in the Matter of D.X.S. ( 2013 )

NUMBER 13-12-00446-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE MATTER OF D.X.S.
On appeal from the 323rd District Court
of Tarrant County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Perkes
D.X.S., a juvenile, appeals the trial court’s order adjudicating him delinquent and
placing him on probation. By two issues, appellant argues: (1) the trial court failed to
include a self-defense instruction in the jury charge; and (2) the trial court violated
constitutional protections against double jeopardy by including two special issues in the
jury charge for a single offense of evading arrest. We affirm as modified.1
1
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is
before this Court on transfer from the Second Court of Appeals in Fort Worth, Texas. See TEX. GOV’T.
CODE ANN. § 73.001 (West 2005).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s mother called 911 requesting police assistance, stating “[M]y 14-year-
old son which [sic] is bipolar is out of control.” Two peace officers responded, Officer
Brian Hamlin and Officer Barry Hope. Officers Hamlin and Hope repeatedly attempted to
convince appellant to “tell his side of the story” and to move into the living room, away
from the many potential weapons in the kitchen. As the struggle intensified, appellant
began to resist and broke free of the officers, leading them on a lengthy pursuit2 that
culminated with the necessity of five officers working together to hand cuff appellant.
Appellant was charged with one count of assault against a public servant, a
third-degree felony, two counts of resisting arrest, a class A misdemeanor, and two
counts of evading arrest, a class A misdemeanor. See TEX. PENAL CODE ANN.
§§ 22.01(b)(1), 38.03(a), 38.04(b) (West 2011). Appellant requested a jury trial and the
case was submitted to the jury on five special issues. Specifically, for each count, the
jury was asked whether it found appellant guilty of delinquent conduct because the
evidence showed beyond a reasonable doubt that he committed the alleged offense.
After the jury found appellant delinquent on each count, the trial court placed him on
probation.
II. JURY CHARGE ERROR
By his first issue, appellant argues the trial court should have granted his request
for a self-defense-against-a-police-officer instruction under section 9.31 of the Texas
Penal Code. See TEX. PENAL CODE ANN. § 9.31(c) (West 2011). The procedural and
evidentiary rules that govern juvenile proceedings are set forth in section 51.17 of the
2
Appellant fled from the officers on foot.
2
Juvenile Justice Code. See TEX. FAM. CODE ANN. § 51.17 (West Supp. 2011). The
Juvenile Justice Code3 does not have a specific provision governing the jury charge.
See In re J.R.C.S., 393 S.W.3d 903, 913 (Tex. App.—El Paso 2012, no pet.) (citing In re
A.A.B., 110 S.W.3d 553, 555–56 (Tex. App.—Waco 2003, no pet.)).
On appeal, juvenile delinquency proceedings are to be governed by the Texas
Rules of Appellate Procedure as far as practicable. In re D.I.B., 988 S.W.2d 753, 756
(Tex. 1999); In re J.R.C.S., 393 S.W.3d at 913. However, juvenile delinquency
proceedings are quasi-criminal in nature. In re C.O.S., 988 S.W.2d 760, 765 (Tex.
1999). The Texas Supreme Court has concluded that it is “unwise and problematic to
apply one preservation rule in adult, criminal proceedings and another, stricter rule in
juvenile cases.” Id. at 767. In light of the Texas Supreme Court’s warning, we will follow
the criminal standard of review in addressing alleged jury-charge error in this juvenile
delinquency adjudication.4 See, e.g., In re I.L., 389 S.W.3d 445, 451–52 (Tex. App.—El
Paso 2012, no pet.).
A. Standard of Review
In analyzing a jury-charge issue, we first determine if error occurred. Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If so, we conduct a harm analysis.
Id. The degree of harm required for reversal depends on whether the defendant
preserved error. Id. If, as here, the issue was properly preserved, jury-charge error
requires reversal if the defendant suffers “some harm” to his rights. Ngo, 175 S.W.3d at
3
TEX. FAM. CODE ANN. Title 3 (West 2008 & Supp. 2012)
4
We note that the Texas Supreme Court recently declined to decide whether the civil or criminal
standard of review for unpreserved jury-charge error applies in a juvenile-delinquency case because the
error presented to that Court was harmless under either standard. In re L.D.C., 400 S.W.3d 572, 575 (Tex.
2013). However, as discussed below, the alleged jury-charge error in this case was preserved.
3
743; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc),
superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787,
788 (Tex. Crim. App. 1988) (en banc)). Appellant submitted a written request to the trial
court to include the statutory language regarding self-defense. A written request to the
trial court preserves the issue for appellate review. See TEX. CODE CRIM. PROC. ANN. art
36.14 (West 2005).
B. Analysis
A defendant is entitled to a self-defense instruction if the issue is raised by the
evidence, regardless of whether that evidence is weak or strong, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of the
witnesses or the viability of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim.
App. 2008); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). If the evidence,
viewed in the light most favorable to the defendant, does not raise the issue of
self-defense, the defendant is not entitled to an instruction. Ferrel, 55 S.W.3d at 591.
A person is justified in using force against a peace officer when and to the degree
the actor reasonably believes the force is immediately necessary to protect himself
against the peace officer's (or other person's) use or attempted use of greater-than-
necessary force. TEX. PENAL CODE ANN. § 9.31(c)(2). Because the statute provides that
the force used must be reasonable as contemplated from the defendant's point of view,
there must be some evidence of the defendant's state of mind or observable
manifestations of the defendant's state of mind sufficient to raise the issue of
self-defense. See Reed v. State, 703 S.W.2d 380, 385 (Tex. App.—Dallas 1986, pet.
4
ref'd). In other words, there must be some evidence in the record to show that the
defendant was in some immediate apprehension or fear of being the recipient of the
unlawful use of force. Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).
Because self-defense is justification for one's actions, the assertion of the defense
necessarily requires an admission that the conduct occurred. Anderson v. State, 11
S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Thus, a “defendant is
entitled to an instruction on the law of self-defense if there is some evidence that he
intended to use force against another and he did use force, but he did so only because he
reasonably believed it was necessary to prevent the other's use of unlawful force.” Ex
parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004). Assertion of the defense is
inconsistent with a denial of the conduct, see Ford v. State, 112 S.W.3d 788, 794 (Tex.
App.—Houston [14th Dist.] 2003, no pet.) (citing Sanders v. State, 707 S.W.2d 78, 81
(Tex. Crim. App. 1986)), and a defendant is not entitled to a self-defense instruction if “he
claims that he did not perform the assaultive acts alleged, that he did not have the
requisite culpable mental state, or both.” VanBrackle v. State, 179 S.W.3d 708, 715
(Tex. App.—Austin 2005, no pet.) (citing Ex parte Nailor, 149 S.W.3d at 134).
Appellant did not admit to assaulting a public servant. In fact, defense counsel
stated during his opening statement that appellant “did not assault a public servant.” He
thereafter cross-examined witnesses in an attempt to prove inconsistencies in the
testimony that appellant struck an officer, and he later emphasized during closing
argument, “You now know what I knew when all this started, and that is that [appellant] did
not assault officer Hope.” We conclude the trial court did not err by denying the
5
instruction. We overrule appellant’s first issue. See VanBrackle, 179 S.W.3d at 715;
Anderson, 11 S.W.3d at 372.
III. DOUBLE JEOPARDY
By his second issue, appellant contends that he could not be adjudicated for two
acts of evading arrest or detention. Specifically, by special issue two, the jury was asked
whether appellant evaded arrest from Officer Hope and by special issue three, the jury
was asked whether appellant evaded arrest from Officer Hamlin. The record is clear that
though both of these peace officers pursued appellant, the incident involved a single
pursuit and arrest.
Adjudications of delinquency in juvenile cases are based on the criminal standard
of proof. See TEX. FAM. CODE ANN. § 54.03(f) (West Supp. 2012). In evaluating
appellant's argument, we apply criminal law. See In re R.S.C., 940 S.W.2d 750, 751–52
(Tex. App.—El Paso 1997, no pet.) (stating delinquency proceedings are quasi-criminal
in nature and that juveniles are entitled to many of the constitutional protections that are
afforded to adult criminal defendants).
A. Standard of Review
The Fifth Amendment provides that “[n]o person shall be . . . subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. “The United
States Supreme Court has concluded that the Fifth Amendment offers three separate
constitutional protections: (1) protection against a second prosecution for the same
offense after acquittal; (2) protection against a second prosecution for the same offense
after conviction; and (3) protection against multiple punishments for the same offense.”
6
Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006) (citing North Carolina v.
Pearce, 395 U.S. 711, 717 (1969); Lopez v. State, 108 S.W.3d 293, 295–96 (Tex. Crim.
App. 2003)). At issue here is whether appellant received multiple punishments for the
same offense.
B. Analysis
Generally, a second prosecution is permitted when “each offense requires proof of
an element that the other offense does not.” Watson v. State, 900 S.W.2d 60, 62 (Tex.
Crim. App. 1995) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). The
Blockburger test is not applicable when, as here, we are addressing multiple violations of
a single statutory provision. Vineyard v. State, 958 S.W.2d 834, 837 (Tex. Crim. App.
1998) (citing Ex Parte Rathmell, 717 S.W.2d 33, 35 (Tex. Crim. App. 1986)).
Under these circumstances, we apply a different analysis. When a defendant's
conduct allegedly violates the same statute multiple times, we must determine whether
the conduct constitutes more than one offense under the statute. See Ex Parte
Cavazos, 203 S.W.3d at 336. This determination is necessary because, although our
state courts are bound by United States Supreme Court decisions interpreting the scope
of double jeopardy, the determination of what constitutes an offense is largely a matter of
state law. Iglehart v. State, 837 S.W.2d 122, 127 (Tex. Crim. App. 1992) (en banc),
disapproved on other grounds, Bailey v. State, 87 S.W.3d 122, 128 (Tex. Crim. App.
2002). If we determine that a defendant’s conduct comprises but a single offense, “our
inquiry is ended, as a successive prosecution for the same offense after [defendant's]
earlier conviction would be a prima facie violation of the double jeopardy clause.” Id.
7
Whether a defendant’s conduct constitutes one or more offenses under a statute
depends on the legislature's intent and not on the principle of double jeopardy. See Ex
parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999) (en banc); Iglehart, 837 S.W.2d
at 128. The legislature “defines whether offenses are the same . . . by prescribing the
‘allowable unit of prosecution,’ which is a ‘distinguishable discrete act that is a separate
violation of the statute.”’ Ex Parte Hawkins, 6 S.W.3d at 556 (quoting Sanabria v. United
States, 437 U.S. 54, 69–70 (1978)). When the statute is silent on the allowable unit of
prosecution, we look to the gravamen of the offense. Jones v. State, 323 S.W.3d 885,
889 (Tex. Crim. App. 2010).
The offense of “evading arrest” criminalizes obstruction of a lawful governmental
operation. See TEX. PENAL CODE ANN. § 38.04. The gravamen of “evading arrest” is the
evasion of an arrest, as opposed to evasion of a police officer. Rodriguez v. State, 799
S.W.2d 301, 302–03 (Tex. Crim. App. 1990) (en banc); see also Alejos v. State, 555
S.W.2d 444, 449 (Tex. Crim. App. 1977). Appellant fled his home, and officers pursued
him until his ultimate capture. We conclude that appellant’s continuous act of fleeing
constitutes a single charge of “evading arrest” even though multiple officers were in
pursuit of appellant. See Hobbs v. State, 175 S.W.3d 777, 780–81 (Tex. Crim. App.
2005).
The question remaining is which counts of conviction should be deleted and which
retained. “The Supreme Court has directed that when a defendant is convicted in a
single criminal action of two offenses that are the ‘same’ for double jeopardy purposes,
the remedy is to vacate one of the convictions.” Landers v. State, 957 S.W.2d 558, 559
8
(Tex. Crim. App. 1997), overruled on other grounds by Ex parte Cavazos, 203 S.W.3d at
338 (citing Ball v. United States, 470 U.S. 856, 864–65 (1985)). In making that
determination, we retain the conviction for the “most serious” offense and set aside the
other conviction. Ex parte Cavazos, 203 S.W.3d at 337; see also In the Matter of
A.W.B., No. 07-08-0345-CV, 2010 WL 364250, at *2 (Tex. App.—Amarillo Feb. 2, 2010,
no pet.). “[T]he ‘most serious' offense is the offense of conviction for which the greatest
sentence was assessed.” Ex parte Cavazos, 203 S.W.3d at 338. When the offenses
and punishments are identical, we may uphold the conviction for the first offense listed in
the indictment and vacate the conviction for the second offense alleged. Lopez v. State,
80 S.W.3d 624, 629 (Tex. App.—Fort Worth 2002), aff’d on other grounds, 108 S.W.3d
293 (Tex. Crim. App. 2003). Under Lopez, we may do so without performing a harm
analysis.5 See id.
Because the two offenses and punishments in this instance are identical, we will
retain special issue number two, but vacate special issue number three. See id. We
sustain appellant’s second issue.
IV. CONCLUSION
We vacate special issue three on double-jeopardy grounds. As modified, we
affirm the trial court’s delinquency order placing appellant on probation.
GREGORY T. PERKES
Justice
Delivered and filed the
3rd day of October, 2013.
5
Neither party to this appeal argues a harm analysis is necessary in this Court’s disposition of
appellant’s double-jeopardy issue.
9