Hall v. State

Full title: Paxton HALL, Appellant v. The STATE of Texas, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jan 21, 2004

No. 04-02-00562-CR (Tex. App. Jan. 21, 2004)

Opinion

No. 04-02-00562-CR.

Delivered and Filed: January 21, 2004. DO NOT PUBLISH.

Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2001CR6367, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.

MEMORANDUM OPINION

Opinion by: KAREN ANGELINI, Justice.

Paxton Hall was convicted of assaulting a public servant and was sentenced to thirty-five years imprisonment. He brings three issues on appeal. We overrule all issues and affirm the judgment of the trial court.

Background

On August 25, 2000, Hall was on parole for the offense of aggravated robbery. Because Hall had allegedly violated the terms of his parole, there was an outstanding warrant for his arrest. Receiving a tip from Hall's mother that he was at home, Officers Schrenckenbach and Roussel went to Hall's home to arrest him. Upon their arrival, they met a man and a woman in the backyard of Hall's home. One of the officers asked the man his name. The man responded, "Paxton Hall." Officer Roussel told Hall that he was under arrest. In response, Hall turned and ran away from the officers. Schrenckenbach and Roussel pursued Hall on foot. Another officer, Officer Woods, also joined in the pursuit. After about a block and a half, Roussel approached Hall in the driveway of a home. Hall then walked toward Roussel and punched Roussel in the face with a closed fist. As a result, Roussel was knocked down on the ground. Hall then ran away and was eventually cornered in a backyard by Officer Carrion. Officer Carrion ordered Hall to get on the ground. According to Carrion, Hall started to come toward him. Carrion again ordered Hall to get on the ground. When Carrion stepped backwards, Hall came at him. Carrion took out his baton, ordered Hall to the ground again, and struck Hall on the lower leg with the baton. The strike had no effect on Hall. Hall went past Carrion and tried to climb a fence to escape the officer. Carrion pulled Hall off the fence. When Hall was back on the ground, he turned toward Carrion and struck Carrion in the face with his closed fist. In response, Carrion struck Hall with his baton. Hall shoved Carrion. Carrion hit his emergency tone, alerting the other officers that he was in danger. Carrion and Hall scuffled on the ground. Carrion finally gained control of the situation, and the other officers arriving on the scene helped Carrion handcuff and subdue Hall. Because Hall refused to walk to the police car, four officers had to carry him to the car. Hall was indicted in a two count indictment for the felony offense of assault of a public servant. Count I alleged Hall assaulted Officer Carrion. Count II alleged Hall assaulted Officer Roussel. Hall entered a plea of not guilty and a jury trial was held. The jury found Hall not guilty on count I, but found him guilty as charged under count II of the indictment. Hall now appeals.

Extraneous Bad Acts

In his first issue, Hall argues that the trial court abused its discretion in allowing the State to elicit evidence regarding Hall's status as a parolee for the offense of aggravated robbery in violation of Texas Rules of Evidence 403 and 404(b). At trial Officer Roussel testified that the warrant for Hall's arrest was based on a parole violation and that Hall had been placed on parole for robbery. According to Roussel, typically, many officers are usually used when arresting a person for a parole violation, especially if that person was on parole for having committed a violent felony. Thus, in Hall's situation, there were many officers at or near the scene. According to Hall, this testimony violates rules 404(b) and 403. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996). Rule 404(b) provides,

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.

Tex. R. Evid. 404(b). Here, the State argues that Roussel's testimony was admissible to establish Hall's motive and to rebut a defensive theory. With regard to motive, Hall emphasizes that motive is not an element of assault and is, therefore, irrelevant to whether he assaulted a public servant. Although motive is not an element of assault, the State is always entitled to offer evidence of motive, even if it involves extraneous acts, if the evidence is relevant as a circumstance tending to prove the commission of the offense. Gosch v. State, 829 S.W.2d 775, 783 (Tex.Crim.App. 1991). Here, Hall's desire to avoid being incarcerated for violating his parole was the triggering factor of the chain of events which ultimately resulted in the assault of Officer Roussel. However, evidence admissible under rule 404(b) is still subject to exclusion under rule 403 if it is more prejudicial than probative. Alba v. State, 905 S.W.2d 581, 585 (Tex.Crim.App. 1995); Gosch, 829 S.W.2d at 783. We presume that the trial court engaged in a balancing test under rule 403. In determining whether the probative value of the evidence is greatly outweighed by the danger of unfair prejudice, the trial court should have weighed the following factors: (1) its inherent probativeness, i.e., how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence; (2) the potential of the extraneous conduct to impress the jury in some irrational but nevertheless indelible way; (3) the amount of trial time needed by the proponent to develop evidence of the extraneous misconduct such that the jury's attention is diverted from the charged offense; and (4) the degree of the proponent's "need" for the extraneous misconduct. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). Here, the evidence of Hall's parole status explained why he resisted arrest and assaulted Officer Roussel. Without the evidence that the warrant was for a parole violation for an underlying robbery, the jury would have been unable to understand why Hall did not wish to be apprehended. While admitting evidence of Hall's status as a parolee did carry the danger of impressing the jury "in some irrational but nevertheless indelible way," the State never inquired into the underlying facts concerning either the robbery or the conduct that resulted in the parole violation. Wyatt, 23 S.W.3d at 26. We, therefore, conclude that the trial court's decision to admit the evidence fell within the zone of reasonable disagreement and was not an abuse of discretion. However, even if the trial court erred in admitting the evidence, we must disregard the error unless it affected Hall's substantial rights. Tex.R.App.P. 44.2(b). Substantial rights are affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).We must examine the record as a whole and may only overturn the conviction if we have "a grave doubt that the result was free from the substantial influence of the error." Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002). As noted previously, the State never inquired into the underlying facts concerning either the robbery or the conduct that resulted in the parole violation. Moreover, Hall's mother testified at trial without objection that Hall had been living with her "ever since he had came [sic] back from prison the last time." And, the bulk of the testimony at trial concerned Hall's alleged assault of Officer Roussel and Hall's eventual apprehension, not his status as a parolee or any alleged violation of his parole. Finally, the evidence of Hall's guilt was substantial and not rebutted by other evidence. Therefore, even if the trial court had committed error, any such error would be harmless.

Lesser-Included Offense

In his second issue, Hall complains that the trial court erred in refusing to instruct the jury on the lesser-included offense of resisting arrest. To determine whether a defendant is entitled to an instruction on a lesser-included offense, a two-prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001). In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Id. The State does not contest that the first prong of the test was satisfied. Thus, the issue is whether there is some evidence that would permit a rational jury to find that Hall is guilty only of resisting arrest. A person commits the offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another. Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003). A person commits the offense of assault of a public servant if the person intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Id. § 22.01(a)(1), (b)(1) (Vernon Supp. 2003). According to Hall, "defense counsel elicited testimony from officers involved in [Hall]'s arrest which established the amount of force used against [Hall]." Thus, Hall argues that "the force exhibited by [Hall] in relation to the force exhibited by the police only constituted the amount of force involved in resisting arrest, rather than in assault of a police officer." Hall, however, fails to cite or specify what evidence at trial supports this assertion, and as such, has not sufficiently briefed this issue. See Tex.R.App.P. 38.1(h). Even if Hall had properly briefed this issue, the trial court did not err in failing to instruct the jury on the lesser-included offense of resisting arrest. In Lofton v. State, 45 S.W.3d 649, 649 (Tex.Crim.App. 2001), the appellant, Lofton, was convicted of assaulting a public servant. The State's evidence showed that when a police officer attempted to arrest Lofton, Lofton struck the officer twice in the face. Id. at 652. Lofton testified that he did not commit any offense — he did not assault the police officers and he did not resist arrest. Id. On appeal, Lofton complained that the trial court erred in denying his request for a lesser-included instruction on resisting arrest. The court of criminal appeals held that Lofton was not entitled to an instruction, because the evidence did not raise the issue of the lesser-included offense. Id. Lofton's own testimony that he committed no offense was not adequate to raise the issue. Id. According to the court of criminal appeals, the evidence must establish that if a defendant is guilty, he is guilty only of the lesser-included offense. Id. Regardless of Lofton's intent, the State proved that Lofton assaulted the police officer. Because resisting arrest was not a rational alternative to assault on a public servant in Lofton's case, the trial court did not err in failing to instruct the jury. Id. Likewise, here, there is only evidence that Hall assaulted a public servant. Officer Schrenckenbach testified that when he and Officer Roussel arrived at Hall's home, they went into the backyard and saw a man who identified himself as Paxton Hall. Hall turned and ran away from the officers. Roussel and Schrenckenbach pursued Hall on foot. According to Schrenckenbach, during the pursuit, he saw Roussel standing in a driveway of a home, ordering Hall to come out from behind a car. Schrenckenbach then saw Hall walk up to Roussel and punch Roussel in the face with a closed fist. Roussel was knocked to the ground. Officer Roussel also testified that Hall just walked right up to him and with his right fist, punched him in the eye. According to Roussel, he suffered physical pain as a result. A photograph of Officer Roussel's injury was introduced in evidence. The defense put on no evidence. Upon our review of the record, we find no evidence from which a jury could rationally have acquitted Hall of assault of a public servant while convicting him of resisting arrest. We overrule Hall's second issue.

Statement of Hall's Mother

In his third issue, Hall complains that harmful error occurred "when the jury was provided the statement of one of the State's witnesses, [Hall]'s mother, during its deliberations, despite the fact that the statement was not admitted into evidence." At trial, the State attempted to introduce the statement of Hall's mother, but the defense objected. The trial court sustained the objection. The statement, however, is included in the reporter's record on appeal. According to Hall, it must logically follow that since the statement is in the reporter's record, it must have also been shown to the jury during the jury's deliberations. Hall emphasizes that there were a number of exhibits that were marked during trial but not admitted in evidence. According to Hall, none of these exhibits were included in the appellate record. Thus, Hall concludes that because the statement of his mother was included in the appellate record means that the jury viewed the statement. We disagree with Hall's conclusions. There is simply no evidence in the record to show that the statement of Hall's mother was included among the exhibits given to the jury during deliberations. We overrule Hall's third issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.