Opinion
No. 10-05-00173-CR
Opinion delivered and filed January 25, 2006. DO NOT PUBLISH.
Appeal from the 297th District Court, Tarrant County, Texas, Trial Court No. 0917808D. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM Opinion
A jury convicted DeShawn McGraw of aggravated assault on a public servant. McGraw pleaded true to enhancement allegations, and the court sentenced him to twenty-five years' imprisonment. McGraw contends in his sole point that the evidence is factually insufficient. We disagree and will affirm. McGraw does not clearly indicate in the statement of his point or in the argument portion of his brief which element(s) of the charge he contends lack factually sufficient evidentiary support. See Turner v. State, 4 S.W.3d 74, 80 (Tex.App.-Waco 1999, no pet.) (brief challenging legal or factual sufficiency should "specif[y] which element lacks evidentiary support"). Nevertheless, McGraw's brief focuses on a discrepancy between two officers' testimony about "what they were doing" when McGraw shoved one of the officers to the ground. Thus, we construe McGraw's point as challenging the factual sufficiency of the evidence to prove that the officer whom McGraw shoved to the ground was "lawfully discharging an official duty" when he assaulted her. See Act of May 28, 2003, 78th Leg., R.S., ch. 1019, § 3, 2003 Tex. Gen. Laws 2963, 2963 (amended 2005) (current version at Tex. Pen. Code Ann. § 22.02(b)(2)(B) (Vernon Supp. 2005)). The evidence can be factually insufficient if the evidence supporting the verdict is "too weak to support the finding of guilt" or if the contrary evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A law enforcement officer is lawfully discharging an official duty for purposes of the statute "as long as the officer [i]s acting within his capacity as a peace officer." Hall v. State, 158 S.W.3d 470, 474 (Tex.Crim.App. 2005) (quoting Guerra v. State, 771 S.W.2d 453, 461 (Tex.Crim.App. 1988)). The lawful discharge of an official duty "may or may not involve an arrest." Schreyer v. State, No. 05-03-1127-CR, 2005 Tex. App. LEXIS 5921, at *26 (Tex.App.-Dallas July 29, 2005, pet. filed); Gilmore v. State, 44 S.W.3d 92, 96 (Tex.App.-Beaumont 2001, pet. ref'd). Thus, officers have been found to be lawfully discharging their official duties when investigating a traffic accident; see Hafdahl v. State, 805 S.W.2d 396, 401 (Tex.Crim.App. 1990); and when transporting an arrestee to the county jail. See Young v. State, 170 Tex. Crim. 159, 338 S.W.2d 720, 720-21 (1960). Here, the complainant, Officer Straten, stopped the car McGraw was driving after she observed the car traveling "at a high rate of speed" and "quite a bit faster than other traffic, whipping in and out, jockeying around cars." When Straten asked McGraw for his license and proof of insurance, he responded that he did not have them. She then escorted him to her patrol car and had him sit in the rear seat. McGraw was not handcuffed at this point, but Straten explained that she was in the process of formally arresting him for driving without a license. As Straten talked to McGraw in an effort to ascertain his identity, another officer who had arrived on the scene, Officer Selvey, went to shut the driver's door of McGraw's car. Selvey discovered a baggie of marihuana laying on the floorboard of McGraw's car. Selvey called out to Straten to let her know what had been found. McGraw then uttered an expletive, "knocked [Straten] to the ground" and fled the scene on foot. Straten, Selvey, and other officers located and arrested him soon thereafter. McGraw focuses on (1) discrepancies between Straten's and Selvey's testimony regarding Selvey's conduct and (2) the fact that Straten did not write in her offense report that the baggie was laying on the floorboard or in "plain view" when Selvey discovered it to support his contention that the evidence is factually insufficient. However, none of these supposed discrepancies regarding Selvey's conduct and observations has any bearing on whether Straten was lawfully discharging an official duty when McGraw assaulted her. Even assuming these "discrepancies" qualify as evidence contrary to the verdict, this "contrary evidence" is clearly not "strong enough that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga, 144 S.W.3d at 484-85. According to Straten's testimony, she was in the process of verifying McGraw's identity when he assaulted her. Clearly she was lawfully discharging an official duty. See Hafdahl, 805 S.W.2d at 401; Young, 338 S.W.2d at 720-21. Thus, we cannot say that the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt." See Zuniga, 144 S.W.3d at 484. Accordingly, we overrule McGraw's sole point and affirm the judgment.
McGraw's sole point reads, "The evidence was factually insufficient."
Straten testified that Selvey had "gone back" to McGraw's car to shut the door, while Selvey testified that the first thing she did upon arriving at the scene was walk to McGraw's car to shut the door.