Opinion
Nos. 05-02-01533-CR, 05-02-01534-CR
Opinion Filed September 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01209-IR and F02-48340-SR. AFFIRMED
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Leonard Eugene Jones on two charges of aggravated assault of a public servant and assessed prison terms of forty years and five years. In five points of error, appellant complains of the legal sufficiency of the evidence to convict him, charge error, and improper jury argument. We overrule all points of error and affirm the trial court's judgments. Dallas police officers Jeffrey Beezley and Leroy Pena were on patrol when they found a Cadillac — with its doors open, lights on, wheels spinning, and engine running — in a ditch. The officers, who were in uniform and riding in a marked patrol vehicle, pulled in behind the Cadillac to investigate. No one was in or near the car. The officers were about to call a towing company when they saw a man, identified as appellant, running full speed toward them from between nearby buildings. Beezley, who was in the driver's seat of the squad car, asked if appellant needed help, and appellant reached inside the window and began punching Beezley in the face. Beezley tried to get out of the car, but appellant was standing against the door. Beezley kicked open the door as appellant continued swinging at and punching him. Pena got out to help his partner and began struggling with appellant. During the struggle, appellant grabbed Pena's service weapon and shot Pena in the chest. Pena was wearing a bulletproof vest, but appellant then raised the gun in the direction of Pena's head. Beezley grabbed appellant's arm and shoved it in the air as a second shot was fired. Beezley and appellant fell to the ground, and Beezley was able to shove the barrel of the pistol into the dirt. Pena, who recovered quickly from the blow to the chest, went to assist Beezley, and the three struggled for control of the gun. Ultimately, Pena was able to wrest the gun from appellant's hand. Beezley continued to struggle with appellant, who bit his arm and fingers. Beezley tried to subdue appellant with OC spray, which is similar to pepper spray. Appellant, unaffected by the spray, then deliberately sprayed the substance into his mouth and bit Beezley's fingers. Beezley and appellant continued to struggle until two other officers arrived to help handcuff appellant. At the time of the attack, appellant was under the influence of PCP, a hallucinogenic drug.
Sufficiency of the Evidence
In his first point of error, appellant argues the evidence is legally insufficient to show he knew Beezley and Pena were public servants. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). In this review, the trier of fact is the exclusive judge of the weight and credibility given to witness testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The charges in these cases authorized the jury to convict appellant if it found beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Beezley and Pena by various means, that appellant knew at the time of the offense Beezley and Pena were Dallas police officers engaged in the discharge of an official duty, and appellant used or exhibited a deadly weapon during commission of the assaults. See Tex. Pen. Code Ann. §§ 22.01(a)(1), (b)(1), 22.02(a)(2), (b)(2) (Vernon 2003). The evidence showed both officers were in uniform and in a marked police vehicle investigating an abandoned car when appellant attacked them. Appellant argues this evidence is insufficient because (1) neither Beezley nor Pena "announced" he was a police officer and (2) appellant was under the effects of PCP and was "out of his mind." With respect to his first argument, appellant cites Lavern v. State, 48 S.W.3d 356 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd), to support his position that the officers needed to announce their status. Lavern is inapposite. In Lavern, the officer was not wearing a uniform. Lavern, 48 S.W.3d at 359. Where officers are in uniform, the law is clear that the jury may presume appellant knew Beezley and Pena were public servants. See Tex. Pen. Code Ann. § 22.02(c) (Vernon 2003). With respect to his second argument, we reject any suggestion that appellant rebutted this presumption by showing he was "out of his mind" on drugs. Voluntary intoxication cannot be used as a defense to an offense. See Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003). The jury was so instructed. Having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant knew Beezley and Pena were police officers. We overrule the first point of error. In his fifth point of error, appellant contends the evidence is legally insufficient to show that he used or exhibited a firearm during the assault on Beezley. The indictment alleged appellant committed the offense by "striking [Beezley] with defendant's hand or by biting [Beezley] with defendant's mouth and said defendant did use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault. . . ." Appellant asserts the State did not prove he "possessed, utilized, or made use of a firearm" when he bit Beezley or struck him. Generally, in relation to a deadly weapon, the term "use" means to utilize, employ or apply the deadly weapon to achieve its purpose. Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App. 1989); Wade v. State, 951 S.W.2d 886, 889 (Tex.App.-Waco 1997, pet. ref'd). The use of a deadly weapon extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated offense. Patterson, 769 S.W.2d at 941; Wade, 951 S.W.2d at 889. Here, appellant began his assault on Beezley as Beezley sat in the squad car. When Pena went to assist Beezley, appellant grabbed Pena's gun and shot Pena in the chest. Appellant and Beezley wrestled, and Beezley was able to shove the barrel of the gun into the ground. Ultimately, Pena was able to wrest control of the gun from appellant. Beezley continued to struggle with appellant, and appellant bit him. Viewing this evidence in a light most favorable to the verdict, we conclude a rational jury could find beyond a reasonable doubt that appellant used a deadly weapon during the ongoing assault of Beezley. In reaching this conclusion, we reject appellant's attempt to isolate the instances when he either struck Beezley or bit him from the struggle that ensued in the ditch once appellant gained control of Pena's gun. We believe appellant used the gun to facilitate both assaults in this case. We overrule the fifth point of error.Charge Error
In his second point of error, appellant complains the trial court reversibly erred in failing to instruct the jury on section 2.05 of the penal code after giving a section 22.02(c) instruction on a presumed fact. In accordance with section 22.02(c), the trial court instructed the jury:A person is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer.
You are instructed that a police officer is a peace officer.See Tex. Pen. Code Ann. § 22.02(c) (Vernon 2003). If the presumed fact is submitted to the jury, as it was here, the trial court must likewise instruct the jury in accordance with section 2.05. See Tex. Pen. Code Ann. § 2.05(2) (Vernon 2003). Section 2.05 provides:
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.Id. The trial court's failure to instruct the jury under section 2.05 was error. Because appellant did not object to the charge as given, reversal is required only if the harm is so egregious that appellant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) (op. on reh'g). In making this determination, we examine the entire charge, the state of the evidence, including any contested issues, arguments of counsel, and other relevant information. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App. 1995). First, the undisputed evidence showed that Officers Beezley and Pena were in uniform and in a marked police vehicle when appellant attacked them. Both Beezley and Pena were dressed in uniform while testifying at trial, and a photograph of their marked squad car was entered into evidence. The jury had the opportunity to view and assess first hand the distinctiveness of the officers' attire that night as well as their marked police vehicle. Second, the application paragraph of the charge instructed the jury that it had to find beyond a reasonable doubt, that both Pena and Beezley were public servants and appellant knew they were public servants before it could convict him on the charges. Finally, while the State mentioned the presumption in closing argument, it did not argue that the jury had no choice under the presumption but to make a finding that appellant knew his victims were police officers. In fact, appellant's counsel expressly argued that "[a] presumption, folks, means that you're allowed to find it, it doesn't mean that you have to find it." Under the circumstances presented, we cannot conclude appellant was denied a fair and impartial trial by the omission of the section 2.05 instruction. See Rudd v. State, 921 S.W.2d 370, 373 (Tex.App.-Texarkana 1996, pet. ref'd) (concluding omission of section 2.05 instruction was error but did not cause egregious harm because the great weight of evidence showed officers were physically close to defendant, in uniform, and arrived in marked police car). We overrule the second point of error. In his fourth point of error, appellant argues the trial court erred in refusing his request to instruct the jury on the lesser-included offense of aggravated assault. According to appellant, there was some evidence that he did not know either Beezley or Pena was a police officer. In particular, he argues that (1) there was no testimony that either identified himself as a police officer and (2) he was "out of his mind" on drugs when he launched the assault. A defendant is entitled to a lesser-included offense instruction if (1) the lesser-included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury to rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Westbrook v. State, 29 S.W.2d 103, 113 (Tex.Crim.App. 2000). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Id. We focus on the second prong in this case. First, while there was no testimony that either officer verbally identified himself, the undisputed evidence established that both officers were dressed in uniform and in a marked police car when appellant attacked them. We cannot conclude the lack of verbal identification raises even an inference that appellant did not know Beezley and Pena were police officers. Second, the only evidence relied on by appellant to show that he did not know Beezley and Pena were police officers was the fact he was on PCP at the time of the attack. As previously stated, voluntary intoxication is not a defense to the commission of an offense. See Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003). Because appellant's voluntary intoxication is no defense to his crime, the lesser-included offense requested was not a rational alternative. We overrule the fourth point of error.