Maurice Everton Jones Jr. v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00440-CR

Maurice Everton Jones Jr., Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NO. 8550, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

Appellant Maurice Everton Jones Jr. appeals from his conviction for the offense

of assault upon a public servant. See Tex. Penal Code Ann. § 22.01 (a)(1), (b)(1) (West 1994 &

Supp. 1998). The trial court assessed appellant's punishment, enhanced by a prior felony

conviction, at imprisonment for twelve years. Appellant presents ten points of error asserting that

the evidence is factually insufficient to support the jury's verdict, and that the trial court erred in

disallowing voir dire of a witness, in admitting inadmissible evidence, and in charging the jury.

In his eighth point of error, appellant insists that the evidence is factually

insufficient to support the jury's verdict. Appellant does not challenge the legal sufficiency of the

evidence. In reviewing factual sufficiency of the evidence, we view all of the evidence without

the prism of "in the light most favorable to the prosecution"; we set aside the jury's verdict only

if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

See Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State , 823 S.W.2d

375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed). "In performing a factual

sufficiency review, we are required to give deference to the jury's verdict, examine all of the

evidence impartially, and set aside the jury verdict 'only if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.'" Cain v. State , 958 S.W.2d 404, 410

(Tex. Crim. App. 1997) (quoting Clewis , 922 S.W.2d at 129 ).

The indictment in pertinent part alleged that appellant "did then and there

intentionally, knowingly and reckless[ly] cause bodily injury to Paul Hernandez, a person the

defendant knew was a public servant, to-wit: Police Officer, by hitting officer with a board, and

said offense was committed by the defendant while the said Paul Hernandez was lawfully

discharging an official duty."

We will summarize the evidence. At about 4:00 a.m., Jennifer Blake was tending

to the needs of her small child when she heard her car's horn "beep twice." When she looked

outside, she saw a flicker of light and someone in her car. She awakened her husband Russell.

He awakened Allan Greene, his brother-in-law. Greene called the City of Elgin police. Russell

Blake and Greene ran out of the house and started to chase the man who fled from the car. Blake

and Greene were overtaken by two uniformed police officers who continued to chase after the man

who was identified at trial as the appellant. The police officers, Paul Hernandez and Adam

Adams, chased appellant about three hundred yards over fences and through residential yards.

As the officers closed in on appellant, he pulled a board from a fence and swung the board with

great force at Officer Hernandez. The board struck Hernandez's arm when he tried to deflect the

blow. During the struggle that followed, Officer Adams sprayed appellant with pepper spray.

Appellant grabbed Hernandez's sprayer and directed pepper spray at both officers. In the

continuing struggle appellant attempted to take Adams's pistol from its holster. With great

difficulty, the officers subdued and handcuffed appellant.

Appellant argues that the indictment required the State to prove and the jury to find

that appellant "intentionally, knowingly, and recklessly caused bodily injury to Officer

Hernandez." Furthermore, appellant says that because the State alleged all three culpable mental

states, appellant "cannot be held to any culpable mental state less than the greatest of those

charged--intentional." Appellant asserts that the "State must prove the elements of the charge as

stated, otherwise the evidence is factually insufficient to sustain a conviction for the charge."

Appellant concedes that Hernandez's "testimony might describe his injury from either the knowing

actions or the reckless actions of the Defendant but not from an intentional act by Jones."

The alternative theories of culpability for the commission of the offense of assault

are "intentionally, knowingly or recklessly." Tex. Penal Code Ann. § 22.01 (a)(1) (West 1994).

If any one of the three culpable mental states is proved, it is sufficient to prove that element of the

offense. As a general rule it is not objectionable for the State to plead alternative theories of

culpability conjunctively, while authorizing conviction if any one or more of such theories is

sufficiently proved at trial. See Rogers v. State , 774 S.W.2d 247, 251 (Tex. Crim. App. 1989).

Appellant concedes the evidence is sufficient to prove appellant acted knowingly and recklessly.

We hold the evidence is factually sufficient to sustain the jury's verdict. Appellant's eighth point

of error is overruled.

In his first point of error, appellant complains that the trial court erred in denying

counsel's request to voir dire the witness Jennifer Blake out of the jury's presence to determine

the relevance of her testimony before she testified in the presence of the jury. It is unnecessary

to allow a hearing outside the presence of the jury to determine the admissibility of the witness'

testimony in the absence of any reasonable ground for believing the testimony is inadmissible.

See Shugars v. State , 814 S.W.2d 897, 897-98 (Tex. App.--Austin 1991, no pet.). At trial,

appellant did not give any reason for believing that Blake's testimony would be inadmissible.

Some of Blake's testimony was relevant, but some may not have been. However, appellant did

not make any further objections during Blake's testimony except to an exhibit which was offered.

Defense counsel did not cross-examine Blake. The trial court's ruling not to allow Blake to be

examined out of the presence of the jury was not shown to be erroneous. Appellant's first point

of error is overruled.

In his second, third, fourth, fifth, and seventh points of error, appellant complains

that the trial court erred in admitting in evidence several of the State's exhibits. The State asserts

that appellant's objections to the admission of the exhibits were too general to preserve error for

appellate review. Moreover, the State urges the relevancy of the exhibits which include a number

of photographs, a church bulletin, a knife, screwdriver, spark plug, hat, lighter, a piece of

porcelain, a metal pipe, a board, pepper spray, and a jacket. Error may not be predicated upon

a ruling which admits evidence unless a substantial right of the party is affected and a timely

objection or motion to strike appears of record stating the specific ground of objection, if the

specific ground was not apparent from the context. See Tex. R. Evid. 103. As a prerequisite to

presenting a complaint for appellate review, the record must show that the complaint was made

to the trial court by a timely request, objection, or motion stating grounds for the ruling sought

with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P.

33.1.

To preserve an error in the admission of evidence, timely objection must be made

at the trial stating the specific ground for the objection, if the specific ground is not apparent from

the context. See Ethington v. State , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Jones v.

State , 843 S.W.2d 92, 98 (Tex. App.--Dallas 1992, pet. ref'd); Andrews v. State , 794 S.W.2d

46, 49 (Tex. App.--Texarkana 1990, pet. ref'd).

"The naming of a series of evidentiary rules without explanation of how the rules

are applicable is not sufficient to preserve error, even if one of the rules might apply, because it

fails to state the specific grounds for the objection." Sandow v. State , 787 S.W.2d 588, 596 (Tex.

App.--Austin 1990, pet. ref'd). "The admission of evidence over such a general objection is not

error." Id. Where the correct ground of exclusion was obvious to the judge and opposing

counsel, no waiver results from a general or imprecise objection. See Zillender v. State , 557

S.W.2d 515, 517 (Tex. Crim. App. 1977).

The record shows appellant's trial objections to the admission of the exhibits about

which he now complains on appeal were as follow:

[Prosecutor]: The State would move to admit State's Exhibit Number 12.

(State's Exhibit No. 12 was offered into evidence.)

[Defense Counsel]: Objection, Rule 402 and 403.

THE COURT: The objections are overruled, number 12 is admitted. Go ahead.

(State's Exhibit No. 12 was admitted into evidence.)

* * * * *

[Prosecutor]: At this time, Your Honor, the State would move to admit State's

Exhibits 26, 24, 28, 30, 29, 25, and 27.

(State's Exhibit Nos. 24, 25, 26, 27, 28, 29 & 30

were offered into evidence.)

[Defense Counsel]: Your Honor, I need to object, that it's irrelevant, that it's

prejudicial and confuses the issues under Rule 402 and 403 of the Rules of

Evidence.

THE COURT: Okay. They are overruled. They're all admitted. Go ahead.

(State's Exhibits Nos. 26, 24, 28, 30, 29, 25 and

27 were admitted into evidence.)

* * * * *

[Prosecutor]: Your Honor, at this point the State would offer to admit Exhibits 1

though 11 inclusive.

(State's Exhibits No. 1 through 11 were offered into evidence.)

THE COURT: Any objections?

[Defense Counsel]: Yes, relevancy?

THE COURT: The objections are overruled, 1 through 11 are admitted.

(State's Exhibits No. 1 through 11 were admitted into evidence.)

* * * * *

[Prosecutor]: At this point, Judge, we would offer to admit State's Exhibit No. 23.

(State's Exhibit No. 23 was offered into evidence.)

THE COURT: Any objections?

[Defense Counsel]: No objection.

THE COURT: Twenty-three is admitted. No objections?

[Defense Counsel]: No, I'm objecting, Your Honor. I don't understand why it's

relevant or appropriate to the issue.

THE COURT: I'll overrule the objection; 23 is admitted. Go ahead.

(State's Exhibit No. 23 was admitted into evidence.)

* * * * *

[Prosecutor]: At this time, the State would offer State's Exhibit Number 31.

(Exhibit No. 31 was offered into evidence.)

[Defense Counsel]: Objection, Your Honor. It's irrelevant, inflammatory and

confusing.

THE COURT: The objection's overruled. Number 31 is admitted.

(State's Exhibit No. 31 was admitted into evidence.)

Appellant's objections were general in nature and did not state grounds with the

required specificity to make the trial court aware of his complaints. Specific grounds were not

apparent from the context. Moreover, before error may be predicated upon a ruling admitting

evidence, a party must show a substantial right was affected. See id. Rule 103. With the possible

exception of Exhibit Number 23, a church bulletin, the exhibits arguably have probative value to

show why appellant was fleeing from the car which had been broken into and damaged giving the

officers the right to pursue and arrest appellant. We hold that the trial objections were insufficient

to preserve the claimed errors for review. Appellant's points of error two, three, four, five, and

seven are overruled.

In his sixth point of error, appellant complains that the trial court erred in admitting

a tape recording over his objection that the tape had not been properly authenticated. The State

offered evidence to authenticate the tape recording and offered it in evidence. Defense counsel

asked to "voir dire this witness." The trial court granted counsel's request.

VOIR DIRE EXAMINATION

QUESTIONS BY [DEFENSE COUNSEL] :

Q: Officer, have you had custody of this tape from the time it was made until

today's date?

A: No, sir.

Q: When did you relinquish control and custody of this tape?

A: Myself?

Q: Yes, sir.

A: I have never had custody of the tape.

Q: Okay. You've never had custody. Who has had custody?

A: The Lieutenant.

[Defense Counsel]: Your Honor, I would say that this evidence isn't properly

authenticated.

It is apparent that appellant's specific trial objection concerned the chain of custody

of the tape. When asked by the trial court to respond, the State argued that it had authenticated

the tape recording and that it was unnecessary to show a chain of custody. The trial court

overruled appellant's objection and admitted the tape recording. The State's argument at trial, that

it need not show a chain of custody of the tape before it was admitted, was correct. See Holland

v. State , 622 S.W.2d 904, 906 (Tex. App.--Fort Worth 1981, no pet.). Appellant's sixth point

of error is overruled.

In his ninth point of error, appellant urges that the trial court erred in refusing to

charge the jury on the lesser included offense of resisting arrest.

An offense is a lesser included offense if:

(1) It is established by proof of the same or less than all the facts required to

establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury

or risk of injury to the same person, property, or public interest suffices to

establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable

mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise

included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981).

The elements of assault on a public servant as charged in the indictment are:

(1) a person

(2) intentionally, knowingly, or recklessly

(3) causes bodily injury to another

and the punishment is enhanced to a third degree felony if:

(4) the offense is committed against a person the defendant knows is a public

servant

(5) while the public servant is lawfully discharging an official duty.

See Tex. Penal Code Ann. § 22.01 (a)(1), (b)(1) (West 1994 & Supp. 1998).

The elements of resisting arrest are:

(1) a person

(2) intentionally

(3) prevents or obstructs a person he knows is a peace officer from effecting an

arrest

(4) by using force against the peace officer.

See Tex. Penal Code Ann. § 38.03 (West 1994).

The test to determine whether a charge on a lesser included offense is necessary has

been stated to be: "first, the lesser included offense must be included within the proof necessary

to establish the offense charged, and second, some evidence must exist in the record that would

permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser

offense." Rousseau v. State , 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). " In applying the

two-pronged test the trial court should make a determination as to whether the evidence of the

lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of

that offense, and not the greater offense." Id.

In determining whether the trial court erred in failing to charge the jury on the

lesser included offense, all of the evidence presented by the State and the defendant must be

considered. Penry v. State , 903 S.W.2d 715, 755 (Tex. Crim. App. 1995); Havard v. State , 800

S.W.2d 195, 216 (Tex. Crim. App. 1989). "It is not enough, . . . that the jury may disbelieve

crucial evidence pertaining to the greater offense." Bignall v. State , 887 S.W.2d 21, 24 (Tex.

Crim. App. 1994). Instead, "there must be some evidence directly germane to a lesser . . .

offense for the fact finder to consider before an instruction . . . is warranted." Id. Merely

because a lesser offense is included within the proof of the greater offense, however, does not

necessarily warrant a jury charge on the lesser offense. See Jones v. State , 833 S.W.2d 118, 127

(Tex. Crim. App. 1992); Aguilar v. State , 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

Although the State "does not dispute that resisting arrest is a lesser included offense

of assault on a public servant," we have found no cases so holding. However, it has been held

that resisting arrest is a lesser included offense of aggravated assault on a police officer. See

Sutton v. State , 548 S.W.2d 697, 699 (Tex. Crim. App. 1977); Preston v. State , 700 S.W.2d 227 ,

230 n.1 (Tex. Crim. App. 1985). See also Jacob v. State , 892 S.W.2d 905 (Tex. Crim. App.

1995); Bartholomew v. State , 871 S.W.2d 210 (Tex. Crim. App. 1994).

However, even assuming that resisting arrest is a lesser included offense of assault

upon a public servant, we must determine whether the evidence would allow a jury to rationally

find that if appellant is guilty, he is guilty only of the lesser offense and not guilty of the greater

offense . Appellant offered no evidence in his defense, and in our previous discussion of

appellant's eighth point of error we summarized all of the evidence. That evidence would have

allowed the jury to rationally find appellant was guilty of the lesser included offense of resisting

arrest. However, that evidence would not allow the jury to rationally find that appellant was guilty

only of the lesser included offense and not guilty of the charged offense of assault upon a public

servant. We hold that the evidence is both legally and factually sufficient to allow the jury to

rationally find appellant guilty of the greater offense of assault upon a public servant. Therefore,

the trial court did not err in refusing to charge the jury on the lesser included offense. Point of

error nine is overruled.

In his tenth point of error, appellant contends that the trial court erred in amending

the jury charge over objection after the jury had started to deliberate. During its deliberation, the

jury sent a note to the trial court asking for clarification of the charge. The jury's note pointed

out that the application paragraph of the charge stated the necessary culpable mental state was

intentionally, knowingly, and recklessly, while the definition paragraph of the charge stated the

required culpable mental state was intentionally, knowingly, or recklessly. After the jury called

the trial court's attention to this discrepancy, the trial court corrected the application paragraph

to read "intentionally, knowingly, or recklessly." The trial court's correction of the charge was

consistent with the proper practice of alleging alternative culpable mental states in the conjunctive

and charging the jury in the disjunctive. See Rogers , 774 S.W.2d at 251 ; Robinson v. State , 596

S.W.2d 130, 133 (Tex. Crim. App. 1980); Cowan v. State , 562 S.W.2d 236, 240 (Tex. Crim.

App. 1978). The trial court may, before the jury's verdict is received, correct the jury charge if

the court is convinced that the charge given was erroneous. See Bustillos v. State , 464 S.W.2d

118, 125 (Tex. Crim. App. 1971) (construing Code Criminal Procedure Article 36.16); Chambers

v. State , 379 S.W.2d 907, 908 (Tex. Crim. App. 1964); Nowlin v. State , 175 S.W. 1070, 1072

(Tex. Crim. App. 1915); Gains v. State , 710 S.W.2d 632 -33 (Tex. App.--Dallas 1986, pet.

ref'd). Appellant's tenth point of error is overruled.

The trial court's judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Kidd and Dally *

Affirmed

Filed: September 11, 1998

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1988).

t resisting arrest is a lesser included offense

of assault on a public servant," we have found no cases so holding. However, it has been held

that resisting arrest is a lesser included offense of aggravated assault on a police officer. See

Sutton v. State , 548 S.W.2d 697, 699 (Tex. Crim. App. 1977); Preston v. State , 700 S.W.2d 227 ,

230 n.1 (Tex. Crim. App. 1985). See also Jacob v. State , 892 S.W.2d 905 (Tex. Crim. App.

1995); Bartholomew v. State , 871 S.W.2d 210 (Tex. Crim. App. 1994).

However, even assuming that resisting arrest is a lesser included offense of assault

upon a public servant, we must determine whether the evidence would allow a jury to rationally

find that if appellant is guilty, he is guilty only of the lesser offense and not guilty of the greater

offense . Appellant offered no evidence in his defense, and in our previous discussion of

appellant's eighth point of error we summarized all of the evidence. That evidence would have

allowed the jury to rationally find appellant was guilty of the lesser included offense of resisting

arrest. However, that evidence would not allow the jury to rationally find that appellant was guilty

only of the lesser included offense and not guilty of the charged offense of assault upon a public

servant. We hold that the evidence is both legally and factually sufficient to allow the jury to

rationally find appellant guilty of the greater offense of assault upon a public servant. Therefore,

the trial court did not err in refusing to charge the jury on the lesser included offense. Point of

error nine is overruled.

In his tenth point of error, appellant contends that the trial court erred in amending

the jury charge over objection after the jury had started to deliberate. During its deliberation, the

jury sent a note to the trial court asking for clarification of the charge. The jury's note pointed

out that the application paragraph of the charge stated the necessary culpable mental state was

intentionally, knowingly, and recklessly, while the definition paragraph of the charge stated the

required culpable mental state was intentionally, knowingly, or recklessly. After the jury called

the trial court's attention to this discrepancy, the trial court corrected the application paragraph

to read "intentionally, knowingly, or recklessly." The trial court's correction of the charge was

consistent with the proper practice of alleging alternative culpable mental states in the conjunctive

and charging the jury in the disjunctive. See Rogers , 774 S.W.2d at 251 ; Robinson v. State , 596

S.W.2d 130, 133 (Tex. Crim. App. 1980); Cowan v. State , 562 S.W.2d 236, 240 (Tex. Crim.

App. 1978). The trial court may, before the jury's verdict is received, correct the jury charge if

the court is convinced that the charge given was erroneous. See Bustillos v. State , 464 S.W.2d

118, 125 (Tex. Crim. App. 1971) (construing Code Criminal Procedure Article 36.16); Chambers

v. State , 379 S.W.2d 907, 908 (Tex. Crim. App. 1964); Nowlin v. State , 175 S.W. 1070, 1072

(Tex. Crim. App. 1915); Gains v. State , 710 S.W.2d 632 -33 (Tex. App.--Dallas 1986, pet.

ref'd). Appellant's tenth point of error is overruled.

The trial court's judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Kidd and Dally *

Affirmed

Filed: September 11, 1998

Do Not Publish

*