Davis, Arnold Louis v. State ( 2004 )

Affirmed and Memorandum Opinion filed August 24, 2004

Affirmed and Memorandum Opinion filed August 24, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01086-CR

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ARNOLD LOUIS DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 871,605

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Arnold Louis Davis, of aggravated assault on a public servant and sentenced him to ten years= probation  and a $10,000 fine.  In four points of error, appellant claims (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by denying appellant=s requested instruction on the duties of an off-duty police officer; and (3) the trial court erred in overruling appellant=s objection to the prosecutor=s closing argument because it constituted an impermissible comment on appellant=s post-arrest silence. We affirm. 

Background

Officer Donald Sealy, a police officer with the Houston Police Department (AHPD@) Mounted Patrol, testified that he was driving his marked patrol car when he looked in his rear view mirror and saw appellant, the passenger in the car behind him, obviously mouthing profane words and gesturing at the officer with his middle finger. Officer Sealy initially ignored appellant and continued driving.  Sealy changed lanes but noticed that the car kept pace with him, even when he slowed down, and appellant continued to mouth words and make obscene hand gestures. When Sealy next stopped, the car pulled up to the left side of the patrol car.  Appellant lowered his window, leaned out of the car, and began yelling obscene words at Officer Sealy.  Sealy asked appellant what his problem was, but appellant continued to utter profanities.  When the light turned green, Officer Sealy decided to pull the car over because of appellant=s irrational behavior.

Before he could radio HPD dispatch, Sealy said appellant came towards the patrol car in a hurried motion and Sealy met appellant between the two vehicles. Sealy again asked appellant what the problem was.  Appellant began angrily cussing at the officer about his driving.  Appellant said he was going to call a sergeant. Appellant=s wife, Denise Davis, also got out of the car and appeared to make a call on a cell phone.  Sealy told appellant that, if he wanted to talk with his supervisor, they could go to a nearby police station.  Because his attempts to calm appellant down were not working, Sealy said he decided to call a supervisor.  As Sealy was getting into his patrol car, he heard appellant say, A[y]ou=re not going anywhere, you mother [expletive].@  Officer Sealy looked up, and appellant was pointing a .38 caliber revolver at the officer=s chest.  Sealy knew the gun was loaded because he saw hollow point bullets through the barrel of the gun.  When Officer Sealy moved to get out of the patrol car, appellant said, A[y]ou=re not going anywhere, you son of a [expletive].@  Sealy pushed the car door, ran down the driver=s side of the car, went around to his trunk, pulled his service revolver, and ordered appellant to put down his weapon multiple times. Sealy then called for help on his hand-held radio. 

HPD Sergeant Bernard Simien happened to drive by and noticed the stopped patrol car. He saw Officer Sealy exit his patrol car and speak to appellant and his wife; it appeared as if an argument erupted. Sergeant Simien saw Sealy walk back to the patrol car and sit down but keep one foot outside of the patrol car. Simien then saw Officer Sealy stand directly in front of appellant with both hands in the air and saw Sealy push appellant with the door of the patrol car and run.  Simien saw a gun in appellant=s hand. Simien ran across the median, pulled his weapon, announced his presence, and advised appellant to put his weapon down. After Simien twice said he was with HPD, appellant=s wife walked towards the sergeant and said she was an HPD officer.  She told him something to the effect that Officer Sealy had cut her off in traffic and that her husband was the individual pointing a gun at the officer. Appellant told Simien that he wanted to speak to a sergeant.  Simien told appellant that he was a sergeant and instructed appellant to put the weapon down.  Appellant told the sergeant he was a peace officer and displayed a badge before putting his gun away.

Appellant and his wife testified at trial and disputed much of Officer Sealy=s testimony.  They said they witnessed Officer Sealy abruptly pull in front of a car, causing the driver of the car to slam on the brakes to avoid a collision.  They decided to get descriptive information about the officer so appellant could write a complaint letter.  At the light, Officer Sealy looked at them sternly and later drove up to their car with his window open and arms flailing.  When appellant rolled his window down, it was Sealy who began cursing and it was only then that appellant directed profanities at the officer.

According to appellant=s testimony, Officer Sealy was out of control and yelling profanities when he got out of his patrol car.  Appellant and his wife said they told Sealy they were peace officers and Denise showed him her badge or identification.  Appellant said Sealy admitted that he had no reason to stop them and told them that if they wanted to talk with a sergeant they could follow him to the HPD Mounted Patrol Headquarters.  Appellant told Officer Sealy that he was not free to leave because he was being detained.  Appellant claims he did not pull his gun on Officer Sealy until the officer would not follow orders to stay where he was.  Although he did pull his revolver, appellant insists that he kept it in a high-ready position (pointed in the air with no finger on the trigger) until Sealy pulled his service revolver.  During the exchange, Denise contacted HPD.

Two people who witnessed part of the encounter testified at the trial.  One saw appellant point a gun at Officer Sealy. She did not hear appellant say anything to the officer at this time, but heard the officer tell appellant to put down his weapon.  She said that Sealy seemed calm. The other witness saw the officer and appellant engaged in a heated discussion.  He observed the officer walk to his patrol car and sit inside it, keeping one leg outside of the door, but did not see weapons being drawn.  He said he was concerned because appellant was being very abrupt and aggressive. This witness said appellant=s wife did not appear to be engaged in a very calm discussion with the officer either. In fact, he said it appeared as if she threw a tantrum at the officer=s patrol car window.

Sufficiency of the Evidence

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction of aggravated assault on a public servant.  Appellant raises two separate challenges to his conviction.  First, appellant challenges the jury=s finding of guilt because he claims the State did not prove an essential element of the charged offense, namely that Officer Sealy was lawfully discharging an official duty at the time of the alleged assault.  Second, appellant challenges the jury=s rejection of his defensive theory of justification.  Because they involve slightly different standards of review, we will consider the two challenges separately.

Finding of Guilt

In evaluating a legal-sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. 

In conducting a factual-sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, C S.W.3d BB , BB (Tex. Crim. App. Apr. 21, 2004).  We may find the verdict is factually insufficient in two ways.  Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. We must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder.  Zuniga, 2004 WL 840786, at *4.  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain, 958 S.W.2d at 407.

A person commits second-degree felony assault if he intentionally or knowingly threatens another with imminent bodily injury by using or exhibiting a deadly weapon. Tex. Pen. Code Ann. ' 22.01(a)(2) & 1.07(a)(17)(A) (Vernon 2003).  The offense is enhanced to a first-degree felony if the assault is committed against 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(b)(2). 

Here, appellant makes two attacks on the verdict.  First, he argues that, because Officer Sealy did not have reasonable suspicion to stop the car, he was committing official oppression and could not have been lawfully discharging an official duty at the time of the incident. Second, he contends that, because Officer Sealy was leaving the scene when he pulled his weapon, Sealy had already discharged his official duty.  We disagree.

Officer Sealy said he did not pull over the car merely because appellant yelled profanities at him.  Sealy said he became increasingly suspicious when the car started to pace his patrol car and mimic his actions.  The officer found the behavior irrational and feared there might be a problem in the car. Regardless, the standard to determine whether Officer Sealy was lawfully discharging an official duty is not whether he had reasonable suspicion to stop the car, but whether he was acting in his capacity as a peace officer during the incident.  Montoya v. State, 744 S.W.2d 15, 29B30 (Tex. Crim. App. 1987) (finding that whether an officer=s stop of an individual was constitutionally reasonable Ais not relevant to determining if [the officer] was acting in the lawful discharge of his duties@).  In Hughes v. State, the Court of Criminal Appeals rejected a claim that an officer is not engaged in the lawful discharge of an official duty if he is engaged in an unconstitutional stop or detention.  897 S.W.2d 285, 297B98 (Tex. Crim. App. 1994).  The court found that, because the officer was on duty, in uniform, and responding to the dispatcher=s call, he was acting in his official capacity at the time of the stop.  Id. at 298.  In this case, there is no dispute that Officer Sealy was on-duty and in uniform when he stopped appellant.  Thus, we find appellant=s challenge to the reasonableness of the stop irrelevant to the jury=s determination.

Appellant also claims that Officer Sealy discharged, by attempting to leave the scene, any official duty he might have been engaged in at the time of the incident. Here, the testimony is in conflict. Appellant and his wife said Sealy told them that he was leaving the scene and that, if they wanted to talk to a sergeant, they could follow him to Mounted Patrol Headquarters.  Sealy testified he was headed back to his patrol car to radio for assistance, not to leave the scene.  Eyewitnesses saw the officer sitting in his car but with one leg outside of the car.  The weight to be given conflicting testimony lies within the sole province of the jury, and we, as a reviewing court, must show deference to the jury=s determination.  See Cain, 958 S.W.2d at 408B09. Moreover, even assuming Officer Sealy was attempting to leave the scene as appellant suggests, he was still on duty and in uniform. That he may have been attempting to end his encounter with appellant is not determinative of whether he was lawfully discharging an official duty.

Viewing the evidence in a light most favorable to the verdict, we conclude a reasonable trier of fact could have found beyond a reasonable doubt that appellant was guilty of aggravated assault on a public servant.  Viewing the same evidence in a neutral light, we conclude the jury was also rationally justified in finding guilt beyond a reasonable doubt. The evidence is therefore legally and factually sufficient to support the verdict.

Rejection of Defensive Theory of Justification

Appellant also contests the jury=s rejection of his justification defense.  In evaluating the legal-sufficiency portion of this challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found against appellant on the defensive issue beyond a reasonable doubt.  Zuliani, 97 S.W.3d at 595.  In conducting the factual-sufficiency review, we view all the evidence in a neutral light and determine whether (1) the evidence supporting the rejection of the defense, when considered by itself, is too weak to support the rejection beyond a reasonable doubt or (2) contrary evidence, if present, is strong enough that the beyond‑a‑reasonable‑doubt standard could not be met.  Roy v. State, Nos. 14-02-00909-CR & 14-02-00910-CR, 2004 WL 1607489, at *4, C S.W.3d C, C (Tex. App.CHouston [14th Dist.] July 20, 2004, no pet. h.) (modifying the standard of review, in light of Zuniga, to evaluate a jury=s rejection of a defense).

The trial court gave the jury an instruction on the defensive theory of justification.  A peace officer, such as appellant, is justified in using force against another

when and to the degree necessary to make or assist in preventing escape after arrest, if:

(1) the actor reasonably believes the arrest or search is lawful; and

(2) before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.

Tex. Pen. Code Ann. ' 9.51(a) (Vernon 2003).  Here, appellant contends Officer Sealy did not have the authority to stop appellant because stopping a vehicle without reasonable suspicion constitutes official oppression.  Thus, appellant argues he was justified in attempting to arrest Officer Sealy and in pulling his weapon because Sealy was attempting to leave the scene.  Appellant and his wife testified that they both told Officer Sealy they were peace officers and that Denise showed Officer Sealy her badge.   Officer Sealy said neither appellant nor Denise identified themselves as peace officers and he went back to his patrol car to call for assistance rather than to leave the scene.  Further, although he recalled telling Officer Sealy he was being detained, appellant admitted he did not inform Sealy he was under arrest or explain to Sealy why he was being detained.

Although the previously-detailed accounts of Officer Sealy and appellant and his wife differ regarding what transpired before, during, and after the stop, the jury was the sole judge of all witness testimony.  See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  Accordingly, the jury could choose to accept the testimony of the Officer Sealy and disbelieve appellant=s and Denise=s testimony.  Given the testimonial evidence, the jury could have determined (1) appellant was not reasonable in his belief that he could lawfully arrest Officer Sealy; (2) appellant did not properly manifest his intent to arrest Officer Sealy; or (3) appellant failed to identify himself as a peace officer.

By its verdict, the jury found appellant was not justified in using force against Officer Sealy.  Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found against appellant on the defensive issue beyond a reasonable doubt.  Viewing the same evidence in a neutral light, we hold that the evidence, when considered by itself, is not too weak to support the implicit rejection of the defense and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met.  The evidence is therefore legally and factually sufficient to support the jury=s rejection of appellant=s justification defense.  We overrule appellant=s first and second points of error.

Jury Instruction

In his third point of error, appellant argues the trial court erred by denying an instruction on the duties and powers of an off-duty peace officer.  The proffered instruction read:

You are instructed that an off-duty peace officer who observes the commission of a crime possesses the same duties and powers as a police officer who is on-duty.

Under our law, it is the duty of every peace officer, whether on-duty or off-duty, to interfere without warrant to prevent or suppress crime, and to arrest offenders without warrant in every case where the officer is authorized by law.

It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence.  Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Ford v. State, 112 S.W.3d 788, 793 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  However, a defendant is not entitled to an instruction that is merely repetitive of others submitted by the court.  Peck v. State, 923 S.W.2d 839, 843 (Tex. App.CTyler 1996, no pet.). 

In this case, the trial court charged the jury on appellant=s justification defense.  The instructions specifically told the jury to acquit appellant if they found appellant was a peace officer and reasonably believed the force he used was immediately necessary to make or assist in making the arrest of Officer Sealy or to prevent or assist in preventing the escape of Sealy after his arrest.  Along with the statutory language of the defense, the trial court instructed the jury that Aany peace officer may arrest, without warrant, any person who commits, in the presence or view of such officer, any offense against the law.@  The jury instructions made it clear that the justification defense had to be considered by the jury and did not differentiate between an on-duty  or off-duty peace officer.  The additional instruction requested by appellant was merely duplicative of the trial court=s instruction that any peace officer may arrest someone who commits an offense in the officer=s presence.  Thus, appellant was not entitled to submission of the instruction.  We overrule his third point of error.

Comment on Post-Arrest Silence

In his fourth point of error, appellant contends the trial court erred by overruling his objection to a comment regarding his post-arrest silence.  Because such a comment cannot be viewed in isolation, we will first review facts pertinent to the prosecutor=s statement.  In this case, Sergeant Simien, the officer who happened upon the scene, made a sworn statement the day after the incident.  Appellant testified that, although his wife was asked to make a complete, sworn statement on the day of the incident, she refused to do so.  She offered only to give a Garrity statement (one that is not sworn to and cannot be used in a criminal proceeding). Appellant said that, although he talked to the HPD Mounted Patrol Officer Sergeant at the scene about what had happened, he was not given a fair chance after leaving the scene to explain his side of the story.  He would have been willing to give a statement, but no one attempted to talk with him or his attorney after the parties left the scene and went to HPD headquarters. 

During closing argument the following statements were made:

[Defense Counsel]:      Now, let=s talk about Sergeant Simien.  And I want to say first he seemed like a real nice fellow.  But he didn=t tell you the truth either . . . .[He] swore [appellant] never showed . . . [a] badge.  Never told . . . [Simien] he was a cop . . . . [but in the sworn statement Simien said] [t]he male stated that he was an officer and also displayed a gold round badge in my direction . . . . It shows you how officers get together, sit out in the conference room during a trial, circle the wagons and get their stories straight. 

. . .

[Prosecutor]:               The defendant really made a lot about Sergeant Simien.  Sergeant Simien seemCI=m not going to say he=s a liar, but you know, they must have been conniving or getting together because they=re trying to mislead you.  Simien said in his written statement that after he=s had to threaten to kill someone and put a gun on him, disarm him, he goes down. And in a statement he swears on that day what he did, the defendant, his wife.  Didn=t swear on that day what happened, but C

[Defense Counsel]:      I object to that as a comment on the right to remain silent.

[Trial Court]:               That will be overruled.  He=s speaking as to a third party.

Appellant claims the prosecutor=s comment regarding who A[d]idn=t swear on that day what happened@ was directed at him and criticized his exercise of the right to remain silent. Thus, appellant contends the trial court=s ruling violated his right to remain silent under the federal and state constitutions.  Because he has not made a distinction between the rights he is afforded under the respective constitutions, we address appellant=s point of error solely on the federal constitutional grounds.  Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999) (declining to address appellant=s arguments regarding his state constitutional rights when appellant had not made a distinction between the federal Constitution and the Texas Constitution).

The Fifth Amendment to the United States Constitution guarantees an accused the right to remain silent after arrest and prevents the prosecution from commenting on the accused=s exercise of that right.  Doyle v. Ohio, 426 U.S. 610, 618 (1976).  To violate an accused=s constitutional rights, the prosecutor=s language, viewed from the jury=s perspective, Amust be manifestly intended or of such a character that the jury would necessarily and naturally take it@ as a comment on the accused=s exercise of his right.  See Patrick v. State, 906 S.W.2d 481, 490B91 (Tex. Crim. App. 1995).  Mere indirect or implied allusions are not enough.  Id.  Furthermore, the prosecutor=s statement must be viewed in the context of the entire record. See McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).

Viewing the comment in the context of the entire record, the prosecutor=s statement could only have been referring to Simien because Simien was the focus of that part of the prosecutor=s argument.  The prosecutor was clearly addressing the attack on Sergeant Simien=s credibility by explaining that he gave a sworn statement near the time of the incident about what he (Simien), the defendant, and the defendant=s wife had done that day.  The prosecutor said, mistakenly, that Simien gave this sworn statement on the day of the incident.  Appellant objected when the prosecutor was apparently attempting to clarify that Simien A[d]idn=t swear on that day what happened,@ but that he had given a sworn statement just one day later.  We find the trial court=s interpretation comports with the evidence in the record and hold the comment was not of such a character that the jury would necessarily and naturally take it as a comment on appellant=s exercise of his Fifth Amendment right.  We overrule appellant=s fourth point of error.

Having overruled all of appellant=s points of error, we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).