Jacob Wilson, III v. State ( 2018 )

AFFIRMED as MODIFIED; Opinion Filed October 17, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01138-CR
JACOB WILSON, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 17-90023-422-F
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Evans
Jacob Wilson appeals his conviction for assault of a public servant. The trial court assessed
punishment at five years’ imprisonment. On appeal, appellant contends that the evidence is
insufficient to support the conviction. The State argues that the evidence is sufficient to support
the conviction and requests that we modify the judgment to reflect that appellant pled “not guilty”
to the offense. As modified, we affirm the trial court’s judgment.
BACKGROUND
In January, 2017, Kendrick Johnson was employed as a police officer with the University
of Texas at Dallas. Johnson testified that he had been a certified police officer since December,
2013. Prior to his employment with the University of Texas, Johnson worked for the DART
(Dallas Area Rapid Transit) Police Department.
On January 28, Johnson was off duty and shopping with his wife at a Lowe’s store in
Forney. While they were in the checkout line, they noticed appellant walk past them towards the
exit carrying two boxes of merchandise. When the alarms sounded, Johnson heard the cashier tell
appellant to stop and saw appellant starting to “trot” as he headed into the parking lot. Johnson
believed appellant was stealing the merchandise and chased after him while shouting at appellant
that he was a police officer and “to stop.” When Johnson caught up with appellant and grabbed
him, appellant dropped the boxes and they both fell to the ground. Johnson again announced that
he was a police officer and that appellant needed to stop. After they got to their feet, appellant
told Johnson that he was going to shoot him. Johnson grabbed appellant’s left arm and told
appellant that he was a police officer and that he was under arrest. Appellant resisted but
eventually Johnson was able to get him on the ground and get on top of his body. While Johnson
attempted to restrain appellant on the ground, appellant reached up and struck Johnson’s face with
a closed fist. The blow busted Johnson’s lip, and caused it to swell.
Several other people witnessed Johnson’s scuffle with appellant. Nick Richter, another
customer waiting in the checkout line, saw appellant walk by him carrying several boxes out the
door. Richter saw Johnson chasing after him screaming that he was a policeman and that he needed
to stop. Richter reacted to the situation by dropping “his things” and running out to the parking
lot. He heard appellant telling Johnson that he had a gun and was going to shoot him. Richter
assisted Johnson in his attempt to detain appellant by getting on top of appellant and holding him
down. At Johnson’s request, Richter called 911 and relayed information to the dispatcher which
indicated that an officer needed assistance. Three other witnesses also assisted Johnson in
detaining appellant by standing on appellant’s arm and kneeling on his legs. Forney police arrived
and arrested appellant.
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ANALYSIS
In appellant’s sole issue on appeal, appellant contends that the evidence is legally
insufficient to support the conviction. In reviewing the sufficiency of the evidence, we view all
the evidence in the light most favorable to the verdict, and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
We assume the fact-finder resolved conflicts in the testimony, weighed the evidence, and drew
reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). We defer to the trier of fact’s determinations of witness credibility and
the weight to be given their testimony. Brooks, 323 S.W.3d at 899.
A person commits the offense of assault if he intentionally, knowingly, or recklessly causes
bodily injury to another. TEX. PENAL CODE ANN. §§ 22.01(a)(1) (West Supp. 2017). When a
person commits assault against a person he knows is a public servant lawfully discharging an
official duty, the offense is a third degree felony. Id. at § 22.01(b)(1). Appellant does not dispute
that the evidence is sufficient to prove that he intentionally caused bodily injury to Johnson by
hitting him in the face. Rather, appellant contends that the evidence is insufficient to prove that
Johnson was lawfully discharging his duty as a peace officer or that appellant knew that Johnson
was a peace officer at the time of the assault.
A. Evidence Appellant Knew Johnson Was A Police Officer
To support his claim that the evidence is insufficient to prove that he knew Johnson was a
peace officer, appellant relies on Johnson’s testimony and the testimony of two other witnesses
that there was nothing about Johnson’s appearance that indicated that he was a police officer.
Appellant points to the evidence which showed that Johnson was dressed like any other customer
in the store and was not wearing a uniform or carrying a service weapon and did not have a badge.
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The argument that this evidence raises a question as to whether appellant actually knew that
Johnson was a police officer was presented at trial and rejected by the trial court. The record
shows that Johnson testified that he repeatedly identified himself as a police officer as he chased
appellant and then struggled to detain to him. Johnson also testified that each time he announced
that he was a police officer, appellant responded by telling Johnson that he was going to shoot him.
Further, Richter testified that after Johnson started chasing appellant, he heard Johnson screaming
repeatedly that he was a policeman. Richter also testified that during the struggle between Johnson
and appellant, he heard Johnson tell appellant repeatedly that he was a police officer and appellant
needed to stop, while appellant repeatedly told Johnson that he had a gun and was going to shoot
him.
Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier
of fact could have found beyond a reasonable doubt that appellant knew Johnson was a peace
officer when he hit Johnson in the face while Johnson was trying to detain him. See Polk v. State,
337 S.W.3d 286, 289 (Tex. App.—Eastland 2010, pet. ref’d) (evidence sufficient to prove that
defendant knew individual was peace officer despite conflicting testimony regarding whether
individual was in uniform and had identified himself as a police officer at time of assault); Lavern
v. State, 48 S.W.3d 356, 359–60 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (evidence
sufficient to prove that appellant knew individual was police officer even though officer was not
in uniform and initially denied being an officer, where evidence showed appellant accused him of
being an officer and, after a gun battle erupted, the officer repeatedly identified himself as an
officer).
B. Evidence Johnson Was Lawfully Discharging An Official Duty
Appellant also contends that Johnson did not have the authority to pursue and detain him
because the incident occurred in Kaufman County and Johnson was employed as a peace officer
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with the University of Texas at Dallas in Dallas County. Appellant argues that Section 51.203 of
the Texas Education Code governs the jurisdiction of campus peace officers and did not authorize
Johnson to pursue and detain appellant. The State argues that article 14.03 of the code of criminal
procedure authorized Johnson to act as a police officer under the circumstances of this case. We
agree with the State.
The provisions of section 51.203 of the education code limits the jurisdiction of a campus
peace officer to all counties in which there is property under the control of the institution or
circumstances in which the officer is assisting another agency, summoned by another agency to
assist them, or otherwise performing his duties for the university. See TEX. EDUC. CODE ANN.
§ 51.203(a), (b), & (c) (West Supp. 2017). Section 51.203(e) requires that any person
commissioned under section 51.203 of the education code be a certified police officer. Id.
§ 51.203(e). Article 2.12 of the code of criminal procedure defines officers commissioned under
“Subchapter E, Chapter 51, Education Code” as peace officers. TEX. CODE CRIM. PROC. ANN. art.
2.12(8) (West Supp. 2017). Section (d) of article 14.03 of the code of criminal procedure provides,
in pertinent part: “A peace officer who is outside his jurisdiction may arrest, without warrant, a
person who commits an offense within the officer’s presence or view, if the offense is a felony, a
violation of Chapter 42 or 49, Penal Code, or a breach of the peace.” TEX. CODE CRIM. PROC.
ANN. art. 14.03(d) (West Supp. 2017).
In Ramirez v. Fifth Club, Inc., the court considered the application of the jurisdictional
restrictions contained in section 51.203 of the education code for campus police officers outside
their primary jurisdiction in relation to the provisions contained in article 14.03(d) defining the
limits of a peace officer’s authority outside his own jurisdiction. Ramirez v. Fifth Club, Inc., 144
S.W.3d 574, 583 (Tex. App.—Austin 2004), rev’d in part on other grounds, Fifth Club, Inc. v.
Ramirez, 196 S.W.3d 788, 798 (Tex. 2006). The court concluded that the language of articles
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2.12(8) and article 14.03(d) of the code of criminal procedure was clear and unambiguous and did
not conflict with section 51.203 of the education code, and stated:
Section 51.203(c) of the education code describes three instances when a campus
officer at a public institution who is outside of his primary jurisdiction is “vested
with all the powers, privileges, and immunities of peace officers and may arrest any
person who violates any law of the state.” Id. § 51.203(c) (emphasis added).
Section 51.203(c) is narrowly tailored to describe the circumstances under which a
campus police officer maintains full peace-officer status, even if outside the
officer’s jurisdiction. This does not conflict with former article 14.03(d), which
empowers campus police officers—those employed by public and private
institutions alike—to make warrantless arrests for a small number of offenses
committed within the officer’s presence or view. See Former Tex. Code Crim.
Proc. Ann. art. 14.03(d). Because section 14.03(d) applies equally to campus
officers employed by public institutions and campus officers employed by private
institutions and is not in conflict with section 51.203 of the education code. . . .1
Id. at 583 (footnote omitted).
We agree with the court’s analysis of the two statutes and, as in Ramirez, conclude that the
language of article 14.03(d) of the code of criminal does not conflict with section 51.203 of the
education code. The authority cited by appellant relies on a prior version of section 51.203 and
does not address the current provisions of article 14.03(d) expanding the authority of peace officers
outside their ordinary jurisdictions. Accordingly, we now consider whether appellant’s conduct
constituted either a breach of the peace or a felony offense thereby authorizing Johnson to detain
and arrest appellant under the provisions of article 14.03(d).
An offense against a “breach of the peace” is not statutorily defined. See Andrade v. State,
6 S.W.3d 584, 590 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). However, the court of
criminal appeals has explained the term this way:
The term “breach of the peace” is generic, and includes all violations of the public
peace or order, or decorum; in other words, it signifies the offense of disturbing the
public peace or tranquility enjoyed by the citizens of a community; a disturbance
of the public tranquility by any act or conduct inciting to violence or tending to
1
The 2004 Ramirez opinion refers to the “former” article 14.03(d) because the statute in effect when the cause of
action arose was the slightly narrower version in effect prior to the 2003 amendment to the statute. See Act of May
29, 1993, 73d Leg., R.S., ch. 900, § 3.02, 2003 Tex. Gen. Laws 3586, 3715.
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provoke or excite others to break the peace; a disturbance of public order by an act
of violence, or by any act likely to produce violence, or which, by causing
consternation and alarm disturbs the peace and quiet of the community. By “peace,”
as used in this connection, is meant the tranquility enjoyed by the citizens of a
municipality or a community where good order reigns among its members. Breach
of the peace is a common-law offense. It has been said that it is not a specific
offense, yet it may be, and at times is, recognized as such by statute or otherwise;
and only when so regarded will it be considered in this article.
The offense may consist of acts of public turbulence or indecorum in
violation of the common peace and quiet, of an invasion of the security and
protection which the laws afford to every citizen, or of acts such as tend to excite
violent resentment or to provoke or excite others to break the peace. Actual or
threatened violence is an essential element of a breach of the peace. Either one is
sufficient to constitute the offense. Accordingly, where means which cause disquiet
and disorder, and which threaten danger and disaster to the community, are used, it
amounts to a breach of the peace, although no actual personal violence is employed.
Where the incitement of terror or fear of personal violence is a necessary element,
the conduct or language of the wrongdoer must be of a character to induce such a
condition in a person of ordinary firmness.
Woods v. State, 213 S.W.2d 685, 687 (Tex. Crim. App. 1948) (quoting Head v. State, 96 S.W.2d
981, 982 (Tex. Crim. App. 1936); see also Miles v. State, 241 S.W.3d 28, 40 (Tex. Crim. App.
2007).
The determination of whether an act amounts to a breach of the peace is dependent upon
the surrounding acts and circumstances in the particular case. Id.; see also Turner v. State, 901
S.W.2d 767, 770 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). Conduct that has been found
to be a breach of the peace includes: driving while intoxicated, possession of a handgun, loud
swearing or cursing in a public place, the unprovoked assault by a man on a woman in a public
place, throwing or swinging a beer bottle at another person, failing to stop and give information
after a traffic accident, criminal trespass on fenced land containing livestock by one who had
previously been asked to leave, and defendant’s return to the scene of the previous day’s burglary
to retrieve stolen property hidden in the shrubbery. Andrade, 6 S.W.3d at 590–91 (citing cases).
In addition, in Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App.—Ft. Worth 1983, pet. ref'd), the
court found that a defendant who extended the middle finger of his right hand to a high school
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principal during commencement exercises breached the peace because the obscene gesture
amounted to “fighting words.”
In this case, appellant’s attempt to steal merchandise from the Lowe’s store caused a public
commotion resulting in alarms going off, an employee shouting for him to stop, and Johnson
chasing appellant into the parking lot where Johnson and appellant scuffled before Johnson was
ultimately able to detain appellant until the Forney police arrived. Johnson repeatedly shouted at
appellant during the chase and struggle that he was a police officer; appellant responded by telling
Johnson that he was going to shoot him. The record also shows that another customer reacted to
the commotion by running outside after Johnson and appellant and assisted Johnson in holding
appellant down and calling 911. He heard Johnson shouting at appellant repeatedly and appellant
threatening to shoot him. In addition, several other customers witnessed the struggle between
Johnson and appellant and also came to Johnson’s aid by restraining appellant’s arm and leg.
Under these circumstances, we conclude that appellant’s conduct constituted a breach of the peace.
Further, once appellant threatened to shoot Johnson, Johnson was justified in attempting to
detain and arrest appellant for the felony offense of robbery. Section 29.02 of the penal code
provides that a person commits the offense of robbery if, in the course of committing theft, he
intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011). See White v. State, 671 S.W.2d 40, 42–43
(Tex. Crim. App. 1984) (assault occurring during flight from attempted theft can constitute robbery
under section 29.02); Arnold v. State, 36 S.W.3d 542, 545 (Tex. App.—Tyler, 2000, pet. ref’d)
(same); Morgan v. State, 703 S.W.2d 339, 340 (Tex. App.—Dallas 1985, no pet.) (same).
On this record, we conclude that Johnson was authorized to detain and arrest appellant
under article 14.03 of the code of criminal procedure. We further conclude that the evidence is
legally sufficient to prove that, when appellant committed the assault, Johnson was a public servant
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discharging an official duty. Having concluded that the evidence is legally sufficient for a rational
trier of fact to have found beyond a reasonable doubt that appellant knew Johnson was a peace
officer and that Johnson was a public servant discharging an official duty at the time of the assault,
we overrule appellant’s sole issue.
II. Modification of Judgment
The State requests that we modify the judgment to accurately reflect that appellant entered
a plea of not guilty to the offense. The trial court’s judgment reflects that appellant pleaded guilty.
However, the trial record shows that appellant entered a plea of not guilty. Accordingly, we
modify the judgment to reflect that appellant pleaded not guilty to the offense. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.—Dallas 1991, pet. ref’d.).
CONCLUSION
As modified, we affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
171138F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JACOB WILSON, III, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-17-01138-CR V. Trial Court Cause No. 17-90023-422-F.
Opinion delivered by Justice Evans,
THE STATE OF TEXAS, Appellee Justices Myers and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The Section entitled “Plea to Offense” is modified to state “Not Guilty.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 17th day of October, 2018.
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