Opinion
No. 08-02-00023-CR.
January 23, 2003. DO NOT PUBLISH.
Appeal from the 86th District Court of Kaufman County, Texas (TC# 20582).
Panel No. 4: BARAJAS, C.J., LARSEN, and McCLURE, JJ.
OPINION
Jimmy Paul Wooldridge appeals from his conviction for aggravated assault. Wooldridge pleaded guilty to the indictment and chose to be sentenced by a jury. The jury sentenced Wooldridge to eighteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. We affirm.
Facts
After finishing his shift at 6 p.m. on February 8, 2001, Officer Edward Black, police officer for the City of Kaufman, was driving home from work. He drove his personal vehicle but was still wearing his uniform. He heard dispatch over his portable radio reporting a possible drunk or reckless driver in a green and white pickup. Officer Black then saw the green and white pickup nose down in a ditch. He pulled over to the side of the road and radioed the accident to dispatch. Police officers are required to act if they see a dangerous situation, whether they are on duty or off duty. While Officer Black was checking to see if anyone was in the vehicle, he heard a scream at a nearby gas station. When he looked toward the gas station, he saw a white male, Mr. Jimmy Wooldridge, standing by a car pounding on it with both fists. The car "peeled off" and the man that was banging on the car stumbled out into the road. Officer Black then pulled up behind Wooldridge and called dispatch with a request for assistance. As Officer Black was getting out of his car to keep Wooldridge from going into the road, Wooldridge came toward him with a knife saying, "You need something, cop? I got something for you, cop. I got something for you, cop." Wooldridge then lunged at Officer Black with the knife, but the officer caught his wrist. As the officer was pulling his weapon with the other hand, he lost his balance and fell back into his car. He then found the assailant on top of him in the car with the knife yelling, "I'm going to kill you, cop. I'm going to kill you. You kill me or I'm going to kill you." Officer Black managed to pin Wooldridge's wrist to the top of the car with one hand, and held his gun to the assailant's stomach with the other. He then moved his gun to the attacker's neck, reasoning that he would be able to avoid hitting an onlooker. Wooldridge continued lunging with the knife as the officer held his wrist. Since they were both sweating, Officer Black began to lose his grip on Wooldridge's wrist. With his gun at the assailant's throat, Black closed his eyes and "got ready to pull the trigger." At that moment, he heard sirens, knew the other officers had arrived, and eased his finger off the trigger. Officer Douglas Barker then approached behind Wooldridge. Officer Black directed him to reach in and get the knife from Wooldridge. He slid his hand down Wooldridge's arm and grabbed the knife. At that time, Sergeant Johnny Gilmore grabbed Mr. Wooldridge from behind and pulled him out of the car. The entire struggle in the car took about a minute and a half to two minutes. Wooldridge was indicted for the attack on Officer Black. He did not deny the facts and pleaded guilty to the indictment. Before the jury on punishment, Wooldridge testified that he just snapped. He was having a difficult time with an injury that put him out of work, there was financial strain, and he had discovered that his wife had growths in her throat that they feared were cancerous. For his injury and depression he was taking a number of medications. That afternoon, Wooldridge was feeling particularly depressed so he went to his brother-in-law's to talk and drink a few beers. Feeling even more depressed, he then left to head home. He was the driver of the green and white truck that originally called Officer Black's attention to the scene. The tire had blown, and because of the injury or the medication, Wooldridge could not repair it by himself. Frustrated, he just drove on the rim until the steering went out and the tire went into the ditch. As he walked away from the truck, a boy started giggling and making fun of him. That was the driver of the car that the officer saw Wooldridge banging on before it sped away. By the time Wooldridge encountered Officer Black, he was so enraged and unhappy about his life in general, he claims, that he really did want the officer to shoot him. The indictment was sufficient to warrant a charge to the jury with the punishment range for a first-degree felony In his sole point of error, Wooldridge claims that the trial court erred in charging the jury that the offense was a first-degree felony, a complaint of construction and notice rather than of defect or variance. Appellant points out that the necessary allegation that Wooldridge knew that Officer Black was an officer is missing from the indictment. See Zubia v. State, 998 S.W.2d 226, 229 (Tex.Crim.App. 1999) (Meyers, J., dissenting). Section 22.02 of the Texas Penal Code directs that aggravated assault is a second-degree felony unless one of three situations exists. TEX. PENAL CODE ANN. § 22.02(b) (Vernon 1994). Among those three situations is section 22.02(b)(2):(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:
. . .
(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.TEX. PENAL CODE ANN. § 22.02(b)(2). Here, the indictment reads:
JIMMY PAUL WOOLDRIDGE . . . did then and there intentionally and knowingly threaten EDWARD BLACK with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit:
a knife, that in the manner of its use or intended use is capable of causing death or serious bodily injury, during the commission of said assault and the said EDWARD BLACK was then and there a public servant acting under color of his office, to-wit:
a City of Kaufman, Texas, police officer. . . .This is not a dispute over whether or not Wooldridge actually knew Officer Black was a police officer, rather he claims that the indictment does not support the charge of a first-degree felony. Counsel for the defense never filed a written motion to quash the indictment, but he did object the morning of voir dire to charging Wooldridge with a first-degree felony. The trial judge overruled the objection explaining, "if your question is what degree, if he's found guilty, I'm going to charge the jury on first degree punishment." Counsel then explained that he would object at the time the jury was charged. Later that afternoon, after the jury had been selected, the judge properly admonished Wooldridge and received a plea of guilty. The next morning, before taking testimony from the witnesses in the sentencing phase before the jury, the judge ensured that Wooldridge knew the range of punishment he would be exposed to included "five to 99 years in the penitentiary or life imprisonment and a fine not to exceed $10,000," the range for a first-degree felony. TEX. PENAL CODE ANN. § 12.32 (Vernon 1994). Wooldridge maintained his plea of guilty. Thus, Wooldridge claims that the indictment did not allege a first-degree felony range of punishment because it does not include the critical element that Wooldridge knew that Officer Black was a public servant discharging official duties. We agree that the indictment, although stating that Officer Black at the time of the assault "was then and there a public servant acting under color of his office, to-wit:
a City of Kaufman, Texas, police officer," it does not allege that the defendant knew of that fact.We review this issue under a two-step review. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984), cert. denied, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed.2d 507 (1987), superceded by Rodriguez v. State, 758 S.W.2d 787, 788 (Tex.Crim.App. 1988); Evans v. State, 945 S.W.2d 153, 155 (Tex.App.-El Paso 1997, no pet.). First, we determine whether there was actual charge error, and if so, we then determine whether sufficient harm resulted to require reversal. Evans, 945 S.W.2d at 155 (citing Almanza, 686 S.W.2d at 171; Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994)). Here the jury was charged to assess punishment as a first-degree felony. The starting point for this Court is to determine if the indictment justifies such a charge. Construction of an indictment is a matter of law, which we review de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We conclude that the indictment does support the first-degree element charge. In general, an indictment must plead each element that must be proven at trial. TEX. CODE CRIM. PROC. ANN. art. 21.03 (Vernon 1989); Green v. State, 951 S.W.2d 3, 4 (Tex.Crim.App. 1997). An indictment must contain the elements of the offense charged, fairly inform the defendant of the charges he must prepare to meet, and enable the defendant to plead acquittal or conviction in bar to future prosecution for the same offense. TEX. CODE CRIM. PROC. ANN. art. 21.11 (Vernon 1989); Harrison v. State, 76 S.W.3d 537, 539 (Tex.App.-Corpus Christi 2002, no pet.) (citing Sanchez v. State, 928 S.W.2d 255, 259 (Tex.App.-Houston [14th Dist.] 1996, no pet.)). At a minimum, the indictment must be sufficient to give notice of what offense the State is alleging so the controlling penal provision can be identified. Fisher v. State, 887 S.W.2d 49, 55 (Tex.Crim.App. 1994), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). The resulting instructions to the jury are then considered in light of the indictment and the applicable section of the Texas Penal Code and a hypothetically correct jury charge. See Fisher, 887 S.W.2d at 55-56; Malik, 953 S.W.2d at 239-40. Although the issues here are not the same as those in Fisher or Malik, the issues of notice and the relationship of the indictment to the applicable statute in those cases are instructive in the determination of Wooldridge's petition to this Court. When construing an indictment, we read the indictment as a whole, applying practical, rather than technical considerations. Harrison, 76 S.W.3d 539 (citing Oliver v. State, 692 S.W.2d 712, 714 (Tex.Crim.App. 1985); Soto v. State, 623 S.W.2d 938, 939 (Tex.Crim.App. 1981)). However, the indictment must not leave anything to inference or intendment. Green, 951 S.W.2d at 4 (citing Chance v. State, 563 S.W.2d 812, 814-15 (Tex.Crim.App. 1978)). Comparing this indictment with the language of section 22.02(b), it is clear that a perfect indictment would have said that Wooldridge knew Officer Black was a public servant discharging an official duty. Article 21.11, however, does not require a perfect indictment. The reading of the indictment that Wooldridge proposes, however, would leave the last clause of the indictment as an irrelevant, additional fact. Some significance must be given to this clause. We find defendant's reliance on the Green case misplaced. See Green, 951 S.W.2d at 4. There, defendant was indicted for failure to identify himself to a police officer, which he moved to quash because it failed to allege that he knew the person to whom he refused to identify himself was a police officer.