No. 05-09-01447-CR
Opinion Filed March 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 15th District Court, Grayson County, Texas, Trial Court Cause No. 058343-15.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice O'NEILL.
A jury convicted appellant Jake Curry Franklin of retaliation against a public servant under Texas Penal Code section 36.06. The court assessed punishment at six years' confinement. In five issues, he challenges the following: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the trial court erred by denying his motion to suppress because the officer failed to establish he had reasonable suspicion to stop him for reckless driving; (3) whether the trial court erred by denying him an article 38.23 instruction; and (4) whether trial counsel was ineffective. We affirm the trial court's judgment.
Background
On February 24, 2009, Officer Keith McGuire of the Sherman Police Department heard the loud squealing of tires coming from the parking lot of a Shell station. When he looked over, he saw a white Chevrolet pickup truck driving through the parking lot at a speed unsafe for pedestrians in the area. Officer McGuire stopped appellant for reckless driving. When he ran appellant's information, he discovered appellant was driving with a suspended license, without insurance, and with outstanding warrants. Officer McGuire placed appellant in handcuffs and attempted to get him in the back seat of his patrol car. Appellant became argumentative and belligerent and refused to get into the car. Officer McGuire knee struck appellant twice to get his leg to buckle in an attempt to slide appellant into the car. Appellant still did not cooperate so Officer Michael Young, the back up officer on the scene, touch stunned appellant's right shoulder. As appellant was getting into the backseat, he told Officer McGuire, "he would get his ass for taking him to jail," which Officer McGuire considered a threat. While in the backseat, appellant managed to maneuver his hands around to the front of his body, which required the officers to get him back out of the car and recuff him. Appellant again acted combative and had to be touch stunned. He also kicked Officer McGuire in the thigh and knee area, which Officer McGuire considered an assault and threat to his safety. Appellant continued to say "he would get his ass for putting him in jail." When appellant arrived at the jail, it took several people to get him inside and he eventually had to be restrained to a chair. He continued to make several more comments about how he would get back at Officer McGuire for putting him in jail. Appellant was indicted for retaliation against a public servant. A jury convicted him, and the trial court sentenced him to six years' confinement. This appeal followed. Sufficiency of the Evidence
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for retaliation against a public servant under section 36.06 of the penal code. He contends the evidence is insufficient to establish he intentionally or knowingly threatened to harm Officer McGuire by assault in retaliation for his status as a police officer. Further, he claims even if he threatened Officer McGuire, the evidence is insufficient to show the threat was actionable. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly harmed or threatened to harm another by unlawful act in retaliation for, or on account of, the service or status of another as a public servant. Tex. Penal Code Ann. § 36.06(a)(1) (West 2003 Supp. 2009); see Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (courts have interpreted "public servant" to include a police officer). Appellant's retaliatory motivation may be shown through circumstantial evidence. See Coward v. State, 931 S.W.2d 386, 389 (Tex. App.-Houston [14th Dist.] 1996, no writ). Officer McGuire testified appellant repeatedly told him he was going to "get his ass for putting him in jail." The jury also watched the dashboard videotape in which appellant can be heard saying "You better be glad I don't see you in the wrong place," and "If you was mother f___ing anywhere else, I would do something to you." Although appellant's counsel on cross-examination attempted to put the comments in context of appellant's threats to get his lawyer and sue Officer McGuire for excessive force, Officer McGuire testified based on appellant's combative behavior, he believed appellant was threatening him. Further, appellant kicked Officer McGuire in the thigh and knee area, which he considered an assault and threat to his safety. The jury also heard testimony from Officer Young confirming the statements appellant made to Officer McGuire, and Officer Young agreed the statements were threats. Further, the officers and sheriffs who helped restrain appellant upon his arrival at the jail confirmed his combative behavior and his continued threats towards Officer McGuire. Reviewing the evidence in the light most favorable to the verdict, the jury could have found appellant intentionally and knowingly harmed or threatened to harm Officer McGuire in retaliation for his service and status as an officer. See Moore v. State, 143 S.W.3d 305, 310 (Tex. App.-Waco 2004, pet. ref'd) (holding a jury may infer intent from the acts, words, and conduct of the accused). Likewise, although appellant also claims the evidence is insufficient to show the threat was actionable, nothing within section 36.06 requires the threat to be actionable. See Lebleu v. State, 192 S.W.3d 205, 209 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (noting elements of section 36.06 do not require that a person intends to carry out the treat, takes any affirmative steps to carry out the threat, or even issues the threat directly to the public servant). Thus, the evidence is sufficient to support appellant's conviction. We overrule his first and second issues. Motion to Suppress
In his third issue, appellant asserts the trial court abused its discretion by denying his motion to suppress because Officer McGuire arrested him without reasonable suspicion that he committed the offense of reckless driving. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but review de novo the trial court's application of the law to the facts. See Guzman, 955 S.W.2d at 89. We review a motion to suppress in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24. If supported by the record, a trial court's ruling will not be overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.-Houston [14th Dist.] 2007, no pet.). A police officer may stop and detain a motorist if the officer has reasonable suspicion a traffic violation was committed or if the offense is committed in the officer's presence. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). Reckless driving is a traffic violation defined as driving a vehicle "in a willful or wanton disregard for the safety of persons or property." Tex. Transp. Code Ann. § 545.401 (West 1999). "Willful and wanton disregard" means the "deliberate and conscious indifference to the safety of others." Brown v. State, 183 S.W.3d 728, 733 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). When the police conduct a warrantless search, the burden is on the State to show the officer had reasonable suspicion to believe an individual was violating the law. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Reasonable suspicion exists if the officer has specific, articulable facts that when combined with rational inferences from those facts would lead the officer to reasonably conclude a particular person actually is, has been, or soon will be engaged in criminal activity. Id.; see also Terry v. Ohio, 392 U.S. 1, 21 (1968). A reasonable suspicion determination is made by considering the totality of the circumstances. Castro, 227 S.W.3d at 741. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellant challenges the trial court's denial of his motion to suppress for three reasons: (1) Officer McGuire did not see which vehicle made the squealing tires sound; (2) Officer McGuire did not articulate appellant's driving was deliberate and in conscious disregard for other's safety; and (3) the videotape of the stop casts doubt on Officer McGuire's testimony. We conclude appellant's arguments are without merit. Officer McGuire testified at the suppression hearing that he heard a loud squeal, looked over, and saw appellant's white Chevrolet pickup truck driving through the Shell station parking lot at a high rate of speed. When asked on cross-examination how he knew it was appellant's tires that squealed, he said he was confident it was appellant's tires because no other car was moving in the parking lot and he was close enough to look over quickly and see the truck. He also testified appellant drove through the parking lot at a reckless and unsafe speed, and it was unsafe for anyone walking because they could have easily been hit. Further, appellant left the parking lot and pulled into the intersection without stopping. While Officer McGuire did not specifically use the words "deliberate and conscious indifference" for the safety of others, the trial court acted within its discretion in determining this testimony supported appellant's actions of driving recklessly. Finally, the trial court reviewed the videotape and heard Officer McGuire's testimony regarding whether appellant pulled out into the intersection without stopping and whether the video tape showed him driving recklessly. We give almost total deference to the trial court's determination of historical facts that depend on credibility. The trial court was free to believe Officer McGuire's testimony regarding appellant's driving prior to when the dashboard camera started recording. Further, a review of the videotape supports Officer McGuire's testimony that appellant did not stop before pulling out into the intersection. Thus, when reviewed in the light most favorable to the trial court's ruling, the record supports the trial court's finding that Officer McGuire had reasonable suspicion to stop appellant for reckless driving. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress. His third issue is overruled. Article 38.23 Instruction
In his fourth issue, appellant claims the trial court erred by failing to submit an article 38.23 instruction because the evidence raised a fact issue as to whether he committed the offense of reckless driving. The State responds appellant did not provide any conflicting testimony; therefore, he was not entitled to the instruction. In reviewing an appellant's claim of charge error, we must first determine whether error exists. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). If we find error, we must then determine whether the error caused sufficient harm to require reversal. Id. A jury-charge error requires reversal when, after proper objection, the appellant suffers "some harm" to his rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Article 38.23(a) of the code of criminal procedure prohibits the admission of evidence against an accused in a criminal trial if the evidence was obtained in violation of the Texas or United States Constitutions or laws. Tex. Code Crim. Proc. Ann. art. 38.23(a). The statute further provides "in any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." Id. If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded article 38.23 instruction is mandatory. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). "To raise a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question." Id. at 513. A defendant must raise a factual dispute as to the manner in which the evidence was obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); see also Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.-Houston [14th Dist.] 1997, no writ). If the underlying facts are undisputed, no fact issue exists, and an instruction is not required. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). Appellant alleges there was a factual dispute as to the circumstances surrounding the basis for his arrest. He has not specifically identified which evidence was in dispute and created a fact issue; however, based on his argument raised in issue three, we interpret it (as does the State) to mean there was a factual dispute regarding whether appellant squealed his tires before leaving the Shell station. Appellant did not testify, nor did he put on any evidence to dispute Officer McGuire's testimony that he heard squealing tires, quickly turned, and saw appellant's white truck driving through the parking lot. On cross examination, defense counsel called into question whether Officer McGuire knew for sure it was appellant who squealed his tires; however, Officer McGuire's answers did not create a fact issue. See Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971) (holding cross-examination did not raise a fact issue warranting an article 38.23 instruction). Mere insinuations by defense counsel that Officer McGuire may have been wrong in his observations can not raise a fact issue. See, e.g., Garza v. State, 126 S.W.3d 79, 87 (Tex. Crim. App. 2004) (noting that mere insinuations by defense counsel that no inventory slip was made, in light of testimony by officer that an inventory slip existed, did not give rise to fact issue as to existence of inventory slip). Because appellant did not call any witnesses to controvert Officer McGuire's testimony and cross-examination did not raise any fact issues regarding his right to stop appellant for reckless driving, appellant was not entitled to an article 38.23 instruction. His fourth issue is overruled. Ineffective Assistance of Counsel
In his final point, appellant claims he received ineffective assistance of counsel because (1) trial counsel failed to request findings of fact and conclusions of law from the motion to suppress hearing and (2) trial counsel did not know a terroristic threat is not a lesser-included offense of retaliation. The State responds the record is insufficient to support his claim. To prevail on an ineffective assistance of counsel claim, appellant must first show his counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, appellant must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Second, appellant must show the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. This means appellant must show a reasonable probability that "but for his counsel's unprofessional errors, the result of the proceeding would have been different." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Appellate review of defense counsel's representation is highly deferential and presumes counsel's actions fell within the wide range of reasonable assistance. Bone, 77 S.W.3d at 833. Under normal circumstances, the record on direct appeal will not be sufficient to show counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Id. Here, the record is silent as to counsel's possible strategic reasons for not requesting findings of fact and conclusions of law. While appellant argues had counsel made such a request, she would have been in a better position to articulate a more detailed argument for an article 38.23 instruction, we have previously concluded he was not entitled to such an instruction. Therefore, even if counsel acted below an objective standard of professional norms, appellant cannot show he has been prejudiced or harmed by the failure to request findings of fact and conclusions of law. See, e.g., Hardin v. State, 951 S.W.3d 208, 211 (Tex. App.-Houston [14th Dist.] 1997, no writ) (holding counsel was not ineffective for failing to request an article 38.23 instruction when the evidence established he was not entitled to such an instruction and therefore it did not affect the outcome of the case). We are likewise unpersuaded by appellant's argument that counsel was ineffective for stating in a motion for new trial she was ineffective by failing to request an instruction on a the lesser-included offense of terroristic threat. Appellant argues had counsel properly prepared and researched the case, she would have easily discovered that terroristic threat is not a lesser-included offense of retaliation. See Helleson v. State, 5 S.W.3d 393, 396 (Tex. App.-Fort Worth 1999, pet. ref'd). However, he has failed to present any argument or evidence as to how her actions prejudiced his defense or how the outcome would have been different but for her actions. Because terroristic threat is not a lesser-included offense of retaliation, appellant would not have been entitled to such an instruction even if counsel had, mistakenly, requested it. While we may agree that her actions show a failure to thoroughly research the issue, we cannot conclude her mistake rises to the level of ineffective assistance, particularly when under these facts, the mistake would not have changed the outcome of the proceedings. We overrule appellant's fifth issue. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.