ask him questions about the earlier incident.  Appellant was uncooperative and became Acombative.@ After a struggle, Officer Anaya was ultimately able to handcuff him.  Appellant was then taken to the scene of the alleged assault for a positive identification.

As a result of his encounter with Officer Anaya, Appellant was indicted for the offense of assault on a public servant.  Appellant pled not guilty to the charge and a trial was had on the merits.  At the charge conference, Appellant requested a jury instruction on resisting arrest, but the trial court denied his request.  The jury found Appellant guilty and sentenced him to four years imprisonment.

In his sole issue, Appellant contends the trial court erred by refusing to submit an instruction regarding the lesser-included offense of resisting arrest.  Specifically, he asserts that: (1) resisting arrest is a lesser-included offense of assault on a public servant; and (2) evidence exists which establishes that if he was guilty, he was guilty only of the offense of resisting arrest.  The State responds that resisting arrest is not a lesser-included offense of assault on a public servant.  Further, the State contends that even if resisting arrest were a lesser-included offense of assault on a public servant, Appellant was not entitled to a jury instruction in this case.

In order to determine if the trial court erred in refusing Appellant=s requested instruction on resisting arrest, we apply a two‑prong test.  Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006); Heiringhoff v. State, 130 S.W.3d 117, 125 (Tex.App.--El Paso 2003, pet. ref=d).  The first prong requires us to determine whether the offense in question is a lesser-included offense of the charged offense.  Guzman, 188 S.W.3d at 188; Heiringhoff, 130 S.W.3d at 125-26. The second prong requires us to determine if there was some evidence presented that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty only of the lesser included offense.  Guzman, 188 S.W.3d at 188; Heiringhoff, 130 S.W.3d at 126.

A person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.  Tex.Pen.Code Ann. ' 22.01(a)(1), (b)(1)(Vernon Supp. 2006).  On the other hand, a person commits the offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer=s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.  Tex.Pen.Code Ann. ' 38.03(a)(Vernon 2003).

Assuming, arguendo, that resisting arrest is a lesser-included offense of assault on a public servant as charged in Appellant=s case, we turn to the second prong of our analysis to determine if there is any evidence which would permit a rational jury to find Appellant guilty of only the lesser offense.  Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005). This requires there to be some evidence from which a rational jury could acquit Appellant of the greater offense while convicting him of the lesser offense.  Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005), citing Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002).

In determining whether any evidence exists in the record which would permit a rational jury to find the defendant guilty of only the lesser included offense, anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included offense charge.  Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999); Licon v. State, 99 S.W.3d 918, 927 (Tex.App.-‑El Paso 2003, no pet.).  We review all evidence introduced at trial in order to determine whether the trial court erred in failing to instruct the jury on a lesser included offense.  Enriquez v. State, 21 S.W.3d 277, 278 (Tex.Crim.App. 2000).  Because the question is one of whether the evidence merely raises the issue, we do not consider credibility determinations or conflicts in the evidence as factors in our determination.  Hall, 158 S.W.3d at 473; Licon, 99 S.W.3d at 927.

Appellant does not dispute that he struck Officer Anaya. However, he argues that Officer Anaya received only a Avery minor injury@ that Aseemed to have been accidental rather than intentional.@  Further, the fact that he struck Officer Anaya with the back of his hand rather than a closed fist Alend[s] support to the striking being accidental.@  While not entirely clear, Appellant seems to argue that because the blow to Officer Anaya=s face was Aaccidental@ and Officer Anaya received only minor injuries, there was some evidence that Appellant was guilty only of resisting arrest and the trial court should have instructed the jury on the lesser-included offense.  We disagree.

As it relates to Appellant=s contention that Officer Anaya only received minor injuries as a result of the altercation, we note that Abodily injury@ is defined as physical pain, illness, or any impairment of physical condition.  Tex.Pen.Code Ann. ' 1.07(a)(8)(Vernon Supp. 2006).  Also, bodily injury may be proven by the victim=s testimony that he suffered physical pain. Lane v. State, 763 S.W.2d 785, 786‑87 (Tex.Crim.App. 1989).  While Officer Anaya may not have gone to a hospital or been examined by a doctor; he was examined by an EMS technician at the scene.   Moreover, bodily injury may encompass even relatively minor physical contact although something more than mere offensive touching is required.  Lane, 763 S.W.2d at 786-87.  In this case, Officer Anaya stated that the force of the blow caused Apain to [his] face@ and he testified that the blow made his Ateeth rattle.@

Officer Anaya testified that on the night of the incident, he was traveling in a marked police vehicle and wearing a police uniform. He stated that he attempted to question Appellant in reference to a family violence investigation.  He testified that Appellant was uncooperative and had to be physically placed against the police car to be searched for weapons.

Appellant refused to let Officer Anaya pat him down for weapons and repeatedly pushed his body off of the police car at one point striking Officer Anaya in the chest with his elbow.^[1]  Officer Anaya then wrestled Appellant to the ground.  While face-down on the ground, Appellant continued to be uncooperative by trying to push himself up.  At some point, Appellant managed to turn himself over and push Officer Anaya off. Appellant then began swinging his arms at Officer Anaya.  Officer Anaya testified that Appellant swung at him but he was able to dodge the direct blow.  However, he stated that he was struck on the chin by the back of Appellant=s hand Aon the way back, on the recoil.@  For clarification, the State asked Officer Anaya A[j]ust so I have it clear, is it your testimony that [Appellant] was striking at you, and it was on his way back from that strike at you that his hand hit your chin?@ Officer Anaya responded A[r]ight.  I felt the threat was towards me, and he was swinging at me.@  After being struck by Appellant, Officer Anaya first gave him a warning and then sprayed him with Oleoresin Capsicum.  Thereafter, Officer Anaya was able to handcuff Appellant.

Even if Appellant did not intend to assault Officer Anaya, as he argues in his brief, the State could have established the indicted charge by proving that he acted either knowingly or recklessly.  See Tex.Pen.Code Ann. ' 22.01(a)(1)(Vernon 2003).  Here, Appellant struggled with Officer Anaya when Officer Anaya attempted to detain him. As a result of that struggle, Officer Anaya was struck in the face.  Whether Appellant only intended to resist his arrest or not, the evidence shows that at some point during the struggle he struck Officer Anaya with the back of his hand and Officer Anaya suffered some degree of bodily injury as a result. Thus, the force Appellant used against Officer Anaya, at the very least, recklessly caused Officer Anaya to suffer bodily injury.  See Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App. 2001); Gumpert v. State, 48 S.W.3d 450, 454 (Tex.App.‑-Texarkana 2001, pet. ref=d)(struggling, flailing about and kicking during arrest was reckless and constituted assault on a public servant because it resulted in bodily injury).

Because the force used by Appellant included striking Officer Anaya and Officer Anaya suffered bodily injury as a result, there is no evidence which would permit a rational jury to find that if Appellant were guilty of an offense, he was guilty only of the lesser-included offense of resisting arrest.  See Lofton, 45 S.W.3d at 652; Gumpert, 48 S.W.3d at 454.  Accordingly, the trial court did not err in refusing Appellant=s request for a jury instruction on the lesser-included offense of resisting arrest.  Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

September 21, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)

---

^[1] Officer Anaya stated that he was wearing a bullet-proof vest.