Summary
holding the jury was correctly instructed that it could not consider whether the arresting officer's entry into the defendant's home was lawful
Summary of this case from Greathouse v. StateOpinion
No. 01-01-00408-CR
Opinion issued June 12, 2003 Do not publish. Tex.R.App.P. 47.4.
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause No. 00CR0630
MEMORANDUM OPINION
A jury found appellant, Tenekia Lynette Cail, guilty of assault on a public servant. The trial court assessed punishment at eight years' confinement, suspended, and appellant was placed on eight years' community supervision. On appeal, appellant claims that (1) the trial court erred by instructing the jury not to consider whether the arrest or entry into appellant's house was lawful, (2) the trial court erred by denying appellant's request for an extraneous offense limiting instruction, and (3) the trial court abused its discretion by allowing the State to impeach appellant with a prior theft conviction during the guilt phase of the trial. We affirm.FACTUAL BACKGROUND
On March 22, 2000, Hitchcock Police Officer Norman Desmormeaux was called to investigate a possible burglary in progress. As he approached the scene, Desmormeaux saw an adult female and two juveniles running away from the area along a fence line toward another street. Desmormeaux testified that the adult was carrying something in her hands at that time. The complainant, Ms. Vonderia Anderson, then signaled Desmormeaux and provided further information regarding one of the individuals involved, who was then emerging from the rear of the house. Desmormeaux detained the individual and called Officer Soliz for assistance in the investigation. Further investigation by the officers yielded witness accounts that implicated appellant in the burglary and indicated her presence in a nearby duplex. In response to information by one of the witnesses, Officer Desmormeaux located an item underneath appellant's residence that matched the description of property allegedly taken from the complainant's house. The officers began to consider appellant a suspect in the offense and decided to question her further by making contact with appellant at her residence. Appellant's relative, Jamesa Dennis, answered the door and initially denied appellant's presence in the house, but then admitted she was in the bathroom. Finally, appellant came to the door. Desmormeaux was in uniform, and he identified himself as a police officer. Desmormeaux requested that appellant exit the house for questioning, outside the presence of the children, who were located just inside the residence. Appellant repeatedly refused Desmormeaux's requests, and her tone became increasingly threatening and irate until she finally attempted to slam the door. Officer Desmormeaux stretched his arm between the door frame and the door to prevent its closure. He continued into the residence attempting to handcuff the resisting appellant. As Desmormeaux grabbed appellant's right arm, appellant turned and scratched the officer's right eye with her fingernails. The struggle continued inside the house as Desmormeaux attempted to grab both of appellant's arms to prevent additional resistence. During this time, appellant again scratched Officer Desmormeaux, this time on the officer's right arm. The two fell to the ground, and Officer Desmormeaux was able to secure the handcuffs on both of appellant's arms.JURY CHARGE ERROR
In her first, second, and third points of error, appellant claims the trial judge erred by incorrectly instructing the jury that it "must not consider whether the detention or arrest of the Defendant, or the entry of the police officers into the residence was lawful." Appellant argues that this particular instruction was a misstatement of the law and that it was an improper comment on the weight of the evidence. Standard of Review When reviewing a complaint about charge error, we must first determine whether error actually exists in the charge. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). In making that determination, we view the charge as a whole and our review will not be limited to a series of isolated statements or parts of the charge standing alone. See Inman v. State, 650 S.W.2d 417, 419 (Tex.Crim.App. 1983); see also Jones v. State, 859 S.W.2d 537, 543-44 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Misstatement of the Law In this case, after setting forth the elements of the charged offense and the definitions of "public servant" and "bodily injury," the trial judge instructed the jury that:During your deliberations in this case, you must not consider whether the detention or arrest of the Defendant, or the entry of the police officers into the residence was lawful.Appellant contends that this instruction was a misstatement of the law because it removed from the jury's consideration one of the necessary elements of the charged offense: that Officer Desmormeaux was "lawfully discharging an official duty." However, the case law is directly contrary to appellant's contention. In Montoya v. State, the Texas Court of Criminal Appeals stated:
Whether [the officer] was making a lawful arrest is not relevant to determining if [the officer] was acting in the lawful discharge of his duties. A police officer is still acting within the lawful discharge of his official duties when he makes an unlawful arrest, so long as he is acting within his capacity as a peace officer.744 S.W.2d 15, 29 (Tex.Crim.App. 1987. Montoya has been consistently followed. See Hughes v. State, 897 S.W.2d 285, 297-98 (Tex.Crim.App. 1994); Guerra v. State, 771 S.W.2d 453, 461 (Tex.Crim.App. 1988). The record in the present case reflects that Officer Desmormeaux was "acting in his capacity as a peace officer" at the time of the offense. He was on duty, in uniform, and investigating a burglary. Hence, the trial court's instruction was a correct statement of the law, and did not constitute an improper comment on the weight of the evidence. Accordingly, we overrule appellant's first, second, and third points of error.