Opinion
04-21-00331-CR
02-22-2023
John Darrick RITTENBERRY, Appellant v. The STATE of Texas, Appellee
From the 198th Judicial District Court, Kerr County, Texas Trial Court No. B20109 Honorable Rex Emerson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice
MEMORANDUM OPINION
BETH WATKINS, JUSTICE
Appellant John Darrick Rittenberry challenges his assault of a peace officer conviction on sufficiency grounds and his punishment on due process grounds. We affirm.
Background
On December 20, 2019, Rittenberry allegedly posted a terroristic threat against state actors, including Kerrville Police Officer Jaron Ince, on Facebook. On December 23, 2019, a Kerr County Justice of the Peace issued a warrant for Rittenberry's arrest. On December 24, 2019, Ince was on duty in Kerrville when he saw Rittenberry walking on the roadside and decided to arrest him on the terroristic threat warrant. Rittenberry resisted arrest-the two fought and Rittenberry headbutted Ince. At the end of the struggle, Ince arrested Rittenberry. A grand jury indicted Rittenberry for assault of a peace officer. Rittenberry represented himself at trial. Both Ince and Rittenberry testified.
The jury convicted Rittenberry. After a punishment hearing before the bench, at which the State introduced evidence of Rittenberry's prior felony conviction, the trial court sentenced him to fifty years' confinement.
Analysis
Issue 1-Sufficiency
In his first issue, Rittenberry argues that the evidence is insufficient because no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Standard of Review
We review a challenge to the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). Under that standard, we examine all the evidence in the light most favorable to the verdict and resolve all reasonable inferences from the evidence in the verdict's favor to determine whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). "[N]o evidence is ignored because the standard requires a reviewing court to view all of the evidence in the light most favorable to the verdict." Cary v. State, 507 S.W.3d 750, 759 n.8 (Tex. Crim. App. 2016) (internal quotation marks and emphasis omitted). "An appellate court cannot act as a thirteenth juror and make its own assessment of the evidence." Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). Rather, "[a] court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Id. This rationality requirement is a key and explicit component of the Jackson sufficiency standard. See Jackson, 443 U.S. at 319.
Application
A person commits assault of a peace officer if the person "intentionally, knowingly, or recklessly causes bodily injury" to "a person the actor knows is a peace officer . . . while the officer . . . is lawfully discharging an official duty[.]" Tex. Penal Code Ann. § 22.01(a)(1), (b-2). Rittenberry argues the State failed to prove two elements of the offense: that he knew Ince to be a "peace officer" and that Ince was assaulted while "lawfully discharging an official duty."
First, the jury heard and saw evidence to support a finding that Rittenberry knew Ince was a peace officer. The evidence showed that Ince drove up in a marked car, got out in his full uniform, and called out to Rittenberry by name because he knew him from prior encounters. The evidence further showed that Rittenberry visibly reacted to Ince's approach by lifting his arms, as if yielding to the show of authority. The factfinder acted rationally in finding the State proved Rittenberry knew of Ince's status as a peace officer. See Gokey v. State, 314 S.W.3d 63, 67 (Tex. App.-San Antonio 2010, pet. dism'd).
Second, the evidence that Rittenberry assaulted Ince as Ince attempted to arrest him on a warrant sufficiently proved Ince was assaulted while "lawfully discharging an official duty." The jury watched dash-cam video of Ince's encounter with Rittenberry. The video captured Rittenberry announcing he had a warrant. The trial court admitted the warrant into evidence. Rittenberry admitted Ince told him he was arresting him pursuant to a warrant but testified that any warrant was fake.
As a reviewing court, we "give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19). The act of arresting a defendant on a warrant-captured here on dash-cam video-is quintessential police work. See Day v. State, 614 S.W.3d 121, 130 (Tex. Crim. App. 2020) (citing Tex. Code Crim. Pro. Ann. art. 15.06). The factfinder acted rationally in finding the State proved Rittenberry assaulted Ince "while [Ince was] lawfully discharging an official duty." Jackson, 443 U.S. at 319; Tex. Penal Code § 22.01(b-2). We overrule Rittenberry's first issue.
Issue 2-Sufficiency in Light of Variance
Rittenberry next argues that the evidence is insufficient because of a material variance prejudicing his substantial rights.
Applicable Law
A "variance" is a discrepancy between the allegations of the charging instrument and the State's proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance arises when the State's evidence proves the defendant committed the crime as defined in the statute but proves it in a manner that varies from the specific allegations in the charging instrument. Id.
"Only a 'material' variance, one that prejudices a defendant's substantial rights, will render the evidence insufficient." Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018). "This happens when the indictment, as written, 1) fails to adequately inform the defendant of the charge against him, or 2) subjects the defendant to the risk of being prosecuted later for the same crime." Id. "[I]n a sufficiency review, we tolerate variances as long as they are not so great that the proof at trial 'shows an entirely different offense' than what was alleged in the charging instrument." Id. (quoting Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012)).
Application
Again, a conviction of assault of a peace officer requires the State to prove that the actor assaulted "a person the actor knows is a peace officer . . . while the officer . . . is lawfully discharging an official duty[.]" Tex. Penal Code Ann. § 22.01(a), (b-2). The indictment alleged Rittenberry:
ON OR A80UT DECEMBER 24, 2019, AND BEFORE THE PRESENTMENT OF TH!S INDICTMENT, IN SAID COUNTY AND STATE, DID THEN AND THERE INTENTIONALLY AND KNOWINGLY, CAUSE BODILY INJURY TO JARON INCE, HEREAFTER STYLED THE COMPLAINANT BY HEADBUTTING HIM, AND THE DEFENDANT KNEW THAT THE COMPLAINANT WAS A POLICE OFFICER AND THE COMPLAINANT WAS LAWFULLY DISCHARGING AN OFFICIAL DUTY, NAMELY ARRESTING THE DEFENDANT FOR A WARRANT.
Rittenberry argues this wording required the State to prove that he knew not only that Ince was a police officer, but also that he knew Ince was lawfully discharging an official duty when he was assaulted, and the State failed to prove that second aspect of knowledge. The Texas Court of Criminal Appeals, in construing an earlier but similarly worded statute, concluded "that while the State must still prove the defendant knew or had been informed that he was assaulting a peace officer, proof that he also knew the officer was 'lawfully discharging an official duty' is unnecessary." Salazar v. State, 643 S.W.2d 953, 956 (Tex. Crim. App. 1983).
This is not a variance case. Here, the State proved Rittenberry committed the crime as defined in the statute and proved the commission of the crime in a manner that did not vary from the specific allegations in the charging instrument-there was no discrepancy between the allegation in the indictment and the proof presented at trial. See Phillips v. State, 401 S.W.3d 282, 290 (Tex. App.-San Antonio 2013, pet. ref d) (concluding there was "no variance between the pleading and the proof). The application charge given to the jury tracked the language in the indictment:
Now bearing In mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, IOHN DAitKICK JEOTTENBHUIY, on or about the 24' day of December, 2019, in the County of Kerr, and State of Texas, as alleged in the indictment, did then and uiere intentionally or knowingly cause bodily injury to Jaron Ince, the complainant, by head butting brim, and the defendant knew that the complainant was a police officer and the complainant was lawfully discharging an official duty, namely, arresting the defendant for a warrant, you will find the defendant guilty of the offense of Assault of a Peace Officer and so say by your verdict, but if you do not so believe, and you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."
And the jury found Rittenberry guilty. It therefore found Rittenberry "knew the complainant was a police officer and the complainant was lawfully discharging an official duty." And it was entitled to do so based on Rittenberry's testimony that Ince said he was arresting him on a warrant.
In a true variance case, some part of the allegation in an indictment is unproven. See Ramjattansingh, 548 S.W.3d at 547-49 (addressing variance created by the State's alleging of an "extra, made-up element" but failing to prove the same). Here, no part of the indictment was unproven. It closely tracked the elements of the offense as defined in the statute, included a caption listing the applicable statute, and stated the arrest date. The proof presented at trial substantiated the State's allegations. For these reasons, it cannot be said that the indictment failed to adequately inform Rittenberry of the charge against him or that he is at risk for being prosecuted later for the same crime. Cf. Roy v. State, 76 S.W.3d 87, 101-02 (Tex. App.- Houston [14th Dist] 2002, no pet.) (variance material as State "proved an offense different from the offense alleged in the indictment and set out in the jury charge"). We overrule Rittenberry's second issue.
Issue 3-Sufficiency to Prove Date of Offense
Rittenberry's final sufficiency-related complaint is that that the State failed to prove that he committed the offense before the presentment of the indictment on February 25, 2020.
Applicable Law
Article 21.02 of the Texas Code of Criminal Procedure requires that an indictment allege an offense date "anterior to the presentment of the indictment[.]" Tex. Code Crim. Pro. Ann. art. 21.02(6).
Application
The grand jury handed down the indictment on February 25, 2020, alleging an offense date of "on or about December 24, 2019." Ince testified that the magistrate issued the warrant on December 23, 2019. He was on patrol the next day, saw Rittenberry walking down the street, and pulled over to arrest him. The State therefore presented proof that the offense was committed prior to the presentment of the indictment. Id. We overrule Rittenberry's third issue.
Issue 4-Notice of Enhancement
Rittenberry last argues that his due process rights were violated when the State gave its notice of intent to enhance punishment on the date of trial.
Applicable Law
A defendant is entitled to notice of the State's intention to use prior convictions for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). "[P]rior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment- although it is permissible and perhaps preferable to do so." Id. at 34. The pleading requirement for enhancements is a "right to notice rooted in due process," not statutory provisions relating to the indictment, and the ultimate question is whether constitutionally adequate notice was given. Villescas v. State, 189 S.W.3d 290, 293-94 (Tex. Crim. App. 2006).
Application
On April 20, 2021, the State filed its notice of intention to use bad acts and extraneous matters, listing a 2004 felony conviction from Putnam County, Tennessee for manufacturing schedule two drugs. On May 25, 2021, the State filed its notice of intent to enhance punishment under Texas Penal Code section 12.42 with that same conviction. See Tex. Penal Code Ann. § 12.42(b) (providing that "if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree").
On the morning of the June 2, 2021 jury trial, the prosecutor handed Rittenberry the pen packet from Tennessee. At trial, Rittenberry testified that he "hadn't been in trouble . . . in 20 years" and had moved to Kerrville to turn his life around. On cross-examination, Rittenberry acknowledged that he had "pled guilty to manufacturing drugs" and been sent to the penitentiary in Tennessee. Two months later, on July 28, 2021, the trial court held a punishment hearing. Rittenberry complained about the State's late notice of the Tennessee conviction and said his defensive evidence was "that I was not notified of this enhancement until five minutes before trial." But Rittenberry did not suggest the need for a continuance to prepare a defense. Instead, he argued that he "had one felony charge my whole life, not two," because he mistakenly thought the State was enhancing him as a habitual instead of a repeat offender.
The notice given was constitutionally adequate. Villescas, 189 S.W.3d at 294; Zambrano v. State, 431 S.W.3d 162, 169-70 (Tex. App.-San Antonio 2014, no pet.). We overrule Rittenberry's fourth issue.
Conclusion
We affirm the trial court's judgment.