No. 05-02-00771-CR
Opinion Filed July 8, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-53444-UJ. AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion by Justice FitzGerald.
Christopher Shawn Gomer appeals his conviction for assault of a public servant. A jury convicted appellant of the crime. Appellant pleaded true to an enhancement paragraph. The trial court found the paragraph true and assessed punishment at twelve years' imprisonment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting five grounds he assets are arguable issues. We have reorganized appellant's grounds for ease of discussion. Appellant contends he received ineffective assistance of counsel at trial and on appeal, the trial committed error, there is insufficient evidence to support his conviction, and he was tried twice for the same crime. To support some of his arguments, appellant relies on several "exhibits" attached to his pro se response. We will not consider those "exhibits" not supported by the appellate record. See Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App. 1996).
Facts
The police had a house under surveillance, and saw activity consistent with drug sales. Officer Castro saw appellant come out of the house with money and a vial in his hand. Castro believed the vial contained phencyclidine (PCP). When Castro identified himself as a police officer, appellant tossed the items he was holding and fled. Officer Misty Van Curen, in full police uniform, gave chase. After running through yards and jumping several fences, Van Curen grabbed appellant. A struggle ensued, and Van Curen testified that appellant hit her repeatedly in the jaw with his elbow. Appellant was able to remove Van Curen's pistol from its holster, but dropped it. Feeling her gun being taken, Van Curen hit appellant several times with her flashlight. More than once, appellant broke away from Van Curen, but she caught appellant each time. Van Curen could not subdue appellant until another officer intervened, performed a "brachial plexus stun," and brought appellant to the ground. Ineffective Assistance of Counsel at Trial
In his first ground, appellant complains he received ineffective assistance of counsel at trial. Appellant contends counsel should have brought up the possibility of police retaliation, claiming charges were "stacked" on him and that he was beaten by the police after he was taken into custody. We use the Strickland standard in evaluating ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Bone, 77 S.W.3d at 833. If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was deficient. Id. at 835-37. Appellant contends charges were unfairly "stacked" against him by the police. As a result of his confrontation with police, appellant was charged with assault of a public servant, taking a weapon from a peace officer, and possession of phencyclidine in an amount less than one gram. The jury found appellant guilty of each crime, and the record supports the convictions. The fact that appellant's actions led to multiple charges against him does not show the police retaliated against him. Moreover, appellant does not show how the results of his proceedings would have been different had counsel presented the theory of police retaliation to the jury. Therefore, appellant does not show counsel's ineffectiveness in this regard. See id. at 833. Appellant contends he was beaten by the police after he was taken into custody as retaliation for his attempt to evade them. The record reflects appellant struggled with police and was struck several times with a flashlight before his arrest. There is no evidence in the record showing appellant was abused after he was taken into custody. Therefore, appellant cannot show counsel was ineffective for failing to argue appellant was the victim of police retaliation. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) (allegations of ineffectiveness must be firmly grounded in the record). We conclude appellant does not present an arguable issue in his first ground. Trial Court Error
In his second ground, appellant complains the trial court erred by not submitting a lesser-included offense charge to the jury and for not allowing the jury to "review" Van Curen's testimony. A court must charge the jury on a lesser-included offense if the lesser-included offense is included within the proof necessary to establish the offense charged and some evidence on the record would permit a jury to rationally find the defendant guilty, if at all, of only the lesser-included offense. Gumpert v. State, 48 S.W.3d 450, 453 (Tex.App.-Texarkana 2001, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)), cert. denied, 535 U.S. 1064 (2002). Appellant contends he should have been charged with resisting arrest, not assault of a police officer. See id. (resisting arrest can be lesser-included offense of assault of a public servant) Appellant points to photographs of Van Buren showing she suffered "scratches and abrasions consistent with a struggle with the appellant over control of the weapon," and asserts they "do not prove the theory of a separate assault on a police officer." However, appellant was not charged in this case with causing scratches or abrasions to Van Curen; he was charged with striking her with his arm or hand, causing bodily injury. Appellant points to no evidence that would have permitted a rational jury to only find him guilty of resisting arrest, and we can find none. Accordingly, appellant was not entitled to a charge on a lesser-included offense of resisting arrest. Appellant contends the trial court erred by not allowing the jury to "review" Van Curen's testimony. The record does not contain a note from the jury requesting portions of the trial testimony be read back to them. See generally Tex. Code Crim. Proc. Ann. art. 36.27 (jury may communicate with court), art. 36.28 (jury may have portions of witness testimony read back to them) (Vernon 1981). The record does not reflect what action, if any, the trial court took in response to any such note. Even assuming the jury did request to review a portion of trial testimony, appellant did not object to the trial court's disposition of the request. Therefore, he has waived error. See Boatwright v. State, 933 S.W.2d 309, 310-11 (Tex.App.-Houston [14th Dist.] 1996, no pet.). We conclude appellant has not shown the trial court erred by refusing to include a jury charge on resisting arrest as a lesser-included offense in this case or that the trial court erred in dealing with a jury request to "review" a portion of Van Curen's testimony. Accordingly, appellant does not present an arguable issue in his second ground. Sufficiency of the Evidence
In his third ground, appellant contends the evidence is insufficient to support his conviction for assault of a public servant. Appellant contends the evidence at trial merely showed he struggled to take Van Curen's weapon and does not show an assault on her. Appellant asserts that no "witness statements" were introduced to confirm the testimony of the "charging officer." Appellant points out that the photographs introduced at trial did not show any facial injuries to Van Curen such as a bloody nose, black eye, or a "busted lip," but merely showed signs of a struggle. Appellant contends a man of his size would have inflicted substantial injuries to anyone he assaulted. Appellant asserts he should have been charged with resisting arrest, not assault on a public servant, and that the jury's doubt was shown by their request to review Van Curen's testimony. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine if any rational jury could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In this review, we do not re-evaluate the weight and credibility of the evidence, but only decide if the jury reached a rational decision. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). The jury determines the credibility of all witnesses. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995). When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict, or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We may not substitute our determination for that of the jury. See Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The resolution of conflicts in the evidence and the credibility of witnesses lies within the exclusive province of the jury. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). To obtain appellant's conviction for assault of a public servant, as alleged in the indictment, the State was required to prove appellant, knowing Van Curen was a public servant, intentionally, knowingly, or recklessly caused bodily injury to Van Curen by striking her with his arm or hand while Van Curen was engaged in the lawful discharge of an official duty. See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (Vernon 2003); Gumpert, 48 S.W.3d at 453. "Bodily injury" is physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 2003); Bryant v. State, 47 S.W.3d 80, 82 (Tex.App.-Waco 2001, pet. ref'd). A defendant is presumed to know a person is a public servant if the person is wearing a distinctive uniform or badge indicating the person's status as a public servant. Tex. Pen. Code Ann. § 22.01(d) (Vernon 2003); Hoitt v. State, 28 S.W.3d 162, 165 (Tex.App.-Texarkana 2000), pet. dism'd, improvidently granted, 65 S.W.3d 59 (Tex.Crim.App. 2001). Van Curen testified she is a peace officer and was in full police uniform the night she and appellant struggled. She further testified that while trying to lawfully detain appellant, he struck her repeatedly with his elbow, causing her pain. This evidence is legally sufficient to support appellant's conviction for assault of a public servant. See Hoitt, 28 S.W.3d at 164-68. After a neutral review of all of the evidence before the jury, we conclude the proof of guilt is not so obviously weak as to undermine confidence in the verdict and that the proof of guilt is not greatly outweighed by contrary proof. See Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim.App. 2003). Accordingly, we conclude appellant does not present an arguable issue in his third ground. Double Jeopardy
In his fourth ground, appellant contends he was tried twice for the same crime. The Double Jeopardy Clause of the Fifth Amendment prohibits a second prosecution for the same offense. See Duvall v. State, 59 S.W.3d 773, 777 (Tex.App.-Austin 2001, pet. ref'd). However, appellant did not object to the trial court that he was being prosecuted twice for the same crime. Failure to object to a Double Jeopardy violation waives the complaint unless the undisputed facts clearly show the violation on the face of the record and if enforcement of the usual rules of procedural default serves no legitimate state interests. Id. at 776 (citing Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000)). After examining the entire record, we fail to detect a Double Jeopardy violation. Appellant does not describe how he was tried twice for the same crime. Accordingly, we conclude he has waived error and does not present an arguable issue in his fourth ground. Ineffective Assistance of Counsel on Appeal
In his fifth ground, appellant complains he received ineffective assistance of counsel on appeal. Appellant complains counsel should have presented in his brief the same issues appellant presents in his pro se response. Because we ultimately conclude there is nothing in the record that might support this appeal, including the grounds raised by appellant, we hold appellant does not present an arguable issue regarding counsel on appeal. Conclusion
We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.