Opinion
01-21-00639-CR 01-21-00640-CR
12-29-2022
KENDALL WAYNE THOMAS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 21-CR-0003 & 21-CR-0004
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Peter Kelly Justice
A jury convicted appellant Kendall Wayne Thomas of assault on a public servant (21-CR-0003; 01-21-00639-CR) and driving while intoxicated after twice previously having been convicted of offenses relating to operating a motor vehicle while being intoxicated (21-CR-0004; 01-21-00640-CR). See Tex. Penal Code §§ 22.01(b)(1) (assault on a public servant is third-degree felony), 49.09(b)(2) (driving while intoxicated as a third offense is third-degree felony). The jury assessed punishment of ten years in prison and a fine of $5,000 for the assault on a public servant conviction. This sentence was suspended, and Thomas was placed on community supervision for ten years. The jury assessed punishment of four years in prison for the conviction for driving while intoxicated. This sentence was not suspended; the court ordered this sentence executed and provided that it run concurrently with the sentence for the conviction for assault on a public servant.
On appeal, Thomas raises two issues. He argues that the trial court erred by denying his request to charge the jury on resisting arrest as a lesser-included offense of assault on a public servant. He also argues that the trial court erred by denying his motion to strike testimony that he called a police officer a "skinhead" during an unrelated incident.
We affirm.
Background
Galveston County Sheriff's Deputy A. Savage was working the night shift on January 2, 2021, watching for speeding vehicles on the side of the highway. Around 3:45 a.m., Deputy Savage saw a Ford Explorer, travelling 71 miles per hour on a stretch of highway where the posted speed limit was 55 miles per hour. Deputy Savage activated his emergency lights to conduct a traffic stop. Although traffic was light, the vehicle did not stop immediately, which Deputy Savage thought was unusual. At trial, he said:
The vehicle was slow to stop. After I got behind it, it rode in between two lanes for a little bit and it was delayed in stopping. The traffic-once it did get into the proper lane, the middle lane, it still continued on for quite a while-what I would consider a while and then finally pulled over to the shoulder.
When the vehicle came to a stop, Deputy Savage parked behind and approached the vehicle. Only the driver was inside. While speaking to the driver, Deputy Savage noticed a moderate-but not strong-odor of alcohol and that the driver was slow to respond to him. Deputy Savage asked the driver if he had just woken up because "everything he did was very slow and speech was slurred, eyes were pretty droopy." The driver told Deputy Savage that he was coming from Galveston, and he denied having just awoken and having had alcohol. Deputy Savage asked the driver, who was identified in court as appellant Kendall Wayne Thomas, for his driver's license and to step out of the car. Upon questioning, Thomas again denied having had anything to drink.
Based on Thomas's slow responses and behavior, Deputy Savage administered the following field sobriety tests: horizontal gaze nystagmus ("HGN"), walk-and-turn, and one-leg stand. Deputy Savage testified that Thomas exhibited six of six clues on the HGN test, six of eight clues on the walk-and-turn test, and one of four clues on the one-leg stand test. Deputy Savage concluded that Thomas "was too intoxicated to operate a vehicle safely," and he decided to place Thomas in custody. Deputy Savage told Thomas that he was under arrest for driving while intoxicated.
Deputy Savage asked Thomas to place his hands behind his back, but when he tried to apply handcuffs, Thomas pulled away and repeatedly asked why he was under arrest. Deputy Savage testified that Thomas "interlocked his fingers in some strange kind of way to where the second cuff couldn't get on his hand." The two men scuffled, each trying to bring the other to the ground. Deputy Savage then advised dispatch that he was fighting with Thomas.
Deputy Savage and Thomas were still fighting when they moved from the side of the highway to a ditch. While they fought in the ditch, Thomas kicked Deputy Savage-causing him pain-and turned, twisted, and flailed so that Deputy Savage could not put the handcuffs on him. The men continued fighting until Deputy Savage used his taser to stun Thomas, which allowed Deputy Savage to handcuff him.
Deputy Savage "drive stunned" Thomas on his right side near his ribs with a taser. At trial Deputy Savage explained what drive stunning means: "You remove the cartridge from the taser and still-you can still get a shock from it. That's for pain compliance."
Other deputies responded. Thomas was evaluated by EMS and further restrained for the drive to jail. Deputy Savage said that Thomas was not asked to give a blood or breath specimen due to his combative behavior.
Thomas was charged by indictment with assault on a public servant. The indictment alleged that Thomas
did then and there intentionally, knowingly, or recklessly cause bodily injury to [A.] Savage by kicking Complainant using Defendant's foot or feet, and the defendant did then and there know that the said [A.] Savage was then and there a public servant, to-wit: peace officer, and that the said [A.] Savage was then and there lawfully discharging an official duty, to-wit: attempting to detain Defendant.
Thomas was also charged by indictment with driving while intoxicated "third or more." The indictment alleged that Thomas was previously convicted of an offense relating to the operation of a motor vehicle while intoxicated first on March 4, 2004, and again on May 26, 2018.
At trial, in addition to Deputy Savage's testimony, the State presented testimony from Galveston County Sheriff's Office Corporal T. Powell, who has extensive training and experience in fingerprint comparison. He testified that Thomas's fingerprints matched those associated with the judgments for the alleged 2004 and 2018 prior convictions.
The State also introduced a video showing the traffic stop, the field sobriety tests, and the scuffle in the ditch. On the video, Deputy Savage tells Thomas that he was stopped for speeding. Deputy Savage also tells Thomas that he believes Thomas is intoxicated and that he is under arrest for driving while intoxicated.
The defense rested without introducing evidence, and the jury found Thomas guilty of both charged offenses.
In the punishment phase of trial, the State introduced testimony from two League City police officers who were involved in the arrest of Thomas in a separate incident two years prior to this case. In March 2019, Thomas was apprehended after an altercation at a motel. When the police officers attempted to arrest Thomas, Thomas resisted by pulling away, refusing to walk to the patrol car, spitting on the officers, kicking the door of the patrol car, and banging his head against the patrol car partition. Both officers testified that Thomas was intoxicated at the time. One officer, when asked what happened when he made contact with Thomas on the night of the 2019 incident, testified:
I spoke to [another suspect]. Well, I asked all of the individuals if they were involved with [the altercation]. The white male . . . advised that they were. I spoke to [Thomas]. [Thomas] refused to identify himself and did not want to talk to me. [A second officer] then tried to get him to identify himself and he refused again. At one point, he called me a skinhead. And then [a third officer] told him that he needed to identify himself.
Defense counsel objected: "This is a narrative response." The trial court sustained the objection. Defense counsel then asked that "the jury be instructed to disregard that response." The trial court denied the request.
The State also introduced judgments showing Thomas's prior convictions spanning from 2003 to 2018.
Thomas's father testified that his son, who was 41 years old at the time of trial, was hardworking and respectful when sober, but he acknowledged that his son had an alcohol problem and that his demeanor and behavior were different when he was intoxicated. Thomas's father testified that his son had made some progress addressing his alcohol problem and asked the jury for community supervision to allow Thomas additional time for rehabilitation. Thomas's father also indicated that he, Thomas's mother, and Thomas's brother would all provide Thomas with help and support to rehabilitate himself and comply with terms of community supervision. On cross-examination, the State asked Thomas's father if he was aware of each of his son's prior convictions. He was aware of some, but not all.
For the charge for assault on a public servant, the jury assessed punishment of "confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 10 years, and in addition thereto a fine of $5,000." The jury also found that Thomas had not previously been convicted of a felony and recommended community supervision and that his sentence be probated as to confinement and as to fine. For the charge of driving while intoxicated third or more, the jury assessed punishment of confinement for 4 years and no fine. The jury did not recommend community supervision on this sentence.
The trial court entered judgment on the jury's verdicts, and Thomas appealed.
Analysis
On appeal, Thomas raises one issue as to each of his convictions. Regarding the conviction for assault on a public servant, he argues that the court erred by denying his request to charge the jury on resisting arrest as a lesser-included offense of assault on a public servant. Regarding his conviction for driving while intoxicated after two prior convictions for driving while intoxicated, he argues that the court erred by denying his motion to strike testimony that he called a police officer a "skinhead" after the trial court sustained his objection that the officer's testimony was in narrative form.
I. The trial court did not abuse its discretion by denying the request for an instruction on resisting arrest, which Thomas alleged was a lesser-included offense of assault on a public servant.
In reviewing a jury charge, we first determine whether the instruction is erroneous. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, then the appellate court must analyze that error for harm. Id.
We review a trial court's denial of a request for a lesser-included-offense instruction for an abuse of discretion. Brock v. State, 295 S.W.3d 45, 49 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd); see Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005). An offense is a lesser-included offense of a charged offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.Tex. Code Crim. Proc. art. 37.09.
A two-part test is used to determine whether a defendant is entitled to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d 377, 382-83 (Tex. Crim. App. 2012). The first step, which is a question of law, "compares the elements alleged in the indictment with the elements of the lesser offense" to determine "if the proof necessary to establish the charged offense also includes the lesser offense." Id. at 382. The second step requires consideration of whether there is some evidence that would allow a rational jury to acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. at 383; Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016).
Thomas was charged with assault on a public servant under Penal Code section 22.01(a). Thomas argues that he was entitled to a jury instruction on the lesser-included offense of resisting arrest, an offense punishable under Penal Code section 38.03. As charged in the indictment, a person commits the offense of assault on a public servant if he (1) intentionally, knowingly, or recklessly (2) causes bodily injury (3) to a person the actor knows is a public servant (4) while the public servant is lawfully discharging an official duty. See Tex. Penal Code § 22.01(a)(1), (b)(1). A person commits the offense of resisting arrest, search, or transportation if the person: (1) intentionally (2) prevents or obstructs a person he knows is a peace officer (3) from effecting an arrest, search, or transportation of the actor (4) by using force against the peace officer. Id. § 38.03(a).
Thomas argues that the first step of the test for determining whether an offense is a lesser-included offense of a charged offense is met in this case. We disagree. We have previously held that because the elements of the offense of resisting arrest differ from the elements of assault on a public servant, the proof necessary to establish assault on a public servant does not include the proof necessary to establish the offense of resisting arrest. See Steele v. State, 490 S.W.3d 117, 128 (Tex. App.-Houston [1st Dist.] 2016, no pet.).
The offense of resisting arrest contains "several elements that are not functionally the same or less than those required to prove the charged offense" of assault on a public servant. First, the offense of assault on a public servant "includes a reckless mental state whereas resisting arrest proscribes only intentional conduct." The assault offense requires the infliction of bodily injury upon the public servant "whereas resisting arrest may occur with no injury at all to the peace officer involved." And finally, resisting arrest requires proof that the peace officer be in the process of effecting an arrest, search, or transportation of the actor when the actor uses "force" to "prevent or obstruct" the attempted conduct; in contrast, the assault offense requires the public servant be "lawfully discharging an official duty," which may or may not involve an arrest.Id. (quoting Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.-Beaumont 2001, pet. ref'd).
We likewise conclude that resisting arrest is not a lesser-included offense of assault on a public servant because the first step is not satisfied. We overrule this issue.
II. The trial court did not abuse its discretion by denying the request to strike testimony after defense counsel objected that the testimony was in narrative form.
During the punishment phase, a law enforcement officer testified about an incident in 2019 in which Thomas was arrested after an altercation. According to the officer, Thomas was intoxicated and uncooperative. During his testimony, the officer testified that during the investigation of the altercation, Thomas called him a "skinhead." In the trial court, Thomas objected on the grounds of "narrative" and then moved to strike the officer's testimony without further argument. On appeal, Thomas contends that the trial court reversibly erred by denying the motion to strike the testimony because the injection of language with racial animus deprived him of a fair trial.
We will overrule this issue because the argument on appeal does not comport with the objection made in the trial court.
To preserve error for appellate review, the "complaining party must let the trial judge know what she wants and why she thinks she is entitled to it, and do so clearly enough for the judge to understand and at a time when the trial court is in a position to do something about it." Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); see Tex. R. App. P. 33.1(a) (stating rule for preservation of error). On appeal, Thomas argues that the court should have struck the testimony due to the inflammatory nature of the racial epithet that the police officer attributed to Thomas. This argument does not comport with the objection made at trial, and therefore it is not preserved for appeal. See Bekendam, 441 S.W.3d at 300 ("We are not hyper-technical in examination of whether error was preserved, but the point of error on appeal must comport with the objection made at trial."). We overrule this issue.
Conclusion
We affirm the judgments of the trial court.