Keith White v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00087-CR

KEITH WHITE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

In six points, Appellant Keith White appeals his conviction for assault on a

public servant. We affirm.

1
See Tex. R. App. P. 47.4.
 II. Procedural Background

A grand jury indicted White for assaulting correctional officer Jesse Sixtos

by striking him with a piece of metal while Officer Sixtos was supervising

inmates; the indictment listed two prior felony theft convictions as enhancement

allegations. At trial, a jury found White guilty of assault on a public servant and

then, proceeding to special issue #1, found that White had used or exhibited a

deadly weapon during the commission of the offense. At the conclusion of the

punishment phase of trial, the jury found both enhancement paragraphs true and

assessed forty years’ confinement. The trial court entered judgment accordingly,

and this appeal followed.

III. Competency

In his first point, White complains that the trial court abused its discretion

by failing to hold a competency hearing.

A. Standard of Review and Applicable Law

Under code of criminal procedure article 46B.004, “[i]f evidence suggesting

the defendant may be incompetent to stand trial comes to the attention of the

court, the court on its own motion shall suggest that the defendant may be

incompetent to stand trial,” and then determine by informal inquiry whether there

is some evidence from any source that would support a finding that the

defendant may be incompetent to stand trial. Tex. Code Crim. Proc. Ann. art.

46B.004(b)–(c) (West 2006 & Supp. 2012). A suggestion of incompetency is the

threshold requirement for an informal inquiry and may consist solely of a

2
representation from any credible source that the defendant may be incompetent;

the trial court is no longer required to have a bona fide doubt about the

defendant’s competency. Id. art. 46B.004(c-1) (West Supp. 2012). Evidence

suggesting the need for an informal inquiry may be based on observations made

in relation to one or more of the factors described in article 46B.024 or on any

other indication that the defendant is incompetent within the meaning of article

46B.003. Id.

Although a defendant is presumed competent to stand trial, under article

46B.003, he is incompetent to stand trial if he does not have (1) sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding or (2) a rational as well as factual understanding of the

proceedings against him. Id. art. 46B.003 (West 2006). Article 46B.024 sets out

the following as factors that may suggest the need for an informal inquiry based

on observations of the defendant: the defendant’s capacity to rationally

understand the charges against him and the potential consequences of the

pending criminal proceedings; to disclose to counsel pertinent facts, events, and

states of mind; to engage in a reasoned choice of legal strategies and options; to

understand the adversarial nature of criminal proceedings; to exhibit appropriate

courtroom behavior; and to testify. Id. art. 46B.024(1)(A)–(F) (West 2006 &

Supp. 2012). Other factors, as supported by current indications and his personal

history, are whether the defendant has a mental illness or is a person with mental

retardation; the degree of impairment resulting from this condition or conditions

3
and the specific impact of them on his capacity to engage with counsel in a

reasonable and rational manner; whether his identified condition has lasted or is

expected to last continuously for at least one year; and if the defendant is taking

psychoactive or other medication, whether it is necessary to maintain his

competency and the effect, if any, of the medication on his appearance,

demeanor, or ability to participate in the proceedings. Id. art. 46B.024(2)–(5)

(West 2006 & Supp. 2012).

We review a trial court’s decision to conduct an informal inquiry for an

abuse of discretion. Luna v. State, 268 S.W.3d 594, 600 (Tex. Crim. App. 2008),

cert. denied, 558 U.S. 833 (2009). An informal inquiry may be satisfied when the

trial court poses simple, short questions to the defendant or defense counsel

regarding the defendant’s competency—“exhaustive inquisitions are not

required.” Coyt-Sowells v. State, No. 14-11-00986-CR, 2013 WL 1499579, at *1

(Tex. App.—Houston [14th Dist.] Apr. 11, 2013, no pet.) (mem. op., not

designated for publication) (citing Luna, 268 S.W.3d at 599–600).

B. Pretrial, Trial, and Post Trial Proceedings

First, we note that after White’s third appointed counsel 2 filed a motion for

examination of competency, the following conversation occurred at White’s

October 6, 2011 Faretta hearing:

2
On June 2, 2011, the trial court appointed Thomas Allensworth to
represent White.

4
 MR. HERNANDEZ [Prosecutor]: Since there has been a
Motion For Competency Exam filed, I think any discussion of
replacing his attorney or allowing him to plead on his own is
premature at this point.

THE COURT: Because the lawyer filed such a motion who
hasn’t seen the man until yesterday?

MR. HERNANDEZ: Well, I’m just saying.

THE COURT: I mean, I’m supposed to have some belief that
there’s some basis for an examination. You know, if he’s only seen
him once, I don’t know how he’s come to the conclusion he needs to
be examined.

MR. ALLENSWORTH: Judge, I saw him during the initial
pretrial and spoke to him for a good 30 to 40 minutes.

THE COURT: Well, did he talk to you like he knew where he
was?

MR. ALLENSWORTH: Yes.

THE COURT: Did he answer your questions about what was
going on in the courtroom?

MR. ALLENSWORTH: I don’t have any doubt that he’s
competent, Judge.

THE COURT: So why did you file this motion?

MR. ALLENSWORTH: Because I thought it was a cautionary
measure, Judge, because there may be an issue of competency
raised later on. That’s why.

....

THE COURT: Do you think you understand what’s going on?

THE DEFENDANT: Yes.

THE COURT: Do you think you’re incompetent to stand trial?

5
 THE DEFENDANT: I understand this attorney is incompetent
to represent me.

THE COURT: I’m not asking you about the attorney. I’m
saying, do you think you’re incompetent?

THE DEFENDANT: Yes, sir.

THE COURT: You think you’re incompetent?

THE DEFENDANT: Competent.

THE COURT: You think you’re competent to stand trial?

THE DEFENDANT: Yes, sir.

THE COURT: You think you understand what’s going on in
here?

THE DEFENDANT: Yes, sir.

....

THE COURT: All right. What -- what is your position on this
motion for a competency examination?

MR. HERNANDEZ: My position is that since the defense
counsel has stated that he believes he is competent and since there
is no evidence contained within the motion, that it should be denied
by the Court.

THE COURT: And you’ve told me that you think you’re
competent, right?

THE DEFENDANT: (Moving head up and down.)

THE COURT: You have to speak out loud --

THE DEFENDANT: Yes, sir.

The trial court denied the motion.

6
 White contends that information that came to light during the course of

both phases of trial should have prompted the trial court to conduct another

informal inquiry into his competence and appoint an expert to examine him.

White points to his trial counsel’s time sheets as evidence of “a completely

dysfunctional level of communication between attorney and client,” and he claims

that testimony by witnesses in the punishment phase brought to light “a

disturbing and consistent pattern of behavior of bizarre acts.”

1. White’s Behavior—Pretrial

At the July 14, 2011 Faretta hearing based on White’s motion involving his

second appointed counsel, White indicated that he wanted to dismiss the Faretta

hearing. At the hearing, White also asked about a motion to quash the

indictment that he had filed pro se and admitted that he had had an attorney

when he filed it but that they were “on bad terms.” Allensworth conveyed on the

record the State’s plea offer of eight years, and White indicated that he

understood when Allensworth explained that based on the charge, “if things go

bad for you, the minimum punishment will be 25 years and the potential exposure

would be up to life in prison.”

White subsequently filed a pro se motion to withdraw Allensworth. Before

the October 6, 2011 Faretta hearing, Allensworth filed the motion for examination

regarding incompetency, which we have already discussed above. At the

hearing, White complained that he had written to Allensworth five times without a

response, that he had had only one visit with him, and that he had only seen him

7
three times in four months. The trial court pointed out to White that counsel was

appointed to be his lawyer, not his babysitter. After denying the motion for a

competency examination, the trial court reset the Faretta hearing.

White filed a pro se motion for habeas corpus relief on November 16,

2011. In his motion, he complained, among other things, that the indictment was

invalid, that the special prosecutor was “posing as a criminal district attorney,”

and that he was receiving ineffective assistance of counsel.

At the January 19, 2012 Faretta hearing, White complained that

Allensworth had not been to see him in three months and that no preparations

had been made on his case. Allensworth informed the trial court that he had

been “dealing with [White’s] various things for the last two months” and

explained, “I could literally work 24 hours a day answering one or another of his

questions which I know the answer to that are not necessarily helpful to the

presentation of his defense.” Allensworth stated that he was prepared to

represent White and agreed that he had not seen White in three months, stating,

“If he wants me to spend some time with him, that’s fine by me, but I think I can

do more for my client sitting in front of a computer or reading the file than talking

with him.”

White complained that “[e]verybody else [is] getting visits except me,” but

he ultimately dismissed his Faretta request again 3 and again acknowledged that

3
As referred to by White in his brief, Allensworth’s applications for
compensation were filed in the record. On January 30, 2012, he filed a log of his
8
he was aware that the State had offered him a plea bargain for eight years and

that if he went to trial and lost, it would be twenty-five years to life with a deadly

weapon finding.

At a pretrial hearing on February 9, 2012, White agreed that he had

decided to continue being represented by counsel. White also informed the trial

court that he wanted to object to the State requesting a deadly weapon finding,

and Allensworth brought to the trial court’s attention that White had told him that

he wanted to be tried in prison clothing. White informed the trial court that he did

not think it would make a difference because, as the incident had occurred in

prison, the jury would already know that he was incarcerated. After the trial court

pointed out to White that the jury had no way of knowing if he was still a prisoner

unless he appeared in jail clothing, White decided to wear civilian clothing. Then

activities from June 3, 2011 to January 19, 2012. The log reflected that White
had sent Allensworth numerous missives over the course of the case. It also
reflected that,

Like most convicts, [White] knows enough law to be a pest, and not
enough[] to know that 99% of what he is talking about is not only
contrary to the law, but contrary to the rules of any civilized society,
be that place Terre Haute or Tehran. If you had the Harvard Law
Review working shifts they could not stay up with his demands, nor, I
suspect, figure out what the demands were in the first place.

....

Attend[ed] Faretta hearing which, as I anticipated, primarily dealt
with my client’s anger at my reluctance to working 169 hours weeks
[sic] under the gifted courtroom leadership of Keith White.
9
White again complained that the special prosecutor was “posing” as the district

attorney.

At the final pretrial hearing on February 27, 2012, White informed the trial

court that he planned to testify and received his admonishments. The following

dialogue occurred between White and Allensworth regarding the prosecutor’s

ability to go into White’s prior convictions during the guilt-innocence phase of trial

if White testified:

A. Okay. I don’t understand that if I’m on the stand, he’s
bringing up my past offenses, I thought he cannot bring them up until
punishment.

Q. Well, you thought wrong, which is what I told you on
Friday. If you testify, and you have a criminal history, then the
prosecutor is allowed to go into those criminal convictions.

A. All right. That’s fine.

Q. Okay.

A. We’re still going.

Q. Okay.

A. I’m still testifying.

Q. Okay.

....

Q. . . . Now, as you can see, these are some of the offenses
which [the prosecutor is] going to charge you with and I’ve -- by
impeachment of conviction of crimes and/or bad acts. Now, not all
of these I believe are going to come in because I’m not exactly sure
that the disrespect to jail staff and indecent exposure has yet
resulted in a conviction anymore than I can feel that lying to
detention staff, but the substantive offenses, your previous felony

10
 convictions, specifically, the one for burglary, specifically the one
from stealing a car in Houston will come in I guarantee it. Is it . . .
still your desire [to] testify?

A. Yes.

The trial court then observed that White appeared to understand that he did not

have to testify and that if he chose to do so, then the law permitted within certain

limitations questioning about prior felonies. White than asked,

I wouldn’t -- don’t understand. Why would I not testify? It would be
like something I’m hiding. I want to get up there and tell the truth --
. . . -- how it’s supposed to be told. Now, I’m going to tell -- I’m not
going to dispute him on my past offenses. I did that. And if he look
at the record, it’ll say that I proved guilty. But I’m not going to prove
guilty on this, something that I did not do and I’m willing to explain on
the stand and prevent -- present the facts.

2. White’s Behavior During Trial

After voir dire on February 27, 2012, the trial court declared a mistrial

because Allensworth had nodded off. White argued to the trial court that he

wanted to keep that jury because they had been observant and were concerned

about his counsel having fallen asleep.

The following day, after a new jury was selected and before trial began, at

White’s insistence, his counsel raised two motions—the first pertaining to the

prosecutor’s ability to prosecute the case and the second pertaining to White’s

claim that there was never a probable cause affidavit submitted to the grand jury.

The State offered five years and a waiver of the deadly weapon finding as a final

plea bargain to White. White refused, stating, “We’re going to trial. I want to go

to trial. I don’t want no plea deals. We’re going to trial.”

11
 Before White testified, the prosecutor made a motion in limine to prevent

White from mentioning any of the previous plea bargain offers. White’s counsel

asked him:

Do -- did you understand what they just said? The one thing that
you’re not allowed to speak about are the various offers that the
State has given you in this case, not the five-year offer they gave
you earlier, not the eight-year offer. You cannot discuss any plea
negotiations or say something to the effect, well, the reason I’m here
is because I turned down those offers because I’ve got my story to
tell. Do you got that?

White said that he understood, and he did not go into the plea offers during his

testimony.

The State’s theory of the case was that White had assaulted Officer Sixtos

by poking him in the face with a homemade spear made from paper and a staple

when the officer approached his cell. White’s theory of the case was that Officer

Sixtos was lying and had a five-man team strip search him and leave him naked

in another cell as retaliation for a grievance that he had written against Officer

Sixtos two months before. 4 White acknowledged during his testimony that he

was a “writ writer,” that he had lost his good time credit during his twenty-year

sentence for not following the rules, and that he was in administrative

segregation—also known as solitary confinement—when the incident occurred.

4
During his testimony, White gave a coherent, detailed report of the events
as he saw them, including the officers’ search of his cell and body. He testified
that he had read the procedure plan for such searches, and he insisted the
officers did not follow the correct procedure because “any time an officer gets
stabbed or something, they’re supposed to come in the cell and tell me to
relinquish a weapon” before beginning a search.

12
 White also testified that he obtained his GED and completed some college

vocational training during the first two years of his twenty-year sentence. During

his time in prison, he had also educated himself on the law, fought for inmates’

rights, and wrote grievances about officers, including Officer Sixtos, “for doing

unprofessional things.” White claimed that he had had officers’ ranks taken from

them or caused them to lose their jobs and said that he considered this an

accomplishment.

During the State’s closing argument, White interrupted, complaining that

there had been a videotape of the officers abusing him and that everyone had

declined to call his witnesses. After the trial court instructed him that if he did not

remain quiet, he would be removed from the courtroom, White made no further

interruptions.

The jury found White guilty, and before the punishment trial began, Wichita

County Sheriff’s Deputy Ed Daniels informed the trial court that White had

refused to return voluntarily and that White had taken off his civilian clothes,

thrown them on the floor, and said that he was not going back to court. Deputy

Daniels also stated that White had been screaming as loud as he could and was

highly agitated. Sergeant Monte Deford agreed that White had used some filthy

language and did not appear to want to participate in the punishment trial. The

trial court entered a “not true” plea to the enhancements on White’s behalf.

A series of Wichita County jail employees testified about White’s behavior:

13
• On July 23, 2011, White was “out of control,” and “screaming, cursing,
verbally berating” a female officer for around five minutes while officers tried
to remove him; White tried to incite other prisoners to riot when he realized
that the officers were going to remove him from his cell.

• Around 6:18 a.m. on August 18, 2011, White waited until a female guard
brought him his coffee and then masturbated in front of her; he cursed at her
when she told him his behavior was inappropriate and that he would be
written up.

• Around 2:30 a.m. on September 15, 2011, White stood on a property box in
the window of his solitary cell so a female guard could not miss him
masturbating. White cursed at her when she told him that his behavior was
inappropriate and that he would be written up.

• On October 16, 2011, White destroyed some jail property in violation of the
oral and written directives that he had been given when he came into custody.

• At around 2:15 a.m. on December 26, 2011, a detention officer testified that
White was upset over a cell search and kept hitting the emergency intercom
button to tell the control room operator to “suck his dick.” He stated that this
type of behavior was not unusual for White, who had flooded his cell two days
later because he did not like the cell he had been moved into, and that after
White started kicking the cell door, the detention officers had to restrain White
with leg restraints to keep him from hurting himself and destroying the cell.

• On January 1, 2012, White ripped off the blood pressure cuff that a nurse was
using to take his blood pressure, threw it on the ground, and started stomping
on it. When he threw the pieces of the destroyed cuff back through the slot in
the cell door, White yelled, “I told you MF’ers, I was going do this every MF
time.”

• On January 7, 2012, White masturbated in the window in front of another
female guard. When the guard’s supervisor talked to White, White replied
that it was a free country and he could masturbate anywhere he wanted.

• On January 29, 2012, White stood on a property box and masturbated in front
of a female guard. That guard testified that White could have masturbated
without being seen but chose to do it where the guards would have to see
him.

14
 One of the jail employees agreed that White could be a “mouthy, resistant

individual” and that he appeared to take a perverse pleasure in making things

difficult. White had also threatened him and others. Another said that White had

mentioned a vast, dark conspiracy against him to keep him in jail for a long time

and described White as a “very mean individual.”

Lieutenant Daryl Bonnin, the assistant jail administrator, testified that he

had investigated White’s complaints against officers and that it was “[v]ery, very

difficult to find anything even remotely accurate to what he -- he writes in his

complaints.” During cross-examination, Lieutenant Bonnin indicated that White

would not be treated for mental illness unless White reported that he thought he

had one and wanted treatment. He agreed that White was always convinced that

he was in the right and harbored certain conspiracy theories. During redirect, he

agreed that White was a “jailhouse lawyer” and liked to accuse officers of

misconduct. During recross-examination, he stated that White did not think he

caused problems, that White thought he was just responding to the instigation of

problems by the jail staff, and that

a lot of the problems we have with him are repetitive. They’re --
they’re the same things. You know, we pass the meals every time --
at the same time every day. We pass out laundry at the same time
every day. He knows the rules. He knows the processes. He
knows the procedures, but he doesn’t like doing things the way that
we do them in the jail. He wants to do them either on his own time
or his own schedule or something like that. And that’s generally
what causes the problems. [Emphasis added.]

15
 Deputy Daniels testified that after the guilt-innocence phase, White had

been taken back to the jail for lunch and informed the guards that he was not

going back to court. He repeated for the jury that White had taken off his civilian

clothes and thrown them on the floor, adding that White still had his green jail

uniform on underneath. He stated that White had refused to talk to Allensworth

about going back to court for the punishment phase.

3. White’s Behavior Post Trial

After the jury was discharged, White was brought back into the courtroom

for pronouncement of his sentence, where he cursed at the trial judge and cursed

about Allensworth. The trial court pronounced judgment, informed White of his

right of appeal, and told the bailiff to remove him.

Allensworth filed a motion for new trial for White, complaining, among other

things, that the jury’s punishment verdict was excessive and grossly

disproportionate to the offense. White’s appellate counsel filed a first amended

motion for new trial, incorporating the previous motion by reference, arguing that

the punishment sentence was grossly excessive and disproportionate and asking

the trial court to set aside the deadly weapon finding. The trial court denied the

motion.

White then filed a pro se motion to withdraw both motions, arguing that he

had not consented to their filing, particularly with regard to his punishment.

White stated, “Defendant never complained about the sentence he received, but

16
about the evidence that would [have] exonerated [him],” which he complained his

trial counsel had suppressed.

C. Analysis

We first note that while White’s refusal to return to the courtroom after the

jury convicted him may have been disruptive, this behavior was not probative of

incompetency. See Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999)

(rejecting claim that disruptive courtroom behavior was probative of

incompetence because otherwise “one could effectively avoid criminal justice

through immature behavior”), cert. denied, 530 U.S. 1216 (2000).

Further, although White argues that Allensworth’s timesheets illustrate

White’s inability to communicate with him, as set out above, the record reflects

that White was able to understand the proceedings and to converse with his

attorney. See Ford v. State, No. 05-04-01819-CR, 2006 WL 710946, at *2–3

(Tex. App.—Dallas Mar. 22, 2006, pet. ref’d) (not designated for publication)

(observing that defendant was able to communicate with his attorney even

though he wanted his attorney declared ineffective and “disagreed with and

disregarded his attorney’s advice at times”); see also Guerrero v. State, 271

S.W.3d 309, 312–16 (Tex. App.—San Antonio 2008) (observing that two trial

judges conducted informal inquiries into defendant’s mental competence in two

pretrial Faretta hearings and found him competent, that the record from these

pretrial proceedings contained no evidence suggesting that he did not have a

rational as well as factual understanding of the proceedings against him, and that

17
the record from the trial proceedings did not show “some evidence” to suggest he

was incompetent to stand trial), rev’d in part on other grounds, 305 S.W.3d 546,

561 (Tex. Crim. App. 2009).

As set out in extensive detail above, the record holds no suggestion that

White was incompetent to stand trial, as his statements and testimony showed

that he had “sufficient present ability to consult with [his] lawyer with a

reasonable degree of rational understanding” and that he had a “rational as well

as factual understanding of the proceedings against [him].” See Tex. Code Crim.

Proc. Ann. art. 46B.003(a). Rather, the record reflects that the witnesses and

other trial participants merely found White unpleasant, particularly when he did

not get what he wanted.

The record further reflects that White had the capacity during the

proceedings to understand the potential consequences of rejecting the State’s

plea offers; that he disclosed to counsel pertinent facts, events, and states of

mind; that he understood the adversarial nature of the proceedings; that—until

the jury convicted him—he exhibited appropriate courtroom behavior; and that

there was no indication that he had a mental illness, was taking psychoactive

medication, or suffered from mental retardation. See id. art. 46B.024(1)–(5); see

also Jackson v. State, 391 S.W.3d 139, 143 (Tex. App.—Texarkana 2012, no

pet.) (noting that defendant’s “responses to questions were lucid, and her pleas

to the court to grant her community supervision intelligent”); Davis v. State, No.

09-10-00080-CR, 2010 WL 4156455, at *2 (Tex. App.—Beaumont Oct. 20, 2010,

18
no pet.) (mem. op., not designated for publication) (concluding that defendant’s

testimony “reflected his understanding of the use of enhancements in the

punishment phase; his reading selections, arguments, and responses to

questions reflect[ed] an understanding of the proceedings and an ability to

consult with counsel”); Rojas v. State, 228 S.W.3d 770, 773 (Tex. App.—Amarillo

2007, no pet.) (“[Defendant’s] comments, while procedurally improper and almost

certainly unwise, evidenced a proper understanding of the proceeding and the

factual basis for his prosecution.”); Lawrence v. State, 169 S.W.3d 319, 322–23

(Tex. App.—Fort Worth 2005, pet. ref’d) (noting that nothing in the record raised

a competency issue when most of defendant’s testimony—despite his pattern of

rambling speech and nonresponsive answers—“reveal[ed] that he simply wanted

his day in court and wanted an opportunity to tell his story his way”). Therefore,

we conclude that the trial court did not abuse its discretion by not conducting a

second informal inquiry into White’s competency, and we overrule White’s first

point.

IV. Special Prosecution

In his second point, White argues that the trial court erred by allowing the

special prosecution unit to prosecute his case because there was no showing

that the special prosecutor had the authority to do so.

A. White’s Complaint in the Trial Court

As we noted in our recitation above with regard to White’s competency,

White filed a pro se motion for habeas corpus relief on November 16, 2011,

19
complaining that, among other things, the special prosecutor was “posing as a

criminal district attorney.” In the cover letter of his motion, he also requested a

copy of the special prosecutor’s oath of office and the district attorney’s motion

for appointment of special prosecutor.

At the February 9, 2012 pretrial hearing, White again brought up his

problem with the special prosecutor acting as the district attorney. Specifically,

White stated, “I would like to know could he show me any type of documentation

that he is an Elected District Attorney or Appointed District Attorney?” After the

trial court informed White that the position was created by statute and ordered

the special prosecutor to provide a copy of it to White’s lawyer, White replied,

Okay. I -- I understand what you’re talking about, but he’s been
found -- he has filed motions and acted as a District Attorney and
then hide behind the State by saying he -- when he signs his
signature on it, he hides under that title, attorney for the state.
That’s an inappropriate title.

White argued that this made all of the special prosecutor’s cases void because

“he has to fall under that title, District Attorney.” Allensworth then added that,

having looked through the trial court’s file, he would stipulate that there was no

document that “purports Mr. Hernandez as a special prosecuting attorney in this

case,” but that “pursuant to the statute as you’ve said, he does have the authority

to act for the State in this type of prosecution. Furthermore, Mr. Hernandez has

been physically sworn in by Ms. Shelton as a special prosecuting attorney to

represent the State’s interest in all prison cases.”

20
 White persisted, complaining that Shelton was still the district attorney and

that

[I]t still doesn’t hide the fact that on my motions, you placed on there,
“District Attorney” and “his Assistant District Attorney.” That means if
it was her, that would have been “her Assistant District Attorney,” but
you said “his” as if you was the District Attorney. You’re not a
District Attorney. You’ve been posing as a District Attorney and
you’re not.

....

Then you hide behind attorney for the State. Anybody can fall for
that, Attorney General, Assistant Attorney, County Attorneys,
anybody can fall under attorney for the State. That’s a generic title.
You’re supposed to specifically fall under whatever you -- you’re a
special prosecutor. It didn’t have that title on there. It didn’t have
District Attorney on my motions. It has Attorney for the State. That’s
a generic title because anybody can fall under that.

White did not secure a ruling on this complaint.

Before trial, Allensworth raised the issue again at White’s insistence, and

the following dialogue ensued:

MR. ALLENSWORTH: The first -- both filed at the insistence
of my client. The first one deals with Mr. Hernandez’s ability to
represent the State of Texas in this case. Mr. Hernandez, as I’m
sure the Court shuck will show, has been sworn in as a special
prosecuting attorney under Section 2.01 and 2.02 of the Code of
Criminal Procedure.
Additionally, Mr. Hernandez previously has provided me a
memorandum of the law which indicates that he, as a state official
charged with prosecuting crimes on state lands or state prisons, has
the authority statewide to prosecute and doesn’t necessarily need
the appointment of special prosecutor.
Notwithstanding that memorandum of law and the matter
which I’ve -- and the designation from Ms. O’Brien, which I provided
to my client, my client insists that Mr. Hernandez does not have the
authority to act as a special prosecuting attorney in this case.

21
 As I understand my client’s argument, it is because he was
appointed by Ms. Shelton as opposed to a trial court judge. I think
that . . . Mr. Hernandez may have some ability to cast some light on
what my client’s arguments are and why he -- he’s considering and
does not feel that the motion is valid.

THE COURT: Mr. Hernandez, you can respond.

MR. HERNANDEZ: Well, for the record, I was sworn in by
Ms. Shelton to handle all the prison cases in the county. It’s actually
occurred several times. The last time I was sworn in was simply
because Ms. Shelton couldn’t find the copy of the oath of office that
the Defendant was requesting, so it was done again in front of Mr.
Allensworth and I believe Mr. Allensworth even got a copy of my
oath of office.

MR. ALLENSWORTH: I did.

MR. HERNANDEZ: So I mean, I’m fully sworn in, Judge. I
am also authorized by law to prosecute these cases and it’s a pretty
long and convoluted legal authority that gives our office the
jurisdiction over these cases and I can give the Court a brief on
it. . . .

THE COURT: I don’t need it. I’m familiar.

MR. HERNANDEZ: Yeah. So I -- I’m not an attorney pro tem.
I’m a special prosecutor. I have authority to handle these cases by
statutory law that was granted by the legislature giving us statewide
jurisdiction and I’ve additionally been sworn in by Ms. Shelton, so I
think I’m fully authorized.

MR. ALLENSWORTH: And again, Judge, Al [Hernandez], to
his credit, provided me a copy of that specific four-page single-
spaced type written memorandum at least two weeks -- or two
months ago. I’ve provided a copy of it to my client. My client found
it unpersuasive as to whether he’s a special prosecuting attorney.

The trial court overruled the motion.

22
B. White’s Complaint on Appeal

On appeal, White complains that the special prosecution unit does not

have stand-alone authority to prosecute prison cases, that only the elected

criminal district attorney of Wichita County can represent the State in criminal

prosecutions brought in Wichita County, that “[t]here is no authority for granting

the unit stand-alone authority to prosecute without a request from the elected

District Attorney in Wichita,” 5 and that there is no indication that the trial court

appointed the special prosecutor or that the district attorney’s office requested

help or the appointment of a special prosecutor.

C. Preservation of Error

To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). The trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

5
White acknowledges that Ferguson v. State, 335 S.W.3d 676, 681 (Tex.
App.—Houston [14th Dist.] 2011, no pet.), states that the special prosecution unit
has authority to prosecute inmate offenses, but he claims that this case is flawed
and should not be followed because it relied on dictum. Based on our resolution
below, we do not reach this argument. See Tex. R. App. P. 47.1.

23
objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena v.

State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).

Further, the complaint made on appeal must comport with the complaint

made in the trial court or the error is forfeited. Clark, 365 S.W.3d at 339; Lovill v.

State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be

preserved if the legal basis of the complaint raised on appeal varies from the

complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.

2009) (“Whether a party’s particular complaint is preserved depends on whether

the complaint on appeal comports with the complaint made at trial.”). To

determine whether the complaint on appeal comports with that made at trial, we

consider the context in which the complaint was made and the parties’ shared

understanding at that time. Clark, 365 S.W.3d at 339; Resendez v. State, 306

S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena, 285 S.W.3d at 464.

Based on the record before us, White’s argument in the trial court was that

the special prosecutor was “posing” as a criminal district attorney and therefore

could not prosecute the case because he had to actually be a county criminal

district attorney or had to have been appointed by the trial court. On appeal,

however, White complains in part that the special prosecution unit did not have

stand-alone authority to prosecute prison cases and that, without a request for

assistance from the Wichita County district attorney, there was no authority for

Hernandez to prosecute the case. Because this argument does not comport with

his arguments in the trial court, this portion of White’s second point is

24
unpreserved. 6 See Tex. R. App. P. 33.1; Clark, 365 S.W.3d at 339. We overrule

this part of White’s second point.

D. Appointment

In the remaining part of his second point, White argues that there is no

indication that the trial court appointed the special prosecutor.

Unlike an attorney pro tem, who is appointed by the trial court when the

district attorney is unable to appear in a case based on code of criminal

procedure article 2.07(a), a special prosecutor is appointed by the district

attorney and acts under his or her supervision and control. Delapaz v. State, 228

S.W.3d 183, 195–96 (Tex. App.—Dallas 2007, pet. ref’d) (citing State v.

Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, J.,

concurring); Mai v. State, 189 S.W.3d 316, 319 (Tex. App.—Fort Worth 2006,

pet. ref’d)); see also Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App.

2008) (“Although the terms ‘attorney pro tem’ and ‘special prosecutor’ are

sometimes used interchangeably and have many similarities, the two are

fundamentally different.”); Hartsfield v. State, 200 S.W.3d 813, 817 (Tex. App.—

Texarkana 2006, pet. ref’d) (stating that the county attorney must retain control

and responsibility for the prosecution when using a special prosecutor). “Court

6
Further, we note that it may be inferred from the record that the county
district attorney had requested Hernandez’s assistance because, as
acknowledged on the record by White’s trial counsel, the county criminal district
attorney had sworn in Hernandez to prosecute this case and others involving
offenses on prison property.

25
approval for a special prosecutor is not required because the ultimate

responsibility for the special prosecutor’s actions remains with the elected district

attorney.” Coleman, 246 S.W.3d at 82 n.19. A “special prosecutor” is an

attorney who is not part of the district attorney’s office but who is enlisted to

assist the district attorney in a particular case. 7 Haywood v. State, 344 S.W.3d

454, 461 (Tex. App.—Dallas 2011, pet. ref’d).

Because court approval was not required for Hernandez to be appointed a

special prosecutor by the district attorney, and because based on the hearings in

which this issue was discussed, the record reflects that Hernandez had the

authority to prosecute the case under the district attorney’s supervision and

control, 8 we overrule the remainder of White’s second point.

7
Government code section 41.102(b) provides that a prosecutor may
request the assistance of the attorney general “and the attorney general may
offer to the prosecuting attorney the assistance of his office, in the prosecution of
all manner of criminal cases . . . . In requesting or accepting such assistance, a
prosecuting attorney may appoint any assistant attorney general as an assistant
prosecuting attorney.” Tex. Gov’t Code Ann. § 41.102(b) (West 2004 & Supp.
2012); see also id. § 41.302 (West Supp. 2012) (“The special prosecution unit is
an independent unit that cooperates with and supports prosecuting attorneys in
prosecuting offenses and delinquent conduct described by Article 104.003(a),
Code of Criminal Procedure.”). Code of criminal procedure article 104.003(a)
pertains to prosecution of a criminal offense, like this one, committed on property
owned or operated by or under contract with the Texas Department of Criminal
Justice, or “committed by or against a person in the custody of the department.”
Tex. Code Crim. Proc. Ann. art. 104.003(a) (West 2006 & Supp. 2012).
8
As noted above, in the trial court, White’s attorney conceded that
Hernandez had been sworn in as a special prosecuting attorney by the county
criminal district attorney to represent the State’s interest in all prison cases and
that he had received a copy of Hernandez’s oath of office and had seen him
sworn in by the county criminal district attorney.

26
 V. Lesser-Included Offense

In his third point, White contends that the trial court erred by denying his

request for a lesser-included offense instruction on assault.

A. Standard of Review and Applicable Law

We use a two-step analysis to determine whether an appellant was entitled

to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993).

First, the lesser offense must come within article 37.09 of the code of

criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v.

State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). White was indicted for assault on

a public servant, which required him to intentionally, knowingly, or recklessly

cause bodily injury to Jesse Sixtos by striking him with a piece of metal when

White knew that Sixtos was a public servant—a correctional officer—and Sixtos

was lawfully discharging an official duty by supervising inmates. See Tex. Penal

Code Ann. § 22.01(a), (b)(1) (West 2011). Assault is a lesser-included offense of

assault on a public servant. See id. § 22.01(a)(1); Ex parte Watson, 306 S.W.3d

259, 273 (Tex. Crim. App. 2009) (op. on reh’g) (stating that an offense is a

lesser-included offense of another offense under article 37.09(1) if the indictment

for the greater-inclusive offense alleges all of the elements of the lesser-included

offense).

27
 Second, some evidence must exist in the record that would permit a jury to

rationally find that if the appellant is guilty, he is guilty only of the lesser offense.

Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in

the context of the entire record. Moore, 969 S.W.2d at 8. There must be some

evidence from which a rational jury could acquit the appellant of the greater

offense while convicting him of the lesser-included offense. Id. The court may

not consider whether the evidence is credible, controverted, or in conflict with

other evidence. Id. Anything more than a scintilla of evidence may be sufficient

to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

B. Evidence

Officer Sixtos testified that he was employed as a correctional officer and

that on December 16, 2008, he was on duty, in uniform, asking offenders held in

administrative segregation if they wanted to go to recreation and to shower as

part of his inmate-supervision duties. He was looking down at his recreation log

when he approached White’s cell. He asked White if he was going to recreation,

and when he looked up, White used a homemade spear made from rolled up

paper with a staple on the end to jab him in the cheek. Office Sixtos said that the

staple went through his cheek and hit him in the top upper part of his gum,

leaving a small hole in his face. He said that the weapon was not recovered.

Officer Sixtos stated that inmates housed in administrative segregation

were there because they were either assaultive offenders or were in protective

28
custody for their own safety. Inmates in administrative segregation spent twenty-

three hours a day in their cells, with one hour of recreation and one shower a day

during which they were not allowed any human contact and were isolated from

physically harming each other. During cross-examination, Sixtos said that there

was no videotape of the incident with White, and he denied that he knew about

White’s complaints against him for use of excessive force on October 22, 2008.

Officer Christopher Beason, another correctional officer, testified that he

had been operating the control station for the doors to the cell block area on the

date of the incident. He said that Officer Sixtos was in uniform that day and that

the uniform clearly identified him as a correctional officer. Officer Beason saw

Officer Sixtos jump back from White’s cell as if something had been thrown at

him and then hold his left cheek, which was bleeding.

White stated that he did not assault Officer Sixtos on December 16, 2008.

Instead, he said that fifteen minutes after he told Officer Sixtos that he did not

want to go out for recreation, a five-man team showed up at his cell, told him to

strip without explanation, placed him in handcuffs and shackles, and left him

naked in another cell.

White testified that Officer Sixtos was lying because White was a “writ

writer” who had written him up several times. White said that the reason he had

started writing grievances against the officer was because on October 22, 2008,

Officer Sixtos and another officer threw him on the floor and split his lip open.

During cross-examination, White further testified that on December 16, Officer

29
Sixtos had called for the five-man team because he wanted to retaliate against

White but knew that he could not just pull him out of his cell and beat him up

“because he already had did that once.” White said that Officer Sixtos was never

injured and that the spot on his face was “a busted pimple,” not a puncture

wound. Photographs that were taken of Officer Sixtos’s face after the incident

were admitted in evidence.

C. Analysis

White argues on appeal that based on the cell door’s construction, 9 there

was more than a scintilla of evidence that he did not know it was a guard that he

struck. However, at trial, White denied having committed the assault at all and

claimed that Officer Sixtos had lied about the assault. Additionally, there is

nothing in the record to support his theory that White could have believed that it

was another inmate outside of his door. Instead, based on Officer Sixtos’s

testimony about administrative segregation, there was no evidence that an

inmate, escorted or unescorted, could have been outside of White’s cell at the

time of the incident.

Further, White offered no testimony to controvert Officers Sixtos’s and

Beason’s testimonies that Officer Sixtos was in uniform and performing his

regular duty as a correctional officer at the time of the assault. See Tex. Penal

Code Ann. § 22.01(d) (West 2011) (stating that the actor is presumed to have

9
Officer Sixtos described White’s cell door as a metal door with a four- to
six-inch-wide grate on each side with quarter- or fifty-cent-piece-sized holes.

30
known that the complainant was a public servant “if the person was wearing a

distinctive uniform or badge indicating the person’s employment as a public

servant”). To the contrary, White’s testimony about Officer Sixtos retaliating

against him for writing a grievance shows that he knew Officer Sixtos was a

correctional officer. Therefore, because there is no evidence in the record to

permit a jury to rationally find that if White was guilty, he was only guilty of the

lesser offense of assault, White was not entitled to a lesser-included offense

instruction. See Hall, 225 S.W.3d at 536; Moore, 969 S.W.2d at 8. We overrule

White’s third point.

VI. Punishment

In his fourth, fifth, and sixth points, White complains that the evidence is

insufficient to support his punishment and that forty years’ confinement is

disproportionate to his offense.

A. Sufficiency

In his fourth and fifth points, White claims that the evidence is insufficient

to show that his May 31, 1991 conviction in State’s Exhibit 2 became final before

the instant offense and to prove that he used or exhibited a deadly weapon. We

view all of the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements

challenged here beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012).

31
 1. Enhancement

The first enhancement paragraph alleged that on May 31, 1991, in cause

number 599722 in the 177th District Court of Harris County, Texas, White was

convicted of felony theft of an automobile and that he had previously been

convicted of a felony that had become final prior to the commission of that

offense. The second enhancement paragraph alleged that on February 21,

1990, in cause number 556160 in the 183rd District Court of Harris County,

Texas, White was convicted of felony theft of an automobile. On White’s behalf,

the trial court entered a plea of “not true” to each enhancement. The State then

reoffered and the trial court accepted into evidence all testimony and physical

objects that were introduced during the guilt-innocence phase of trial, which

included both judgments of conviction and White’s testimony about the

offenses. 10

In his opening brief on appeal, White complained that when the reporter’s

record was furnished to him, State’s Exhibit 2, the May 31, 1991 judgment of

conviction, was missing the page that showed the date the judgment was signed

and the judge’s signature, rendering it insufficient to support the enhancement

finding. Finding that White was correct about the missing page, we ordered the

10
During the guilt-innocence phase, among other things, White testified
that he had been convicted of two felonies for vehicle theft and judgments of his
convictions were entered in evidence. White stated that he did not dispute the
accuracy of the court records in State’s Exhibits 1 and 2, which contained his
prior convictions.

32
court reporter to prepare, certify, and file in this court a supplemental reporter’s

record containing the omitted page. See Tex. R. App. P. 34.6(d). The court

reporter has done so. 11

When the State seeks to enhance the punishment range for a charged

offense by relying on a prior judgment alleged in the indictment, it “must prove

beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921

(Tex. Crim. App. 2007). The State may prove both of these elements by the

defendant’s admission or by “documentary proof,” such as a judgment, that

contains sufficient information to establish both elements. Id. at 921–22. Once

the State links the defendant to a prior judgment, the burden shifts to the

defendant to prove the judgment is void. Sample v. State, No. 02-11-00292-CR,

2013 WL 2631343, at *4 (Tex. App.—Fort Worth June 13, 2013, pet. filed) (citing

Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987)). Based on the

complete exhibits now contained in the record, in addition to White’s testimony

during the guilt-innocence phase, we conclude that the evidence is sufficient to

support the finding that his May 31, 1991 conviction was final, and we overrule

White’s fourth point.

11
In his reply brief, White requested that he be given the opportunity to file
a supplemental brief to address this new page if we ordered the record
supplemented. We deny this request.

33
 2. Deadly Weapon

In his fifth point, White challenges the sufficiency of the evidence to

support the deadly weapon special issue and argues that “the question is

whether putting a standard office staple . . . on the end of a rolled up piece of

paper constitutes a deadly weapon.”

a. Applicable Law

Section 1.07(a)(17) defines “deadly weapon” as “a firearm or anything

manifestly designed, made, or adapted for the purpose of inflicting death or

serious bodily injury” or “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” Tex. Penal Code Ann.

§ 1.07(a)(17) (West 2011 & Supp. 2012); Mills v. State, No. 10-11-00144-CR,

2012 WL 2053847, at *3 (Tex. App.—Waco June 6, 2012, pet. ref’d) (“Case law

has made it clear that the word ‘anything’ in the definition of a deadly weapon

means just that: anything.”). “Serious bodily injury” means “bodily injury that

creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Tex. Penal Code Ann. § 1.07(a)(46) (West 2011 & Supp.

2012).

To establish that a defendant’s use of an item constituted the use of a

deadly weapon, the State is not required to introduce the item into evidence; a

witness may establish the use of the item as a deadly weapon by describing the

item and the manner in which it was used. See Magana v. State, 230 S.W.3d

34
411, 414 (Tex. App.—San Antonio 2007, pet. ref’d). In Magana, as here, the

State did not introduce the actual item alleged as a deadly weapon into evidence,

and the complainant’s injuries appeared to be superficial. Id. Therefore, the

court looked at whether the item in that case—a knife—was capable of causing

death or serious injury in the manner of its use or intended use, considering such

factors as its size, shape, and sharpness; the manner of its use or intended use;

the nature or existence of inflicted wounds; evidence of its life-threatening

capabilities; the physical proximity between the victim and the weapon; and any

words spoken by the assailant. Id. The court concluded, under the sufficiency

standard set out above, that the evidence supported a determination that the

knife was a deadly weapon: the appellant came towards the complainant while

she was using a pay phone and stabbed her with a pocketknife four times; as he

stabbed her, he told her that he wished she would die; the location and number

of the wounds required the emergency room doctor to order an x-ray to check the

complainant’s lungs, heart, and major vessels; and the emergency room doctor

testified that although he did not see the knife, he considered a small pocket

knife to be a deadly weapon and that it is capable of causing serious bodily injury

or death. Id.; see also Martinez v. State, No. 02-11-00100-CR, 2012 WL

1059465, at *3 (Tex. App.—Fort Worth Mar. 29, 2012, no pet.) (mem. op., not

designated for publication) (holding evidence sufficient to support deadly weapon

finding when record showed that appellant threatened complainant with death

while wielding a pocket knife with a three-to-four inch sharp blade only two

35
inches from the complainant’s face); Simmons v. State, 106 S.W.3d 756, 758–

60, 762–63, 765 (Tex. App.—Texarkana 2003, no pet.) (affirming conviction for

aggravated assault with a deadly weapon on a public servant when inmate

stabbed correctional officer with a homemade spear composed of a sharpened

fragment of chain link fence attached to a paper handle); Shugart v. State, 32

S.W.3d 355, 360 (Tex. App.—Waco 2000, pet. ref’d) (op. on reh’g) (holding

evidence of possession of deadly weapon sufficient when item was “an ice-pick

type weapon” composed of a metal rod that one witness speculated was

originally a spring from a night light, the treating nurse testified that the weapon

could possibly cause serious injury to the eye or ear or death if used to penetrate

the arteries of the neck, and another guard said he had seen inmates seriously

injured with weapons like it).

Admission of the weapon, although not critical, greatly aids jurors in

determining whether a weapon is capable of causing death or serious bodily

injury. Simmons, 106 S.W.3d at 763 (stating that the spear-like weapon admitted

into evidence was not a deadly weapon per se but could be judged by ordinary

jurors to be capable of causing serious bodily injury, given appellant’s use and

intended use of the weapon). Although here the weapon itself was not admitted,

a staple of corresponding size to the one described by Officer Sixtos was

admitted as Defendant’s Exhibit 5.

36
 b. Analysis

White argues that “[u]nless there is a rational and logical connection

between poking someone on the cheek with a staple and inflicting serious bodily

injury or death then no legally sufficient evidence exists for such a finding of

deadly weapon.”

With regard to the item’s size, shape, sharpness, and its use, Officer

Sixtos testified that White used a “homemade spear” to jab him in the cheek. He

described the spear as around eighteen inches long, with a circumference a bit

wider than a No. 2 pencil, made from a rolled up newspaper or magazine that

had been wetted over to make it hard, with a metal staple attached at the end.

Officer Sixtos said that the spear was never recovered and that this kind of

weapon was easily disposed of, by flushing it, tearing it to pieces, or sliding it into

another cell.

Officer Beason also testified that usually every cell would have a rod made

of paper “but not with a weapon on the end of it.” He stated that such paper rods

were routinely used by offenders “for traffic and trading,” with a line tied to the

end so that inmates could pass things between their cells. However, Officer

Beason also stated that these rods could be used as weapons and that in the last

three and a half years, he had seen one used as a weapon “about a hand full of

times.” From Officer Sixtos’s and Officer Beason’s testimonies, the jury could

have concluded that the item was used as, and intended by White to be used as,

a weapon.

37
 With regard to the nature of the inflicted wound and the existence of its life-

threatening capabilities, Officer Sixtos testified that the staple went through his

cheek and hit him in the top upper part of his gum, leaving a small hole in his

face, while White testified that the spot on Officer Sixtos’s face was “a busted

pimple,” not a puncture wound. Photographs that were taken of Officer Sixtos’s

face after the incident were admitted in evidence, allowing the jury to decide.

Officer Sixtos also testified that “every now and then,” he had to take a

blood test to make sure that he had not contracted hepatitis C or HIV and that

after the incident, his main concern was making sure that he “wasn’t fixing to

contract any kind of disease from this situation” because the staple could have

been dipped in something. He also expressed relief that he had been wearing

his eye protection at the time of the assault “because otherwise [White] would

have gotten [him] in [his] eye and that could have probably caused some severe

damage.” During cross-examination, Officer Sixtos said, “Yes,” when White’s

counsel asked him, “Despite the fact that according to you, my client stabbed you

in the face for no reason, potentially exposing you to hepatitis C if you’re lucky

and AIDS if you’re not, that you don’t harbor any ill-will towards my client; isn’t

that what you said?” [Emphasis added.] Officer Beason noted that Officer Sixtos

held his left cheek and was bleeding after the assault. 12

12
While there was no evidence presented about how HIV, the precursor to
the development of AIDS, is transmitted, and White’s medical history was not
entered in evidence, it appears that this potential consequence of the puncture
wound was before the jury in making its deadly weapon finding. Compare Henry
38
 Viewed in the light most favorable to the deadly weapon finding, the jury

could have found that the homemade spear, composed of a staple and paper, fell

under the definition of “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury” because the evidence showed

that it was capable of puncturing the skin and causing injury, from damage to an

unprotected eye to infection with a terminal disease. See Tex. Penal Code Ann.

§ 1.07(a)(17), (46). Therefore, we overrule White’s fifth point.

B. Proportionality

In his sixth point, White argues that forty years’ confinement is excessive,

cruel, and unusual punishment because it is grossly disproportionate to his

offense.

v. State, No. 08-05-00364-CR, 2007 WL 2405798, at *4 n.3 (Tex. App.—El Paso
Aug. 23, 2007, pet. ref’d) (not designated for publication) (leaving open the
question of whether it is appropriate to judicially notice scientific facts about HIV
transmission), with Mathonican v. State, 194 S.W.3d 59, 68–69 (Tex. App.—
Texarkana 2006, no pet.) (stating that “it has come to be beyond reasonable
debate, generally known, and readily determinable by resort to unassailable
sources, that seminal fluid from an HIV-positive man is capable of causing death
or serious bodily injury to another person when the HIV-positive man engages in
unprotected sexual contact,” and concluding that evidence was sufficient to
support deadly weapon charge regarding appellant’s HIV positive seminal fluid
on remand), Campbell v. State, No. 05-08-00736-CR, 2009 WL 2025344, at *1,
*3 (Tex. App.—Dallas July 14, 2009, pet. ref’d) (not designated for publication)
(affirming conviction for harassing a public servant and using or exhibiting a
deadly weapon when HIV-positive appellant spit on police officer), and Carrie
Griffin Basas, The Sentence of HIV, 101 Ky. L.J. 543, 563 (2012–2013)
(“Negative public reactions to HIV as a deadly threat have not been quashed
after three decades of experience with the illness.”).

39
 Punishment imposed within the statutory limits, as here, is generally not

subject to challenge for excessiveness. See Kim v. State, 283 S.W.3d 473, 475

(Tex. App.—Fort Worth 2009, pet. ref’d). Subject only to a very limited,

“exceedingly rare,” and somewhat amorphous Eighth Amendment gross-

disproportionality review, a punishment that falls within the legislatively

prescribed range and that is based on the sentencer’s informed normative

judgment, is unassailable on appeal. See id. 475–76 (citing Ex parte Chavez,

213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)).

In assessing proportionality, we first make a threshold comparison of the

offense against the severity of the sentence. Moore v. State, 54 S.W.3d 529,

542 (Tex. App.—Fort Worth 2001, pet. ref’d) (citing Solem v. Helm, 463 U.S. 277

291–92, 103 S. Ct. 3001, 3010 (1983); McGruder v. Puckett, 954 F.2d 313, 316

(5th Cir. 1992), cert. denied, 506 U.S. 849 (1992)). Only if we determine that the

sentence is grossly disproportionate to the offense do we need to consider

whether the sentence is comparable to sentences imposed upon other criminals

in the same jurisdiction and sentences imposed for commission of the same

crime in other jurisdictions. Robertson v. State, 397 S.W.3d 774, 776 (Tex.

App.—Houston [14th Dist.] 2013, no pet.).

In making our threshold inquiry, we judge the gravity of the offense in light

of the harm caused or threatened to the victim or society and the offender’s

culpability. Solem, 463 U.S. at 291–92, 103 S. Ct. at 3010. Here, White was

accused of assaulting a public servant, which is a third degree felony. See Tex.

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Penal Code Ann. § 22.01(b) (stating that intentionally, knowingly, or recklessly

causing bodily injury to another is a class A misdemeanor except when, among

other things, the offense is committed against a person the actor knows is a

public servant while the public servant is lawfully discharging an official duty).

The jury found that White had committed the assault with a deadly weapon, and

the evidence presented at trial allowed the jury to conclude that the weapon

could have infected the complainant with a disease or caused other harm to him

or others.

The jury also heard testimony about White’s behavior in prison. White

testified that he had served all twenty years of his sentence for vehicle theft

because he had been denied parole four times. He agreed on cross-examination

that he had lost his good time credit for misconduct. 13 At the time of the offense

in this case, White had spent three years in administrative segregation; he had

also previously spent a period of five years in administrative segregation while

serving the twenty-year sentence. White said that the first time he was placed in

administrative segregation, he had been accused of assaulting an officer but that

the officer had actually assaulted him and then lied about it. White said that the

second time he was placed in administrative segregation, it was because the

13
White had three years left on the twenty-year sentence at the time of the
offense in this case, and he finished that sentence while awaiting trial in the
instant case.

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officers claimed he was aggressive but that they were lying because he had been

“writing officers up.”

The jury also heard about White’s unpleasant behavior while awaiting trial

in this case and his previous felony convictions, which enhanced the punishment

range that the jury could consider to “imprisonment . . . for life, or for any term of

not more than 99 years or less than 25 years.” Id. § 12.42(d) (West 2011 &

Supp. 2012).

Based on the evidence in this case, and particularly in light of the

punishment range, we cannot say that the jury’s forty-year sentence is grossly

disproportionate to the offense. Therefore, we do not reach the question of

whether the sentence is comparable to sentences imposed upon other criminals

in the same jurisdiction and sentences imposed for commission of the same

crime in other jurisdictions. But cf. Guy v. State, No. 12-05-00244-CR, 2006 WL

2361445, at *2 (Tex. App.—Tyler Aug. 16, 2006, pet. ref’d) (mem. op., not

designated for publication) (concluding that appellant’s life sentence for

aggravated assault of a public servant was not unconstitutionally

disproportionate); Maldonado v. State, No. 12-03-00429-CR, 2005 WL 2862223,

at *1, *4 (Tex. App.—Tyler Oct. 31, 2005, pet. ref’d) (mem. op. on reh’g, not

designated for publication) (holding that, even absent waiver, thirty-year

sentence for aggravated assault on a public servant with a deadly weapon was

not unconstitutionally disproportionate). We overrule White’s sixth point.

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 VII. Conclusion

Having overruled all of White’s points, we affirm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 15, 2013

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