Derrick T. Cavitt v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00105-CR
Derrick T. Cavitt § From the 396th District Court
§ of Tarrant County (1194940D)
v. § December 21, 2012
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00105-CR
DERRICK T. CAVITT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two points, Appellant Derrick T. Cavitt appeals his conviction for
aggravated assault of a public servant. We affirm.
II. Factual and Procedural Background
When Fort Worth Police Officer Kaare Martin responded to a domestic
disturbance call around 3:50 a.m.,2 he found Cavitt standing in the driveway at
1
See Tex. R. App. P. 47.4.
2
the call’s location and asked him what was going on. Cavitt told him that he had
not done anything but moved away as the uniformed officer approached him. A
foot chase ensued, with Cavitt continuing to run despite the officer’s orders to
stop.
Cavitt subsequently engaged in a struggle with Officer Martin and Officer
Jimmy Hewett Jr., who arrived as backup. They ordered Cavitt to stop resisting
four or five times, but Cavitt would not comply. At one point, Officer Hewett lost
control of his flashlight, and Cavitt grabbed it and swung it, striking Officer Martin
in the head. Cavitt continued to struggle after the police sprayed him with pepper
spray. Officer Christopher Britt arrived as backup and helped the two other
officers take Cavitt into custody. Cavitt struggled and yelled as they placed him
in the police vehicle, and the police placed him in a ―spit sock‖ because he had
been spitting and kicking inside the patrol car.
During the defense’s case, Cavitt’s neighbor Katrina Davis testified that the
altercation occurred in her front yard and that she saw flashes of electric light and
assumed that Cavitt had been tased. DeBoise, Cavitt’s grandmother, testified
that she had called 9-1-1 because Cavitt was a paranoid schizophrenic and was
2
Cavitt’s grandmother, Barbara DeBoise, had called 9-1-1 to report that
Cavitt was out of control: screaming, slamming doors, and causing trouble.
DeBoise testified that when she called the police, she told them that Cavitt ―was
acting funny‖ and that she ―didn’t know whether he was full of drugs or what, but
he needed help.‖ DeBoise admitted during cross-examination that she did not
tell the 9-1-1 operator that Cavitt needed to go to the hospital or that Cavitt was a
paranoid schizophrenic.
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bipolar, had run out of his medication, and needed to go to the hospital and that
she told the police that Cavitt needed to go to the hospital but they did not
respond to her. During cross-examination, DeBoise said that she did not recall
saying that Cavitt had been at a drug house earlier that day but admitted that she
might have said that she was concerned that he had overdosed that day.
A jury convicted Cavitt of aggravated assault against a public servant, and
the trial court entered judgment on this verdict and sentenced him to thirty years’
confinement. This appeal followed.
III. Sufficiency of the Evidence
In his first point, Cavitt asserts that the evidence is insufficient to convict
him of aggravated assault of a public servant because there was no evidence of
his intent to strike the officer.
The State charged Cavitt with intentionally or knowingly causing bodily
injury to Officer Martin by striking him with the flashlight. See Byrd v. State, 336
S.W.3d 242, 246 (Tex. Crim. App. 2011); see also Tex. Penal Code Ann.
§§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B) (West 2011). A person acts intentionally, or
with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the
result. Tex. Penal Code Ann. § 6.03(a) (West 2011). A person acts knowingly,
or with knowledge, with respect to the nature of his conduct or to circumstances
surrounding his conduct when he is aware of the nature of his conduct or that the
circumstances exist, and he acts knowingly, or with knowledge, with respect to a
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result of his conduct when he is aware that his conduct is reasonably certain to
cause the result. Id. § 6.03(b).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). We must review circumstantial evidence of intent with the
same scrutiny as other elements of an offense. Laster v. State, 275 S.W.3d 512,
519–21 (Tex. Crim. App. 2009) (overruling Margraves v. State, 34 S.W.3d 912,
919 (Tex. Crim. App. 2000)); see Kutzner v. State, 994 S.W.2d 180, 184 (Tex.
Crim. App. 1999) (―Circumstantial evidence, by itself, may be enough to support
the jury’s verdict.‖).
The record reflects that during his struggle with Officer Martin, Cavitt
grabbed the flashlight, swung it in Officer Martin’s direction, and hit Officer Martin
in the face with it as he struggled to get away from the officers: Officer Hewett
testified that he lost control of the flashlight when he entered the on-going
struggle between Cavitt and Officer Martin and that Cavitt, who was resisting the
officers’ commands, grabbed it and ―started swinging it around.‖ Officer Hewett
testified that Cavitt, who was laying on his back, swung the flashlight at least
twice; on the second swing, he struck Officer Martin with a hard blow. Officer
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Hewett said that it appeared to him that Cavitt swung the flashlight toward him
and Officer Martin.
Officer Martin testified that he was hit with a very hard object and then felt
a ―sharp pain in the right side of [his] face. [He] immediately saw stars, and [he]
felt wet running down [his] face,‖ which turned out to be blood from the cut under
his eye.3 The flashlight in question was a thirteen-inch-long metal Maglite with
around a two-inch diameter, containing a battery pack the equivalent of three D
batteries. According to Officer Hewett, ―If you hit someone in the right spot [with
it], it could easily kill them.‖
Based on this evidence, as well as evidence in the record of Cavitt’s
resistance to the police before and after they took him into custody, a rational
trier of fact could have found the essential elements of aggravated assault
against a public servant beyond a reasonable doubt, particularly with respect to
Cavitt’s intent and knowledge. Therefore, we overrule Cavitt’s first point.
IV. Speculation
In his second point, Cavitt asserts that the trial court erred by overruling his
objection to speculation by Officer Hewett. Specifically, he asserts that Officer
Hewett ―speculated or presumed‖ that Cavitt intended to strike Officer Martin with
the flashlight. The State responds that Cavitt waived this point because his
objection was untimely, referring to the following portion of the record:
3
Officer Martin testified that his injury was not caused by jumping through
bushes while pursuing Cavitt.
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Q. Was the Defendant just kind of flailing around with it or did it
look like he was deliberately trying to strike somebody?
A. I would—seems to me that he was trying to strike since he
actually hit Officer Martin.
Q. Was it moving in one direction then, basically?
A. Yeah, it was—
[Cavitt’s counsel]: Pardon me. Calls for speculation, Judge.
THE COURT: Overruled.
The timing of Cavitt’s objection appears to be to the question about the
movement of the flashlight, not to the question of Cavitt’s intent to strike the
officer. If, in fact, the objection was to the movement of the flashlight, the trial
court properly overruled the objection to speculation because the question calls
for a factual observation of Officer Hewett—the direction of movement of the
flashlight—and does not call for any speculation on his part.
Further, Cavitt did not object to the question concerning his intent in
swinging the flashlight, and nothing in the language used points out to the trial
court that the speculation objection was actually made to anything prior to the
question about the movement of the flashlight. Rule of appellate procedure 33.1
requires in part that, as a prerequisite to presenting a complaint for appellate
review, the record show that the complaint was made to the trial court by a
timely objection that states the grounds for the ruling sought with sufficient
specificity to make the trial court aware of the complaint, unless the specific
grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1). On the
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record here, the trial court properly ruled on the objection made to the question
that preceded it, and if the objection was to a prior question, Cavitt failed to
preserve it for our review.4 We overrule Cavitt’s second point.
V. Conclusion
Having overruled both of Cavitt’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 21, 2012
4
Likewise, Cavitt failed to object when Officer Hewett subsequently testified
that in his opinion, Cavitt intentionally struck Officer Martin with the flashlight.
See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) (noting that
generally, to preserve error, a party must continue to object each time the
objectionable evidence is offered). A trial court’s erroneous admission of
evidence will not require reversal when other such evidence was received
without objection, either before or after the complained-of ruling. Estrada v.
State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct.
905 (2011).
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