COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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BYRON DOUGLAS JACKSON, ) No. 08-05-00135-CR
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Appellant, ) Appeal from
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v. ) 292nd District Court
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THE STATE OF TEXAS, ) of Dallas County, Texas
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Appellee. ) (TC# F-0426837-NV)
O P I N I O N
Byron Douglas Jackson appeals his conviction of assault on a public servant. A jury found Appellant guilty and the court assessed his punishment at imprisonment for a term of four years. We affirm.
FACTUAL SUMMARY
On July 4, 2004, D.S. Weand, a Garland police officer, was working in an off-duty, part-time position at a Wal-Mart store in Garland. Weand, dressed in his uniform, worked door security at the store entrance. On this particular day, Weand was scheduled to work from 6 p.m. until 6 a.m. and he recalled that the store was extremely busy that evening due to the holiday. At approximately 10:30 p.m., a customer service manager brought Weand a check and an identification card presented by two customers. Weand immediately determined that the identification card was a fake. Consequently, he approached the customers, Juana Page and Appellant, who appeared to be looking for a way out of the store. Page confirmed that she was the person pictured on the card in Weand’s hand. When asked for identification, Appellant handed Weand an identification card but the photograph had been cut off of the card. Weand explained that there was a problem with the check and identification card and he asked both Appellant and Page to accompany him to the security office so that they could talk privately.
Weand had Appellant and Page sit at opposite ends of the table in the security office. Weand called for two additional back-up units in order to keep Page and Appellant separated while he questioned them about the check and identification card. As Weand was running criminal history checks on Appellant and Page, Appellant suddenly bolted for the door. Weand dropped the phone, commanded Appellant not to run, and attempted to grab him. Appellant pushed Weand away and into a wall, but Weand grabbed him again. Appellant is six feet four inches tall and weighed 300 pounds while Weand is five feet eight inches tall and weighs 215 pounds. Appellant swung at Weand and struck him in the head, shoulders, and arms during the course of the struggle. As they fought, the two men lurched out of the security office, through glass doors, and into the store. Appellant wrapped his left arm around Weand’s neck and placed him in a headlock. Although he was in pain, Weand was concerned that Appellant would gain access to his service weapon, so he attempted to free himself from the headlock by punching Appellant in the abdomen. Appellant, who was much taller than Weand, did not release his grip but instead began forcing him down to the ground. At that point, Weand felt Appellant’s feet suddenly go out from under him.
A customer, Christopher Webb, heard the sounds of a fight and saw Appellant holding a uniformed police officer in a headlock and attempting to push him to the floor so that he could get out of the store. Because Appellant had the upper hand and no one else was helping the officer, Webb decided to help. At first, Webb attempted to pull Appellant off of the officer but that was unsuccessful. Webb then grabbed Appellant’s right leg and pulled it out from beneath him, causing him to fall to the ground on his back. Appellant also released his grip on Weand.
While Webb held onto Appellant’s legs, Weand crawled on top of Appellant, who had landed on his back, and moved into a position to strike Appellant’s face. At that point, Appellant gave up and asked Weand not to hit him, but he remained uncooperative as Weand attempted to handcuff him. Weand looked in the security office and saw that Page had fled. Other officers arrested her near a restaurant about 140 yards from Wal-Mart. As a result of his struggle with Appellant, Weand suffered a lump on his head, abrasions to his lip, wrist, elbow, and knees, and a bloody nose.
Page testified at trial that Appellant went with her and another woman to Wal-Mart, but he did not know anything about her attempt to pass a forged check. Appellant was not present at the register and approached her only after the Wal-Mart employee declined her check. Weand then approached them about the check and asked them to follow him to the security office. While Weand was on the phone, both she and Appellant attempted to leave the security office. She claimed she had not seen the struggle between Appellant and Weand because she ran out of the store.
Appellant testified that he did not go into the store at the same time as Page. At some point, Page walked over to Appellant and told him that she needed to find an ATM because her check had been declined. Moments later, Weand approached them and asked Page about the identification card and check she had presented at the register. Appellant handed Weand a torn identification card and a bus card. Appellant and Page went with Weand to the security office, but he decided to leave when Weand began checking their criminal history because he had outstanding warrants for unpaid traffic tickets. Appellant admitted that he forced his way out of the security office but he denied placing Weand in a headlock or attempting to push him to the ground. He also denied trying to strike the officer. He believed Weand sustained the bloody nose when they both fell after someone pulled Appellant’s leg out from under him. Appellant admitted that he had convictions for theft by check, terroristic threat, burglary of a vehicle, arson, and multiple convictions for unauthorized use of a motor vehicle.
The jury rejected Appellant’s defense and convicted him of assaulting Officer Weand by placing him in a headlock as alleged in the indictment. Appellant timely filed a notice of appeal.
SUFFICIENCY OF THE EVIDENCE
In Issues One and Two, Appellant contends that the evidence is legally and factually insufficient to prove that Officer Weand suffered bodily injury as a direct result of being placed in a headlock.
Standards of Review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, 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. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.
In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), the Court of Criminal Appeals clarified the factual sufficiency standard and linked the appellate standard of review to the beyond a reasonable doubt burden of proof. There is only one question to be answered in a factual sufficiency review:
Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In performing this review, we are to give due deference to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481.
Bodily Injury
A person commits assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a public servant while the public servant was lawfully discharging an official duty. Tex.Penal Code Ann. § 22.01(a)(1), (b)(1)(Vernon Supp. 2005). The Penal Code defines “bodily injury” as physical pain, illness, or any impairment of physical condition. Tex.Penal Code Ann. § 1.07(a)(8)(Vernon Supp. 2005). Bodily injury encompasses even relatively minor physical contact, but it must constitute more than mere offensive touching. Lane v. State, 763 S.W.2d 785, 786-87 (Tex.Crim.App. 1989). Bodily injury can be proven by the victim’s testimony that he suffered physical pain. Lane, 763 S.W.2d at 786-87. Additionally, a factfinder may infer that a victim suffered pain from the existence of a cut, bruise, or scrape on the victim’s body. Arzaga v. State, 86 S.W.3d 767, 778 (Tex.App.--El Paso 2002, no pet.).
The indictment alleged, and the jury found, that Appellant caused Officer Weand bodily injury by placing him in a headlock Weand testified that he felt physical pain when Appellant had him in the headlock. This evidence alone is legally sufficient to prove the bodily injury element. See Lane, 763 S.W.2d at 786-87. Additionally, the jury had before it evidence that Appellant had such a firm grip on Weand’s head that he would not release him even though Weand struck him repeatedly in the lower abdomen and Webb attempted to pull him off. As a result of the struggle, Weand’s contact lens was forced out of his right eye and he suffered a bloody nose and cut lip. Photographs taken after the assault depict the injuries to Weand’s face. The jury could have inferred from this evidence that Weand suffered physical pain as a result of his struggle with Appellant. See Arzaga, 86 S.W.3d at 778. Issue One is overruled.
We have also considered the evidence in a neutral light. Appellant argues that the evidence is factually insufficient because Weand, in essence, glossed over the issue of physical pain during his testimony. When testifying about being in the headlock, Weand said that it caused him physical pain but because he feared that Appellant would get his service weapon, he continued to fight back. Appellant reasons that Weand did not “truly” suffer physical pain since his testimony focused more on his efforts to free himself from Appellant’s grip. While Weand did not focus excessively on the pain he suffered, he plainly testified that the headlock caused him physical pain. Weand’s testimony and the photographs depicting injuries to his face certainly described something more than mere offensive contact, and therefore, the evidence satisfied the broad definition of bodily injury beyond a reasonable doubt. We conclude that the evidence is factually sufficient to prove this element. Issue Two is overruled.
INEFFECTIVE ASSISTANCE
In Issue Three, Appellant complains that he was denied the effective assistance of counsel at trial because his attorney failed to request an instruction on the lesser included offense of resisting arrest. The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel’s performance was deficient, to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the second prong, the defendant must establish that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771. Failure to make the required showing of deficient performance defeats the ineffectiveness claim. Jackson, 877 S.W.2d at 771.
An appellant challenging trial counsel’s performance faces a difficult burden and “a substantial risk of failure.” See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In the absence of a record demonstrating the basis for trial counsel’s action or inaction, a defendant will rarely be able to rebut the presumption that counsel’s action or inaction constituted reasonable trial strategy. See Thompson, 9 S.W.3d at 814.
Appellant did not raise the ineffective assistance of counsel claim in his motion for new trial. Because the record is silent regarding counsel’s trial strategy, we must presume that he had a plausible reason for not requesting an instruction on the lesser-included offense of resisting arrest and that he acted within the range of reasonable professional assistance. Several courts, including this one, have held that the failure to request an instruction on a lesser-included offense can be a valid and reasonable trial strategy. See e.g., Williams v. State, No. 08-02-00310-CR, 2004 WL 309265 at *6 (Tex.App.--El Paso, Feb. 19, 2004, pet. ref’d); Wood v. State, 4 S.W.3d 85, 87 (Tex.App.--Fort Worth 1999, pet. ref’d); Davis v. State, 930 S.W.2d 765, 768 (Tex.App.--Houston [1st Dist.] 1996, pet. ref’d); Lynn v. State, 860 S.W.2d 599, 605 (Tex.App.--Corpus Christi 1993, pet. ref’d). The “all or nothing” strategy of forcing the jury to choose between the greater offense and acquittal without the alternative of a lesser-included offense, is risky but sometimes successful. See Lynn, 860 S.W.2d at 603. Because Appellant has failed to rebut the strong presumption that counsel’s decision not to request the instruction was sound trial strategy, he has not carried his burden under Strickland. Issue Three is overruled.
SUA SPONTE INSTRUCTION
In his final issue, Appellant contends he was denied his right to a fair trial because the trial court did not sua sponte instruct the jury on the lesser-included offense of resisting arrest. Appellant acknowledges that he did not request the instruction or object to its absence from the charge, but he contends that the trial court had a duty to instruct the jury even absent a request.
In order to preserve his complaint regarding the exclusion of the lesser-included offense instruction from the charge, Appellant must have requested the jury instruction or objected to its omission. See Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994); Thomas v. State, 701 S.W.2d 653, 656 (Tex.Crim.App. 1985). A trial court does not have a duty to sua sponte instruct the jury on a defensive issue. See Posey v. State, 966 S.W.2d 57, 61-62 (Tex.Crim.App. 1998). Several courts have held that a lesser-included offense instruction is a defensive issue under Posey and have refused to address error in the exclusion of the instruction unless the appellant preserved error. See e.g., Darnes v. State, 118 S.W.3d 916, 921 (Tex.App.--Amarillo 2003, pet. ref’d); Paz v. State, 44 S.W.3d 98, 100 (Tex.App.--Houston [14th Dist.] 2001, pet. dism’d untimely filed); Hernandez v. State, 10 S.W.3d 812, 821 (Tex.App.--Beaumont 2000, pet. ref’d). We agree and conclude that Appellant failed to preserve error. We overrule Issue Four and affirm the judgment of the trial court.
June 22, 2006
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)