Opinion
No. 12-04-00106-CR
Opinion delivered September 7, 2005. DO NOT PUBLISH.
Appeal from the 349th Judicial District Court of Houston County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
Appellant Keith Shelton was convicted of aggravated assault on a public servant and was sentenced to sixty years of imprisonment. In one issue, Appellant contends that the evidence in support of his conviction was factually insufficient. We affirm.
Background
On July 28, 2003, Appellant was indicted for aggravated assault on a public servant; specifically, that on June 29, 2002, Appellantintentionally, knowingly, and recklessly seriously cause[d] bodily injury to JAYSON N. CROWSON, by KICKING HIM and the DEFENDANT did then and there know that the said JAYSON N. CROWSON was then and there a public servant, to-wit: a correctional officer employed by the Texas Department of Criminal Justice, institutional division, and that the said JAYSON N. CROWSON was then and there lawfully discharging an official duty, to-wit: MAINTAINING ORDER AND SECURITY. . . .Following a "not guilty" plea, Appellant's case went to trial. On June 29, 2002, Crowson said he was supervising inmates taking showers as part of his duties as a sergeant at the Eastham Unit of the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID"). Appellant was one of those inmates being supervised by Crowson. Crowson stated that he was wearing the uniform of a prison officer and that he did not know Appellant before June 29. According to Crowson, Appellant was in the shower area yelling and "being loud." Inmates are not allowed to be loud and cause disturbances while in the showers, so Crowson told Appellant to exit the shower. Crowson placed Appellant in the hallway across from the showers in order to let him calm down. Appellant continued his "abnormal behavior," so Crowson reached down to grab Appellant's hand and place handcuffs on him. When he reached down, Appellant turned and kicked him in his left leg, and both Crowson and Appellant "went to the floor," with Appellant on top of Crowson. Crowson stated that when Appellant kicked him, his left leg "hurt very badly." After he was able to get out from underneath Appellant, other officers arrived to assist him. His leg then became very tender and was "abnormal shaped." Crowson believed that his leg was broken. He was then taken by ambulance to Crockett, where doctors diagnosed him as suffering from a broken tibia. The doctors had to place Crowson under general anesthesia in order to set the break. The doctors first put a full leg cast on his broken leg for eight weeks and then a fiberglass walking cast that "came up a little above the knee." Crowson missed four to five months of work because of the injury. He stated that he continues to have problems with his leg after physical activity because his ankle swells. Benjamin Jeffries, an officer at TDCJ-ID, testified that he saw Appellant kick Crowson with his right foot and strike Crowson in the lower portion of his left leg, thus causing Crowson to fall. Jeffries saw that as Crowson fell, he grabbed Appellant and pulled Appellant down on top of him. He stated that several other officers ran to help Crowson and restrained Appellant. Jeffries told Crowson to stand up, but Crowson responded, "Well, he got my leg. It hurts. I think he broke it." Jim Garvin, an officer at TDCJ-ID, stated that Appellant was being loud and obnoxious, and he saw Crowson tell Appellant to stand and face the wall in order to be handcuffed. When Crowson began putting the handcuffs on him, he saw Appellant "yank away," turn sideways, and kick Crowson in the lower left leg. He saw Crowson fall to the floor and drag Appellant on top of him. The State rested, and Appellant testified on his own behalf. Appellant stated that he did not kick Crowson and that Crowson, the nurse, and the surgeon were all lying about Crowson's leg being broken. Appellant further asserted that Crowson might have broken his own leg in order to keep from being sued over the incident. At the conclusion of the trial, the jury found Appellant guilty of the offense as charged in the indictment and sentenced him to sixty years of imprisonment. Appellant now challenges the finding of guilt in one issue.
Factual Sufficiency of the Evidence
Appellant contends that the trial court erred by denying his motion for instructed verdict because the evidence was factually insufficient to support the conviction. A challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). Appellant does not argue that the evidence is legally insufficient to support the conviction; he only argues the factual sufficiency of the evidence. Accordingly, we will address only the factual sufficiency of the evidence to support the conviction.