Opinion
No. 05-04-01243-CR
Opinion Filed July 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-55135-MP. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
Quincy Ali Caldwell appeals his conviction for assault on a public servant. The jury found Caldwell guilty, and the trial court assessed punishment at five years' confinement. Appellant appeals on two grounds, claiming (1) the evidence is factually insufficient to support the jury's verdict and (2) the jury charge was fundamentally defective in failing to instruct on the lesser included offense of resisting arrest. We affirm. I. Factual Sufficiency of the Evidence A. Standard of Review In his first issue, appellant complains the evidence is factually insufficient to show he acted with the requisite mens rea for assault on a public servant. In a challenge to the factual sufficiency of the evidence, we examine all of the evidence in a neutral light to determine if the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We examine all evidence impartially and give deference to the jury's verdict and determinations regarding the credibility of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Evidence may be factually insufficient if (1) the evidence supporting the verdict is by itself too weak to support a finding of guilt beyond a reasonable doubt, or (2) examination of the evidence supporting and contrary to the verdict shows the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 485. B. Applicable Law To convict appellant of assault on a public servant, the State was required to show that appellant intentionally, knowingly, or recklessly caused bodily injury to a person the appellant knew was a public servant while the public servant was discharging an official duty. See Tex. Pen. Code Ann. §§ 22.01(a) 22.01(b)(1) (Vernon 2003 Supp. 2004-05). A person acts intentionally when it is his conscious objective or desire to engage in conduct or produce a result. Id. at § 6.03(a). A person acts knowingly if he is aware that his conduct is likely to cause the result. Id. at § 6.03(b). A person acts recklessly with respect to the circumstances surrounding his conduct or the result of his conduct if he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. at § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care an ordinary person would exercise under all circumstances as viewed from the actor's standpoint. Id. C. Analysis Shortly after midnight on September 2, 2003, Dallas Police Officers Johnann Ortega and Kimberly Bauman responded to a family disturbance call at an apartment located at 1833 South Boulevard in South Dallas. When the officers arrived, appellant and his mother were arguing outside the apartment. The officers spoke with them and learned they were arguing about a quarrel that had occurred between appellant and his mother's boyfriend, who was inside the apartment. Appellant lived in the apartment with his sister, his mother, and his mother's boyfriend. Officer Ortega suggested that appellant leave the apartment in order to allow the situation to stabilize and the officers followed appellant into the apartment to pack his clothing. While appellant was still inside the apartment, Officer Ortega checked with the police department and discovered appellant had outstanding warrants. Officer Ortega testified at trial that he did not plan to arrest appellant so long as he left the apartment peacefully. Appellant voluntarily left the apartment and began to walk down the stairs with the officers behind him. Appellant stopped on the landing midway down the stairs to inform the officers that he did not want to leave, and Officer Ortega decided to take appellant into custody. Officer Ortega announced to appellant that he planned to arrest him on the warrants and reached for appellant's left hand in order to handcuff him. Appellant attempted to jerk his arm away, but Officer Ortega maintained his hold on appellant's arm. When appellant continued descending the stairs, Officer Ortega lost his balance and the two men fell to the ground at the foot of the stairs. Officer Ortega sprained his right ankle and skinned his elbow as a result of the fall. The eyewitness testimony presented at trial confirmed that appellant struggled with the officers. Although Officer Ortega testified he did not believe appellant intended to knock him to the ground or force him down the stairs, we conclude the evidence is factually sufficient to support a finding that appellant recklessly caused bodily injury to Officer Ortega. See Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App. 2001) (conviction for assault on a public servant was proper where appellant resisted arrest by flailing and hitting the officers); Oiler v. State, 77 S.W.3d 849, 851-52 (Tex.App.-Corpus Christi 2002, pet. ref'd) (use of force when resisting arrest that causes injury to officers constitutes recklessness); Gumpert v. State, 48 S.W.3d 450, 453 (Tex.App.-Texarkana 2001, pet. ref'd) (struggling, flailing about and kicking during arrest was reckless and constituted assault on a public servant because it resulted in bodily injury to an officer). II. Jury Charge In his second issue, appellant contends the trial court's failure to instruct the jury on the lesser included offense of resisting arrest egregiously harmed appellant because the jury was only authorized to convict him of the greater offense or to acquit. Appellant did not request an instruction on the lesser included offense of resisting arrest, nor did he object to its omission. When appellant does not request an instruction on a lesser included offense or timely object to its omission, any error regarding the trial court's failure to instruct on the lesser included offense is waived, even where the lesser included offense is supported by the evidence. See Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998); Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485 (Tex.Crim.App. 1994); Mohammed v. State, 127 S.W.3d 163,169 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Darnes v. State, 118 S.W.3d 916, 921 (Tex.App.-Amarillo 2003, pet. ref'd). Appellant waived his right to appeal the jury charge when he failed to request or object to the omission of an instruction on resisting arrest at trial. We conclude that the trial court did not err in failing to instruct the jury on resisting arrest. We affirm the trial court's judgment.