Danielle Marie Dickerson v. State

Opinion issued November 16, 2006

Opinion

issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00948-CR

DANIELLE MARIE DICKERSON, Appellant

V.

THE STATE OF TEXAS,

Appellee

On Appeal from County Criminal Court at Law

No. 15

Harris County, Texas

Trial Court Cause No. 1299509

MEMORANDUM OPINION

A jury found appellant Danielle Marie

Dickerson guilty of the Class B misdemeanor offense of interference with public

duties. See Tex. Pen. Code Ann. § 38.15 ( a )(1) (V ernon Supp. 2005).

The trial court assessed punishment at fifteen days’ confinement and

imposed a fine of $500. In two

issues, Dickerson contends the evidence is legally and factually insufficient

to support her conviction. We affirm.

Facts

In April 2005, Harris County Sheriff’s

Deputy T. Hodge, a process server for County Court 10, drove to Dickerson’s

residence to serve a subpoena. Deputy

Hodge, dressed in full uniform, arrived at the residence around 1:00 p.m. Another car pulled into Dickerson’s driveway

at the time Hodge arrived, driven by a woman later identified as Theresa

Mungle, the sister of Dickerson’s boyfriend.

Deputy Hodge exited her car, asked Mungle a few questions, and then

noticed a large Akita

dog at the side of the house. Dickerson

stood near two men who were laying cobblestone near the front door of the

house. Hodge asked Dickerson to secure

the dog. Hodge also told Dickerson that

she was there to serve her with a subpoena.

Mungle

and Hodge both testified that Dickerson then began to yell at Hodge using

profanity, racial epithets, and physical gestures, repeatedly telling Hodge to

“get off” her property. The dog became

increasingly defensive and began growling and barking incessantly. Throughout the entire exchange, Deputy Hodge

repeatedly asked Dickerson to restrain her dog.

Dickerson continually refused, claiming that Hodge was the one trespassing

and that she should get off her property.

Frightened by the dog’s aggressive behavior, Deputy Hodge gave the

subpoena to Mungle to deliver. After

receiving the subpoena from Mungle, Dickerson threw it on the ground. Prompted by the dog’s violent behavior and

Dickerson’s refusal to accept the subpoena, Hodge walked back down the driveway

towards the street. According to Deputy

Hodge, Dickerson and her dog followed closely behind, with Dickerson still

cursing and the dog still barking.

Hodge called for backup on her police

radio and stated aloud to her supervisor that she needed help and might have to

shoot the dog. She also reached for her

gun but did not pull it out of the holster.

At this time, Dickerson finally grabbed her dog’s collar in an effort to

control him. Dickerson was unable to

restrain the dog so Mungle asked one of the construction workers for

assistance. The construction worker

chained the dog in the yard and Dickerson locked herself in the house. Four Humble police officers arrived at the

scene shortly thereafter.

Dickerson’s

testimony at trial was somewhat different from that of Hodge and Mungle. Dickerson contends that, on the afternoon in

question, she was inside her house when she saw Mungle’s car and another black

SUV pull into her driveway. Dickerson

watched the two women talking and walked outside to greet them, assuming that

Deputy Hodge was Mungle’s friend. As

soon as Dickerson walked out of the door, Deputy Hodge began screaming at her

to chain the dog. Dickerson admits that

the dog was barking, but in a non-violent manner. She explained to Deputy Hodge that the dog

does not bite, but she had to raise her voice to communicate because Hodge was

yelling so loudly. Dickerson contends

that she never used profanity or physical gestures toward the deputy. When Hodge reached for her gun, Dickerson

became afraid that the deputy would shoot both her and her dog. Dickerson maintains that this is the first

time she realized that Deputy Hodge was a peace officer. At this time, the construction worker helped

Dickerson chain the dog in the yard.

Dickerson retreated to her house and watched the four Humble police

officers arrive, although none of them came to the door to talk to her.

Dickerson

maintains that she did not realize that Deputy Hodge was at her house to serve

a subpoena until Mungle gave it to her.

She also claims that she never threw it on the ground. Dickerson contends that if the deputy had

told her that she was there to serve a subpoena, she would have accommodated

the deputy in any manner possible.

Instead, Deputy Hodge never told Dickerson about the subpoena and then

threatened to shoot her dog, so Dickerson’s focus was on protecting her

pet. Mungle and Dickerson both testified

that no more than thirty seconds elapsed from the time the incident became very

“heated,” until Hodge reached for her gun and Dickerson finally made an effort

to restrain the dog. Hodge testified

that about ten minutes elapsed from the time she “perceived danger,” until

Dickerson finally made an effort to restrain her dog.

Interference with Public Duties

In her

first and second issues ,

Dickerson contends the evidence is legally and factually insufficient to

support her conviction for interference with public duties. A person commits the offense of interference

with public duties if the person with criminal negligence interrupts, disrupts,

impedes, or otherwise interferes with a peace officer while the peace officer

is performing a duty or exercising authority imposed or granted by law. Tex.

Pen. Code Ann. § 38.15 ( a)(1).

It is a defense to prosecution if the interruption, disruption,

impediment, or interference consisted of speech only. Id.

§ 38.15(d).

A person acts with criminal negligence, or is criminally

negligent, with respect to circumstances surrounding his conduct or the result

of his conduct when he ought to be aware of a substantial and unjustifiable

risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree

that the failure to perceive it constitutes a gross deviation from the standard

of care that an ordinary person would exercise under all the circumstances as

viewed from the actor’s standpoint.

Tex. Pen. Code Ann . § 6.03(d) (Vernon 2003).

Legal Sufficiency

Standard

of Review

When evaluating the legal sufficiency of the

evidence, we view 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, 319 , 99 S. Ct. 2781, 2789 (1979); Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim. App.

2005). The standard is the same for both

direct and circumstantial evidence cases.

King v. State ,

895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

We do not resolve any conflict of fact, weigh any evidence, or evaluate

the credibility of any witnesses, as this was the function of the trier of

fact. See Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App.

1999); Adelman v. State , 828 S.W.2d 418, 421 (Tex. Crim. App.

1992); Matson v. State ,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

Instead, our duty is to determine whether both the explicit and implicit

findings of the trier of fact are rational by viewing all the evidence admitted

at trial in the light most favorable to the verdict. See Adelman , 828 S.W.2d at 422 . In

so doing, any inconsistencies in the evidence are resolved in favor of the

verdict. Matson , 819 S.W.2d at 843 .

Legally Sufficient Evidence

Dickerson’s first issue is that the

evidence is not legally sufficient to support her conviction for interference

with public duties. Specifically,

Dickerson first challenges the legal sufficiency of the evidence to support

every element of the offense of interference with public duties. Tex.

Pen. Code Ann. § 38.15 ( a)(1) (stating that person commits offense of

interference with public duties if person with criminal negligence interrupts,

disrupts, impedes, or otherwise interferes with peace officer while peace

officer is performing duty or exercising authority imposed or granted by

law). Viewing the evidence in the light

most favorable to the verdict, a rational trier of fact could have found beyond

a reasonable doubt that Dickerson committed the offense of interference with

public duties.

Deputy Hodge testified that she is a

Harris County Sherriff’s Deputy. A

sheriff’s deputy is a peace officer according to article 2.12 of the Texas Code

of Criminal Procedure. Tex. Code Crim. Proc. Ann . art. 2.12(1)

(Vernon Supp.

2005). Hodge also testified that she is

performing a duty or exercising authority imposed or granted by law when she

serves a subpoena. See id. art. 2.13(b)(2)

(Vernon 2005); id. arts. 24.01(b)(1),

24.04(a)(2) (Vernon 1989 & Supp. 2005).

The record also contains legally

sufficient evidence to support a finding that Dickerson interrupted, disrupted,

impeded, or otherwise interfered with Deputy Hodge in the performance of her

legally imposed duty to serve Dickerson with the subpoena. Hodge and Mungle both testified that Hodge

informed Dickerson that she was trying to serve her with a subpoena, and that

she needed to restrain her dog.

Dickerson responded with commands to “get your black ass off my

property,” as well as aggressive hand gestures and the use of profanity. When Hodge tried to retreat to the

street, Dickerson actively followed Hodge down the driveway with her dog at her

side, cursing and yelling, and making the dog more agitated . Dickerson and the dog only halted their

pursuit when Hodge left the property and was on the street. Dickerson

effectively used her dog to force Hodge to leave her property by walking

towards Hodge with the agitated and angry dog at her side. H odge also testified that Dickerson’s

actions interrupted, disrupted, impeded, and interfered with her ability to

serve the subpoena. See Berrett v. State , 152 S.W.3d 600 , 604–05 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d) (holding that evidence

of defendant’s conduct in filming his encounter with police and repeatedly

moving his arm out of officer’s reach to prevent officer from placing him in

handcuffs, despite officer’s telling defendant more than fifteen times to place

his hand behind his back, was legally and factually sufficient to support

conviction for interference with public duties ); Key v. State , 88 S.W.3d 672, 676 (Tex.

App.—Tyler 2002, pet. ref’d) (holding that evidence was legally sufficient to

support conviction for interference

with public duties when officer

testified that defendant was agitated and that he and another officer attempted

to calm defendant to investigate disturbance call, that he ordered defendant to

remain on sidewalk to prevent defendant from assaulting individual, and that

defendant stepped off of sidewalk toward individual six times prior to being

placed under arrest, and second police officer confirmed officer’s testimony) . Viewing the evidence in the light most

favorable to the verdict, we hold that the record contains legally sufficient

evidence to support a finding that Dickerson interrupted, disrupted, impeded,

and interfered with Hodge’s duty to serve the subpoena.

The record also contains legally

sufficient evidence to support a jury finding of criminal negligence. Dickerson contends that because the dog had

never exhibited violent behavior prior to this incident, and because she was on

her own property, her conduct demonstrates that she exercised ordinary care

during this incident.

To support a finding of criminal

negligence, “[t]he State does not have to prove that [Dickerson] was aware of a

substantial and unjustifiable risk, rather the State has to prove that

[Dickerson] ought to have been aware of a substantial and unjustifiable

risk.” Lopez v. State , 630 S.W.2d

936, 940 (Tex. Crim. App. 1982) (emphasis added). Hodge and Mungle both testified that

Dickerson refused to restrain her dog after repeated requests from Hodge. They also testified that the dog visibly

frightened Deputy Hodge, so much so that Hodge retreated down the driveway and

eventually reached for her gun.

Dickerson’s yelling also exacerbated her dog’s aggressive behavior,

making the situation even more dangerous.

We conclude that the record contains legally sufficient evidence to

support a finding that Dickerson ought to have been aware that there was a

substantial and unjustifiable risk in failing to secure her dog and using the

dog to force Deputy Hodge off her property, and that her failure to perceive

that risk constituted a gross deviation from the standard of care an ordinary

person would have exercised under like circumstances.

Finally, Dickerson contends the

evidence presented at trial is legally insufficient to support a finding that

her conduct was not “speech only.” Tex. Pen. Code Ann. § 38.15(d) (“ It is a

defense to prosecution under this section that the interruption, disruption,

impediment, or interference alleged consisted of speech only .”). Dickerson’s speech during the incident has

nothing to do with the charged offense of interference with public duties. As discussed above, the record contains

legally sufficient evidence to support a finding that Dickerson failed to

restrain her dog after repeated requests from Hodge, and forced Hodge off her

property by following Hodge to the street with the agitated dog at her

side. Dickerson’s failure to restrain

the dog and her affirmative act of forcing Hodge off her property constitute

the culpable conduct for which the State charged Dickerson with interference

with public duties. This conduct does

not constitute speech. See Barnes

v. State , No. PD-0939-05, 2006 WL 1083968, at *4

(Tex. Crim. App. Apr. 26, 2006) (holding that mother’s shout to her

seven-year-old son to run from police did not constitute “speech only” for

purposes of interference with public duties conviction); Berrett , 152 S.W.3d at 604–05 (holding that defendant’s spoken

refusals to comply with commands of police officer were not conduct used to

convict him of interference with public duties; rather, culpable conduct was

his videotaping his arrest and continually moving his arm away when officer

tried to put him in handcuffs).

Dickerson’s spoken refusals are irrelevant; Dickerson completed her

crime when she did not take action in response to Deputy Hodge’s repeated requests

and affirmatively forced Hodge off the property by following her down the

driveway with her angry dog at her side.

Thus, a rational juror could have found beyond a reasonable doubt that

Dickerson’s conduct did not constitute “speech only.” Tex. Pen. Code Ann. §

38.15(d).

Voluntariness

Dickerson’s second contention is that

the evidence is not legally sufficient to support her conviction for

interference with public duties because the record contains no evidence that

her actions or omissions were voluntary.

The Texas Penal Code provides that certain conditions must be met before

a person can be held criminally accountable for his or her conduct. See

Tex. Pen. Code Ann .

§ 6.01(a) (Vernon 2003). “ A person commits an offense only if he voluntarily engages

in conduct, including an act, an omission, or possession.” Id. “ Voluntarily” as used in section 6.01(a) means

“the absence of an accidental act, omission or possession,” and only refers to

one’s physical bodily movements. Id. ; Brown v. State , 89 S.W.3d 630, 633

(Tex. Crim. App. 2002); Alford v. State , 866 S.W.2d 619 , 624 n.8 (Tex. Crim. App. 1993) (“ Because

‘voluntarily’ means the absence of accidental act, omission or

possession, it is not a fact that the State must prove in every case. Rather, the State need not prove

voluntariness unless the evidence raises the issue of accident, in which case

the State must disprove the theory of accident beyond a reasonable doubt.”).

Viewing the evidence in

the light most favorable to the verdict, the record contains legally sufficient

evidence to support a finding that Dickerson’s failure to restrain her dog was

voluntary and not an accident. Hodge and

Mungle both testified that in response to Hodge’s requests that she restrain

her dog, Dickerson replied that she would not tie up her dog because the dog

was at home and Hodge was the one trespassing.

This testimony affirmatively demonstrates that Dickerson understood

Hodge’s request and “voluntarily” refused to comply with it. See Alford , 866 S.W.2d at 624

n.8. In addition, Dickerson’s

affirmative act of following Hodge to the street with the agitated dog at her

side was a “voluntary” act as well. Id. ; see also Calhoun v. State , 951 S.W.2d 803, 809 (Tex. App.—Waco

1997, pet. ref’d) (holding evidence was legally sufficient to support finding

that defendant voluntarily burned child with scalding water and injury was not accident);

Molinar v. State , 910 S.W.2d 572 ,

584–85 (Tex. App.—El Paso 1995, no pet.) (holding evidence was legally

sufficient to support finding that defendant voluntarily stabbed victim). Thus, the record contains legally sufficient

evidence to support a finding that Dickerson’s actions were voluntary.

No Duty

Dickerson’s third contention is that

the evidence is not legally sufficient to support her conviction for

interference with public duties because she had no duty to comply with Hodge’s

request that she restrain her dog. As stated

in the previous section, “ [a] person commits an

offense only if he voluntarily engages in conduct, including an act, an

omission, or possession.” Tex. Pen. Code Ann .

§ 6.01(a). “ A person who omits to perform an act does not

commit an offense unless a law as defined by Section 1.07 provides that the

omission is an offense or otherwise provides that he has a duty to perform the

act.” Id.

§ 6.01(c). Dickerson contends that

because her conduct consisted of an omission to act, she cannot be convicted of

interference with public duties unless a law specifically provides that she had

a duty to restrain the dog at the request of Hodge.

Hodge and Mungle testified that after Hodge

asked Dickerson to restrain her dog, Dickerson began yelling and commanding

Hodge to “get off” her property. When

Hodge tried to retreat to the street, Dickerson actively followed Hodge down

the driveway with the dog at her side, cursing and yelling, and making the dog

more agitated . Dickerson and the dog only halted their

pursuit when Hodge left the property and was on the street. Dickerson

effectively used her dog to force Hodge to leave her property by walking

towards Hodge with the agitated and angry dog at her side. This voluntary action interrupted, impeded,

disrupted, and interfered with Hodge’s duty to deliver the subpoena. See

Tex. Pen. Code Ann.

§ 38.15( a)(1). We conclude

that Dickerson’s conduct, in these circumstances, constitutes voluntary action, not a mere omission to act . See

Berrett , 152

S.W.3d at 604 (holding that defendant’s conduct in

filming his encounter with police and repeatedly moving his arm out of

officer’s reach to prevent officer from placing him in handcuffs, despite

officer’s telling defendant more than fifteen times to place his hand behind

his back, constituted voluntary action, not mere omission to act). As a result, the State did not have to prove

that Dickerson had a duty to accede to Deputy Hodge’s requests. See

id.

Factual Sufficiency

Standard

of Review

When conducting a factual sufficiency

review, we view all of the evidence in a neutral light. Ladd v. State ,

3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside

only if (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Johnson

v. State , 23 S.W.3d 1, 11 (Tex. Crim. App.

2000). Under the first prong of Johnson , we cannot conclude that a

conviction is “clearly wrong” or “manifestly unjust” simply because, on the

quantum of evidence admitted, we would have voted to acquit had we been on the

jury. Watson v. State , No.

PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18,

2006). Under the second prong of Johnson , we cannot declare that a

conflict in the evidence justifies a new trial simply because we disagree with

the jury’s resolution of that conflict. Id.

Before finding that evidence is factually insufficient to support a verdict

under the second prong of Johnson , we must be able to say, with some

objective basis in the record, that the great weight and preponderance of the

evidence contradicts the jury’s verdict. Id.

In conducting a factual sufficiency review, we must also discuss the

evidence that, according to the appellant, most undermines the jury’s

verdict. See Sims v. State , 99

S.W.3d 600, 603 (Tex. Crim. App.

2003).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000). The fact-finder alone

determines what weight to place on contradictory testimonial evidence because

that determination depends on the fact-finder’s evaluation of credibility and

demeanor. Cain v. State , 958 S.W.2d 404 , 408–09 (Tex. Crim. App.

1997). As the determiner of the credibility of the witnesses, the

fact-finder may choose to believe all, some, or none of the testimony

presented. Id.

at 407 n.5.

Receipt of the Subpoena

Dickerson’s second issue is that the

evidence is not factually sufficient to support her conviction for interference

with public duties. Specifically,

Dickerson first maintains that the evidence is not factually sufficient to

uphold her conviction because her ultimate receipt of the subpoena proves that

she did not interfere with the deputy’s lawful duty to serve the subpoena.

The

relevant language of section 38.15 provides that a person commits the offense

of interference with public duties if she “interrupts, disrupts, impedes, or

otherwise interferes” with the performance of the duty. Tex.

Pen. Code Ann. § 38.15(a).

Dickerson’s eventual receipt of the subpoena does not prove that her

conduct did not affirmatively interfere with Hodge’s performance of the public

duty. Her refusal to restrain the

intimidating dog, along with her own aggressive behavior, created a situation

that interrupted, disrupted, impeded, and interfered with Deputy Hodge in the

performance of her public duty. Thus,

the evidence is factually sufficient to support a finding that Dickerson

interrupted, disrupted, impeded, and interfered with Hodge’s ability to perform

her duty to serve the subpoena. The fact

that Dickerson eventually obtained the subpoena does not negate her

interference with its service. See Berrett ,

152 S.W.3d at 604 (holding that defendant’s eventual

arrest did not preclude conviction for interference with public duties when he

filmed his encounter with police and repeatedly moved his arm out of officer’s

reach to prevent officer from placing him in handcuffs, despite officer’s

telling defendant more than fifteen times to place his hand behind his back).

Criminal Negligence

Dickerson’s second contention is that

the evidence is factually insufficient to support a finding of criminal

negligence. Dickerson specifically

points to the testimony of the three witnesses regarding the length of the incident. Mungle and Dickerson both testified that no

more than thirty seconds elapsed from the time the incident became very

“heated,” until Hodge reached for her gun and Dickerson finally made an effort

to restrain the dog. Hodge testified

that about ten minutes elapsed from the time that she “perceived danger,” until

Dickerson finally made an effort to restrain her dog. Dickerson contends that this apparent

discrepancy lends support to her version of the facts and demonstrates that the

evidence is factually insufficient to support a jury finding of criminal

negligence. According to Dickerson, if

the incident lasted only thirty seconds, her version of the facts becomes more

plausible.

We conclude that the record contains

factually sufficient evidence to support a finding of criminal negligence. The testimony of Mungle and Hodge does not

contradict with regard to time because they testified to the length of time

between different events. In addition,

the remainder of their testimony is substantially the same, especially with

regard to Dickerson’s repeated refusals to restrain her dog and Dickerson’s

statements to Hodge during the incident.

Mungle’s and Hodge’s testimony indicates that (1) Dickerson knew that

Hodge was attempting to serve a subpoena, (2) Dickerson understood the purpose

of Hodge’s requests to restrain the dog, and (3) Dickerson’s refusal to

restrain her dog was a voluntary action designed to force Hodge off her

property. Dickerson’s testimony, on the

other hand, suggests that the entire incident was a misunderstanding, fueled by

Hodge’s irrational and excessive behavior with regard to the dog. While Dickerson’s testimony is in direct

contravention to the testimony of Mungle and Hodge, the jury was free to

disregard any testimony that it found to be not credible. See Cain , 958 S.W.2d

at 407 n.5.

We conclude that the record contains

factually sufficient evidence to support a finding that Dickerson ought to have

been aware that there was a substantial and unjustifiable risk in failing to

secure her dog and using the dog to force Deputy Hodge off her property, and

that her failure to perceive that risk constituted a gross deviation from the

standard of care an ordinary person would have exercised under like

circumstances. When viewed in a neutral

light, the evidence is not so weak that the verdict is

clearly wrong and manifestly unjust, and the verdict is not against the great

weight and preponderance of the evidence. Johnson , 23 S.W.3d at 11 .

Accordingly, we hold that the evidence is factually sufficient to

support the jury finding of criminal negligence.

Conclusion

We hold that the evidence is legally

and factually sufficient to support Dickerson’s conviction for interference

with public duties. We therefore affirm

the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

Do not publish. Tex.

R. App. P. 47.2 (b ).