No. 05-03-01598-CR
Opinion Filed November 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81116-03. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
Opinion By Justice RICHTER.
A jury convicted Del Douglas Ludlam of assault on a public servant and assessed punishment at five and one-half years confinement and a $300 fine. On appeal, Ludlam asserts in three points of error that the evidence is factually insufficient to support the conviction and the trial judge erred in denying his request for a jury instruction on the lesser-included offenses of resisting arrest and resisting transportation. We affirm.
Background
Two Home Depot loss prevention officers detained Ludlam after observing him shoplift. Ludlam did not physically resist the detention or placement of handcuffs. However, he refused to provide his identifying information to the officers. The officers then contacted the city police, and Officers Tonya Cody and Aaron Merritt responded to the call. When Ludlam saw Cody and Merritt, he began cursing, told them he had AIDS and hepatitis, threatened to spit on them, and spit into a trash can. Merritt obtained Ludlam's identifying information and placed him under arrest. Because of Ludlam's threatening behavior, Cody called her supervisor, Sergeant Erin Thornton, and requested a "spit mask." When Thornton arrived, Ludlam was handcuffed, standing at the rear of Cody's patrol car, and Merritt was holding him down as he continued to exhibit threatening behavior. Over Ludlam's face was the hood of his jacket, which Merritt had placed to prevent being spit on. As Thornton removed the hood from Ludlam's face and began placing the "spit mask" on Ludlam, Ludlam began to flail, moved his head towards Thorton's hand, and bit her. He then spit on Cody. Ludlam was subsequently charged with assaulting Thornton. At trial, the Home Depot officers, Cody, and Merritt acknowledged they did not actually see Ludlam bite Thornton and did not actually know whether the bite was intentional or accidental. They did, however, hear Thornton say she had been bitten and saw her "jerk her hand back" and shake it as if in pain. Cody also testified that she later saw Thornton's hand and the right pinky between the knuckle area was "reddish, purple." Thornton testified she did not see Ludlam bite her either but felt pain and pressure on her right pinky. She also testified she felt Ludlam's behavior was intentional. Ludlam did not testify or call any witnesses. Lesser-Included Offenses
In his first two points of error, Ludlam complains the trial judge erred in denying his request for a jury instruction on the lesser-included offenses of resisting arrest and resisting transportation. Ludlam bases his arguments on his perceived lack of evidence showing he intended to injure Thornton. In arguing these points, Ludlam notes that neither of the Home Depot officers nor Cody or Merritt saw him bite Thornton. Additionally, none of these witnesses testified Ludlam acted deliberately. Ludlam maintains that if given the opportunity, the jury could have found that he accidentally injured Thornton while trying to prevent the placement of the mask and thus was guilty only of one of the two lesser-included offenses. We disagree. A trial judge is required to instruct the jury on a lesser-included offense if the lesser-included offense is included within the proof necessary to establish the offense charged and some evidence exists that would permit a jury to rationally find that if the defendant is guilty, he is guilty of only the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). There are two ways in which evidence may indicate a defendant is guilty of only the lesser offense: if it (1) negates or refutes other evidence establishing the greater offense or (2) is subject to different interpretations. Saunders v. State, 840 S.W.2d 390, 392 (Tex.Crim.App. 1992). A person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to the public servant while the public servant is lawfully discharging an official duty. Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp. 2004-05). A person commits the offense of resisting arrest or transportation if he intentionally prevents or obstructs a person he knows is a peace officer from effecting his arrest or transportation by using force against the peace officer. Id. § 38.03(a) (Vernon 2003). The offenses of resisting arrest and resisting transportation may be lesser-included offenses of assault on a public servant. See Sutton v. State, 548 S.W.2d 697, 699 (Tex.Crim.App. 1977). However, if the public servant suffers bodily injury, the trial judge is not required to instruct the jury on resisting arrest or transportation, even if the defendant intended only to commit those offenses. See Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App. 2001); Oiler v. State, 77 S.W.3d 849, 852 (Tex.App.-Corpus Christi 2002, pet. ref'd). In this case, the record reflects from the moment Cody and Merritt arrived Ludlam began telling them he had AIDS and hepatitis and would spit on them. The record further reflects he spit into a trash can and continued his threatening behavior even after Thornton arrived with the spit mask. Although none of the witnesses may have actually seen Ludlam bite Thornton, Thornton testified she felt pressure and pain on her right pinky and it was "reddish, purple" afterwards. In addition, the other witnesses heard her say Ludlam bit her and observed her "jerk her hand" and shake it as if in pain. Although these witnesses may not have actually known whether Ludlam acted deliberately, Thornton testified she felt he did, and this testimony is consistent with Ludlam's threatening language. Even if Ludlam had intended only to prevent his arrest or transportation, the bite, at the very least, recklessly caused Thornton to suffer bodily injury. See Lofton, 45 S.W.3d at 652. No evidence exists in the record refuting that Thornton was injured. Because Thornton was injured, Ludlam could not be guilty only of the lesser-included offense of resisting arrest. See Oiler, 77 S.W.3d at 852. Accordingly, the court did not err in failing to give the requested instructions. We overrule Ludlam's first two points of error. Sufficiency of the Evidence to Support Conviction
In his third point, Ludlam complains the evidence is factually insufficient to support the conviction. In arguing this point, Ludlam reiterates the contention he raised in his first two points that there is no evidence he actually intended to cause injury to Thornton. Ludlam further asserts there is no evidence he even knowingly or recklessly injured her. Ludlam maintains that at most, the evidence shows he accidentally injured Thornton while he tried to prevent the placement of the mask. Again, we disagree. In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. April 21, 2004). In making this determination, we are mindful that the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Viewing the evidence in this case under a neutral light, we conclude Ludlam's threatening language and behavior from the moment Cody and Merritt arrived combined with his actual biting of Thornton shows an intent to cause bodily injury or knowledge that bodily injury would occur. See Henley v. State, 98 S.W.3d 732, 735 (Tex.App.-Waco 2003, pet. ref'd) (jury can infer intent or knowledge from acts, conduct, and remarks of accused and surrounding circumstances); Dunn v. State, 13 S.W.3d 95, 98 (Tex.App.-Texarkana 2000, no pet.) (same). With no contrary evidence in the record, we conclude the jury was rationally justified in finding beyond a reasonable doubt that Ludlam was guilty of assaulting Thornton. We overrule Ludlam's third point of error. We affirm the trial court's judgment.