NUMBER 13-98-400-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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ALEJANDRO MARTINEZ
, Appellant,v.
THE STATE OF TEXAS, Appellee.
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Before Chief Justice Seerden and Justices Hinojosa and Yañez
Opinion by Justice YañezAppellant Alejandro Martinez was found guilty of aggravated assault on a police officer.(1) Appellant raises seven issues on appeal. We affirm.
The case was tried before a jury. At trial, appellant's family members testified that on Easter Sunday, 1997 appellant and his family went to South Padre Island for the day. Officer Rolando Hernandez, now with the Brownsville Independent School District Police Department, but at the time of the incident deputized as a Cameron County Park Ranger, testified that he arrested appellant's brother for various motor vehicle infractions committed with an all-terrain vehicle in a crowded area of the beach. Officer Bernardo Camacho, Jr. of the Cameron County Parks System stated that Officer Hernandez called for backup in a panic because a very hostile crowd endangered him. According to Camacho, after he came to assist Officer Hernandez, the two officers were not able to leave the scene until Camacho drew his pistol in self-defense.
After taking appellant's brother to the police station, Officer Hernandez testified that, with four other officers, he returned to impound the all-terrain vehicle. All five officers testified that appellant and his family were very hostile, and did not want to give up the vehicle. Each officer testified that appellant yelled vulgar epithets at the police, threatened them, and actively sought to prevent them from taking the vehicle. Officer Camacho testified that when the officers sought to arrest appellant for disorderly conduct, appellant pushed one officer to the side, and ran into the water. The testimony of all witnesses presented a scene that quickly became chaotic and out of the police officers' control.
All witnesses stated that Officer Jane Opal Cox pursued appellant into the water. The testimony was conflicting about whether Officer Cox either pushed or bumped appellant's pregnant sister into the surf. Appellant's sister, eight and one half months pregnant, testified that she was trying to calm down the situation. Most of the defense witnesses testified that Officer Cox was taunting appellant. Most witnesses testified that appellant used verbally abusive language towards Officer Cox while in the water. Officer Cox explained that she and appellant skirmished in the water. Officer Hector Leandro, a game warden with the Texas Department of Parks and Wildlife, testified that appellant grabbed Officer Cox, shoved her, and held her head under the water with both of his hands. All five officers at the scene testified that it took all of them to pacify appellant and place him under arrest. The jury found him guilty of aggravated assault on a police officer for holding Officer Cox's head under the water for extended periods of time.
In his first two issues, appellant questions the legal and factual sufficiency of the evidence used to disprove his claim of self-defense. In a legal sufficiency review, the reviewing court views the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime as alleged in the indictment beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In a factual sufficiency review, a reviewing court sets aside the verdict only if it is so contrary to the weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
There was conflicting testimony as to the conduct of Officer Cox and the other officers at the scene, as well as the actions of other people at the scene. The jury received all of the evidence and made a decision. It had more than sufficient evidence to find the essential elements of aggravated assault against a police officer. Further, the jury had sufficient evidence to disbelieve appellant's affirmative defense of self-defense beyond a reasonable doubt. The jury has the right to resolve conflicts in testimony as it sees fit. See Tex. Code Crim. Proc. Ann. art. 38.4 (Vernon 1979); Clewis, 922 S.W.2d at 133. We will not interfere with the jury's determination because it is neither so contrary to the weight of the evidence as to be clearly wrong and unjust, nor is it irrational that a trier of fact could have found the essential elements of the crime as alleged in the indictment beyond a reasonable doubt. See Clewis, 922 S.W.2d at 129; Williams, 937 S.W.2d at 482 (Tex. Crim. App. 1996). We overrule appellant's first and second issues.
In his third issue for review, appellant's attorney argues that "the trial court should have granted [appellant's] motion to quash requiring the State to specify what his own acts were said to have been." We review the trial court's ruling on a motion to quash under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981). An indictment is sufficient when it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with a degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. See Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989). The State, however, is not required to plead evidentiary facts which are not essential to provide such notice. Clayton v. State, 633 S.W.2d 934, 937 (Tex. App.--Fort Worth 1982, no pet.). Unless a fact is essential for notice to the accused, the indictment need not express the evidence relied upon by the State. Phillips v. State, 597 S.W.2d 929, 935 (Tex. Crim App. 1980).
The indictment reads that appellant:
[did] intentionally, knowingly, and recklessly cause bodily
injury to Jane Cox by holding Jane Cox's head under water,
and the defendant did then and there use and exhibit a
deadly weapon, to-wit: water, that in the manner of its use
or intended use was capable of causing serious bodily injury
or death, during the commission of said assault, and the said
Jane Cox was then and there a public servant to wit: a Park
Ranger in the lawful discharge of an official duty, to wit:
attempting to arrest the defendant, and the said defendant
knew Jane Cox was a public servant[.]
Appellant's act and his manner and means of holding Officer Cox's head under water is clearly laid out in the indictment. It is common sense that she could drown in the water if he held her head beneath the surface long enough. Appellant received all of the facts essential to receive adequate notice of the charges in the indictment. We overrule appellant's third issue.
In his fourth issue, appellant claims that a video taken by a bystander of the very end of the incident was protected by attorney-client privilege. The Court of Criminal Appeals has stated that this privilege has a
pragmatic justification: the need for lawyers "to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." . . . [T]he aspirational purpose of the privilege is the promotion of communication between attorney and client unrestrained by fear that these confidences may later be revealed.
Strong v. State, 773 S.W.2d 543, 547 (Tex. Crim. App. 1989) (citations omitted). On appeal, appellant claims that the tape was a confidential communication. But until making this argument on appeal, appellant used the tape to allege wrongful conduct by the police officers and to bolster his claim of self-defense. The tape shows nothing confidential; it is evidence. Furthermore, the tape, which is extremely short, does nothing to support appellant's claim, and shows little more than a crowd of people as appellant is led into a police car. We overrule appellant's fourth issue.
In his fifth and sixth issues, appellant argues that the trial court erred by excluding two expert witnesses. Appellant argued that the witnesses were experts in the area of the use of excessive force by police officers. Expert testimony in areas that are based primarily upon experience and training, as opposed to the scientific method, may be established as reliable evidence if: 1) the field of expertise involved is a legitimate one; 2) the subject matter of the expert's testimony is within the scope of that field; and 3) the expert's testimony properly relies upon or utilizes the principles involved in that field. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An appellate court reviewing a trial court's ruling on the admissibility of evidence must utilize an abuse-of-discretion standard of review. Id. An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Under this standard, an appellate court should only reverse when the trial court's acts are arbitrary and unreasonable, and without reference to any guiding rules or principles. Id. at 380. The record reflects both arguments in favor of, and against the probative value of the experts' testimony and the experts' qualifications. As such, we see no abuse of discretion, and overrule appellant's fifth and sixth points of error.
In his seventh issue, appellant argues the trial court erred by not considering the factors listed in United States v. Benavides, 596 F.2d 137 (5th Cir. 1979), during the punishment phase of trial when appellant was not present and the trial court decided to continue without him. The Texas Court of Criminal Appeals explained,
[W]e decline to adopt . . . the reasoning in United States v.
Benavides . . . which holds that even if a defendant's
absence is voluntary, a court may not proceed with trial
unless it first considers a "complex" of issues which include
the likelihood that the trial can soon take place with the
defendant present; the difficulty of rescheduling the trial; the
burden on the Government in having to undertake two trials;
and the inconvenience to the jurors. Such analysis is not
required under Art. 33.03, although the trial court, in its
discretion, may take such matters and others under
consideration in deciding whether or not to proceed.(2)
Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984); see also Miller v. State, 672 S.W.2d 88, 91 (Tex. Crim. App. 1985).
The factors listed in Benavides are important common sense considerations that a judge should bear in mind when deciding whether or not to continue in the absence of a defendant. Appellant's attorney presented the excuse that appellant was caring for his sick mother. The State suggested that it appeared he had fled to Mexico. When the Benavides factors are expressly in the record for appellate review, it is relatively simple to determine whether the judge abused his discretion. However, in light of the rulings in Moore and in Miller, we will not remand for re-sentencing. We overrule appellant's seventh issue.
We AFFIRM the judgment of the trial court.
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LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
the 10th day of August, 2000.
1. Tex. Pen. Code Ann. § 22.02 (Vernon 1994).
2. Article 33.03, provides in pertinent part:
In all prosecutions for felonies, the defendant must be
personally present at the trial, . . . provided, however, that
in all cases, when the defendant voluntarily absents
himself after pleading to the indictment or information, or
after the jury has been selected when the trial is before a
jury, the trial may proceed to its conclusion.
Tex. Code Crim. Proc. Ann. art 33.03 (Vernon 1989).