Dennis Steele v. State

Opinion issued March 1, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00618-CR
NO. 01-14-00619-CR
———————————
DENNIS STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case Nos. 13CR3049 & 13CR3050

OPINION

A jury convicted appellant, Dennis Steele, of two counts of the third-degree

felony offense of assault on a public servant for his assault on two officers at the

Texas City Jail. After finding the allegations in two enhancement paragraphs true,
the jury assessed punishment at fifty years’ confinement for each offense, to run

concurrently.1 In three issues, appellant contends that (1) the trial court abused its

discretion by denying his request for a jury instruction on the lesser-included

offense of resisting arrest; (2) the trial court abused its discretion by denying his

request for a jury instruction on self-defense; and (3) the State failed to present

sufficient evidence that he assaulted Officer E. Cisneros.

We affirm.

Background

Shortly after 5:00 p.m. on November 6, 2013, appellant drove his car

through a construction barricade and onto freshly-poured concrete at a construction

site in Texas City before crashing into a dirt berm. After he crashed, appellant

continued to try to drive forward until the engine of his car caught on fire. Oscar

Gonzales, the project superintendent of the construction site, and one of his

inspectors helped appellant from the car. Gonzales testified that appellant could

not stand on his own, that he kept trying to return to his car even though the engine

was on fire, and that he smelled of alcohol. Firefighters and police officers arrived

at the scene right after Gonzales helped appellant from his car.

1
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (Vernon Supp. 2015). The
assault against Officer E. Cisneros was tried in cause number 13CR3049 and
resulted in appellate cause number 01-14-00618-CR. The assault against Officer
P. Owens was tried in cause number 13CR3050 and resulted in appellate cause
number 01-14-00619-CR.

2
 Texas City Police Department Officer B. Berg arrived at the scene of the

accident, arrested appellant based on suspicion of driving while intoxicated

(“DWI”), and transported appellant to the Texas City Jail. After arriving at the jail,

Officer Berg escorted appellant to the DWI interview room to complete his DWI

investigation, which included conducting sobriety tests and obtaining breath

specimens from appellant. Appellant provided two breath specimens which

demonstrated a blood alcohol concentration of .223 and .208, or nearly three times

the legal limit of .08. Appellant was calm and not combative during the interview

process.

After Officer Berg completed the DWI interview, appellant was placed in

one of two small holding cells located near the booking area of the Texas City Jail.

This holding cell had no fixtures, such as a bed or a toilet, and was intended to hold

suspects temporarily while they were going through the initial booking process or

were awaiting transfer to the Galveston County Jail.2 This holding cell was

monitored by video surveillance, and the trial court admitted into evidence a copy

of the video recording of appellant in this holding cell.

Officer S. Jackson, a jailer at the Texas City Jail on the day appellant was

arrested, described appellant’s demeanor at the time Officer Berg placed him in the

2
This holding cell was not the same as the detoxification cell, or “drunk tank,”
which was a larger cell used specifically to house intoxicated suspects on a
temporary basis.

3
holding cell as “quiet and still intoxicated.” Approximately thirty minutes after

appellant was placed in a holding cell, Officer Jackson needed to use the cell to

hold inmates who were being transferred to the Galveston County Jail. She waited

for another officer to arrive to assist with the inmate transfer before attempting to

move appellant from the holding cell to a detoxification cell. When asked which

officer arrived to help move appellant, Officer Jackson responded, “Officer Eric

Cisneros.”

The video recording of the holding cell reflected that, at this time, appellant

was lying curled up in the fetal position on the floor of the cell, apparently asleep,

with his shirt over his head and his hands inside his shirt. When Officer Cisneros

arrived, Officer Jackson opened the holding cell, tapped appellant on the foot, and

asked him to stand so he could be moved to a detoxification cell. Appellant did not

verbally respond to Officer Jackson, so she asked Officer Cisneros for assistance.

When Officer Cisneros asked him to stand up, appellant responded with profanity

and an obscene gesture. Officer Jackson testified that Officer Cisneros stayed

calm, did not raise his voice, and did not curse at appellant. When appellant still

failed to respond to Officer Cisneros’s requests, Cisneros asked Officer Jackson if

she could find the other jailer working that night, Detention Officer P. Owens.

Appellant still did not physically respond to either Officer Cisneros’s or

Officer Owens’s requests, so both officers took hold of appellant’s arms to try to

4
lift him into a standing position. Neither officer “move[d] fast [or] jerk[ed]”

appellant up from the floor. Officer Jackson testified that, at that point, appellant

quickly stuck a hand out of his shirt and grabbed hold of Officer Cisneros’s arm.

After appellant began physically struggling with Officers Cisneros and Owens,

Officer Jackson left the holding cell and called dispatch to ask for assistance. She

arrived back at the holding cell with Corporal Moreno, who “dry stunned”

appellant with a Taser in an attempt to subdue him. The officers’ struggle with

appellant lasted several minutes, and Officer Jackson testified that she observed

that both Officer Cisneros and Officer Owens had cuts on their arms. Appellant

was later moved to another holding cell without further incident.

Officer Owens testified that he first had contact with appellant when

Officers Cisneros and Jackson informed him that appellant would not move from

the holding cell. Officer Owens spoke to appellant with a calm voice and asked

him to get up so he could move to another cell where he could sleep. Appellant

responded to him with profanity and stated, “I’m not moving anywhere.” As

Officer Owens and Officer Cisneros lifted appellant to his feet, appellant grabbed

at Cisneros “in an aggressive manner” and started biting and scratching Cisneros.

Appellant also scratched Officer Owens with his fingernails. Officer Owens

identified photographs of injuries to his arm and hand that he sustained in the

altercation with appellant. Officer Owens observed that Officer Cisneros also had

5
injuries from the incident, and he described Cisernos’s injuries as significantly

worse than his own.

Officer Owens acknowledged that the officers and appellant ended up on the

floor during the struggle, and he had his entire body weight on appellant pinning

him to the floor because appellant was still fighting them. At one point during the

incident, Officer Cisernos was able to put one handcuff on appellant’s wrist, but

they were not able to gain control over appellant until Corporal Moreno arrived.

On the second day of trial, the State called “Officer Eric Cisneros” as a

witness. Officer Cisneros identified himself as “Officer Cisneros with the Texas

City Police department.” Officer Cisneros identified appellant in court as the

inmate he was called to help move from one booking cell to another within the

Texas City Jail on November 6, 2013. He testified that when he first encountered

appellant, appellant was lying on the ground in the fetal position with his hands

under his shirt. Officer Cisneros asked appellant to get up and explained that they

needed to move him to another cell. Appellant ignored him at first but then made

an obscene gesture and used profanity. After Officer Owens arrived to assist,

Officer Cisneros tried to get hold of appellant’s arms underneath his shirt to lift

him to his feet. Appellant then began physically struggling and fighting with the

officers, despite their requests that he calm down so they could move him to

another cell. During the struggle, appellant kept reaching for Officer Cisneros’s

6
neck and chest, and he succeeded in scratching Cisneros on his right forearm.

Throughout the struggle, Officer Cisneros was on top of appellant “off and on” in

an attempt to handcuff him.

Officer Cisneros testified that he bled as a result of the scratches on his arm,

and he identified several photographs admitted into evidence as photographs of the

injuries to his arm. He stated that he had scars from the scratches and bite marks

that he had received, and he showed these scars to the jury. Officer Cisneros

testified that appellant hit, kicked, scratched, and bit him during the struggle.

On cross-examination, Officer Cisneros acknowledged that he and Officer

Owens forced appellant to the ground. He testified that they did so because

appellant was already physically resisting and struggling against them in response

to their attempts to lift him to his feet. Officer Cisernos used his weight to pin

appellant to the ground in an attempt to handcuff him.

The trial court admitted the surveillance video recording of the holding cell,

which captured all activity in the cell from the time Officer Berg first placed

appellant there after his DWI interview until the time he was finally escorted to a

detoxification cell. This recording did not have any audio. Approximately thirty-

five minutes into the recording, Officer Jackson appeared and tapped on

appellant’s foot. Appellant shifted slightly but did not get up. Officer Cisneros

then appeared and addressed appellant. When appellant did not physically

7
respond, Officer Cisneros and Officer Owens took hold of appellant’s arms and

tried to pull him into a sitting position and then onto his feet. As the officers did

this, appellant began to physically struggle, moving erratically to try to stay on the

ground and then to get out of the officers’ grasp. Officers Cisneros and Owens

then took appellant to the floor, and they occasionally pinned him to the floor in an

attempt to handcuff him. Appellant tried to kick the officers throughout the

encounter. Approximately two-and-a-half minutes after the struggle began,

Corporal Moreno arrived and used his Taser, which ultimately subdued appellant.

At the charge conference, appellant requested a jury instruction on the

lesser-included offense of resisting arrest and an instruction on self-defense. The

trial court denied both of these instructions. The jury found appellant guilty of two

counts of assault on a public servant and, after finding the allegations in two

enhancement paragraphs true, assessed punishment at fifty years’ confinement.

This appeal followed.

Sufficiency of the Evidence

In his third issue, appellant contends that the State failed to present sufficient

evidence that he assaulted Officer E. Cisneros, as alleged in the indictment in cause

number 13CR3049, because the Officer Cisneros who testified at trial never

identified himself as “Officer E. Cisneros” or “Officer Eric Cisneros.”

8
 A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted).

We may not re-evaluate the weight and credibility of the evidence or

substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the

jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the

9
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.”).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,

343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at

778).

B. Identity of Complainant

In cause number 13CR3049, the State indicted appellant for the offense of

assault on a public servant, “E. Cisneros.” A person commits this offense if the

person intentionally, knowingly, or recklessly causes bodily injury to a person the

actor knows is a public servant while the public servant is lawfully discharging an

official duty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (Vernon Supp.

2015). The complainant’s name is not a substantive element of this offense. Cf.

Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (holding that Penal

Code section 22.04(a)(3) defines offense as “injury to an elderly individual” not

“injury to an elderly individual named Olen M. Fuller”). Thus, the State’s failure

to prove the complainant’s name exactly as alleged in the indictment does not

render the evidence insufficient to support the conviction under Jackson. See id.

10
Instead, with regard to the identity of the complainant, “the State must prove that

the victim alleged in the indictment is the same person as the victim proved at

trial.” Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012); see also

Byrd v. State, 336 S.W.3d 242, 252 (Tex. Crim. App. 2011) (“Although the name

of the owner is not a substantive element of theft, the State is required to prove,

beyond a reasonable doubt, that the person (or entity) alleged in the indictment as

the owner is the same person (or entity)—regardless of the name—as shown by the

evidence.”) (emphasis in original).

As a matter of state law sufficiency of evidence review, we measure

evidentiary sufficiency against the elements of the offense as defined by the

hypothetically correct jury charge for the case. See Fuller, 73 S.W.3d at 252;

Gollihar v. State, 46 S.W.3d 243, 255–56 (Tex. Crim. App. 2001). In each case

that involves a sufficiency of evidence claim based upon a variance between the

indictment and the proof at trial, we must make a materiality inquiry, and only

“material” variances render the evidence insufficient. Fuller, 73 S.W.3d at 253

(citing Gollihar, 46 S.W.3d at 257). The materiality inquiry “requires a

determination of whether the variance deprived the defendant of notice of the

charges or whether the variance subjects the defendant to the risk of later being

prosecuted for the same offense.” Id. (citing Gollihar, 46 S.W.3d at 257). We

may disregard “[a]llegations giving rise to immaterial variances” when considering

11
the hypothetically correct jury charge, but “allegations giving rise to material

variances must be included.” Id. (quoting Gollihar, 46 S.W.3d at 257).

The Dallas Court of Appeals addressed an analogous situation in Davey v.

State, which was also an assault-on-a-public-servant case. 989 S.W.2d 52 (Tex.

App.—Dallas 1998, pet. ref’d). In that case, the indictment alleged that appellant

assaulted “M. Osborne,” a detention officer for the Dallas County Sheriff’s

Department. Id. at 54. At trial, an Officer Osborne testified and identified herself

as “Detention Service Officer Osborne.” Id. She testified that she and a male

officer were escorting the defendant to his cell when the defendant began

struggling and kicked her in the chest. Id. The male officer involved in the

struggle testified that “he and ‘Officer Osborne’” were escorting the defendant to

his cell when the assault occurred, and another officer testified that he “received an

officer assistance call from ‘Officer Osborne,’ and assisted ‘Ms. Osborne’ in

restraining [the defendant].” Id. The defendant testified on his own behalf and

“identified the female detention service officer who escorted him from the gym as

‘Ms. Osborne.’” Id. He also acknowledged the date on which the incident with

“[the male officer] and Osborne” took place. Id.

The Dallas Court of Appeals concluded that any rational factfinder could

have found beyond a reasonable doubt that “the detention service officer Osborne

who testified at trial was the complainant, ‘M. Osborne,’ the detention officer

12
alleged in the indictment.” Id. The court also concluded that even if a variance

occurred, the variance did not require reversal. Id. In his testimony, the defendant

“recognized ‘Ms. Osborne’ as the female detention service officer present during”

the incident, and his testimony and Officer Osborne’s testimony “demonstrate[d]

he had notice of the charges against which he was to defend.” Id. at 55. The court

held that “the variance, if any, between the allegation of ‘M. Osborne’ and the

proof of ‘Ms. Osborne,’ ‘Detention Services Officer Osborne,’ and ‘Officer

Osborne’ did not affect a substantial right of [the defendant.]” Id.

Here, the indictment in cause number 13CR3049 alleged that appellant

“intentionally, knowingly, or recklessly cause[d] bodily injury to E. Cisneros . . . a

peace officer . . . .” Officer Jackson testified that “Officer Eric Cisneros” arrived

to help her transfer appellant from the holding cell to another cell within the Texas

City Jail. When appellant remained uncooperative and refused to move from the

holding cell, Officer Cisneros asked Officer Jackson to find Officer Owens, so he

could also assist. Officer Jackson saw appellant “grab[] ahold of Officer

Cisneros’s arm.” After the incident, Officer Jackson observed that “Officer

Cisneros’s right arm had cuts on his arm.” Officer Jackson viewed the surveillance

video of the holding cell while on the witness stand and identified “Officer

Cisneros” as one of the officers who arrived to assist with the transfer of appellant.

13
 Officer Owens testified that he became involved with appellant when

“Officer Cisneros and Detention Officer Jackson advised [him] that [appellant]

would not move” from the holding cell. He testified that he and Officer Cisneros

“got [appellant] up to his feet and [appellant] pulled his arms through his shirt and

began to grab Officer Cisneros.” Officer Owens stated that appellant grabbed

Officer Cisneros in “an aggressive manner” and that appellant “was biting and

scratching Officer Cisneros.” He testified that he observed that Officer Cisneros

had scratch marks as a result of the incident and that these injuries were

significantly worse than his own injuries.

On the second day of trial, the prosecutor stated, “At this time the State calls

Officer Eric Cisneros.” Officer Cisneros introduced himself as “Officer Cisneros

with the Texas City Police department” and testified that he is a certified peace

officer. Officer Cisneros testified that he encountered appellant when he “was

called to the police department to assist a jailer in helping her remove one inmate

from the booking cell to another cell.” He identified appellant in court as the

inmate he had been called to transfer. Officer Cisneros identified both himself and

appellant on the recording of the surveillance video of the holding cell. He

testified concerning the struggle with appellant, and he stated that appellant

scratched him on his right forearm during the incident. Officer Cisneros testified

that State’s Exhibits 7 through 12 consisted of photographs taken after the incident,

14
and he identified himself and his injuries in the photographs. He testified that he

had scars on his arms as a result of the incident, and he showed those scars to the

jury.

Viewing the evidence in the light most favorable to the verdict, as we are

required to do when reviewing the sufficiency of the evidence, we conclude that

any rational factfinder could have found beyond a reasonable doubt that the Officer

Cisneros who testified at trial was the complainant “E. Cisneros” alleged in the

indictment.3 See Davey, 989 S.W.2d at 54; see also Johnson, 364 S.W.3d at 295

(“[T]he victim’s name need not be proved with exactness, but the State must prove

that the victim alleged in the indictment is the same person as the victim proved at

trial.”); Byrd, 336 S.W.3d at 252 (stating same). Furthermore, even if the State

failed to prove the complainant’s name exactly as alleged in the indictment, the

evidence is not insufficient under Gollihar. See Fuller, 73 S.W.3d at 254. The

complainant’s name is not a statutory element of the offense of assault on a public

servant. See id.; see also TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1). Any

variance between the indictment and the proof at trial in this case is immaterial.

3
In his appellate brief, appellant acknowledges that Officer Jackson “testified that
an Officer Eric Cisneros was present at the scene and assisted her when Appellant
did not respond to her commands initially,” but he argues that “her testimony
alone is insufficient to meet the elements of the indictment.” In making this
argument, appellant ignores the testimony of Officer Owens and Officer Cisneros
himself, both of whom testified that appellant caused injury to Officer Cisneros
during the struggle.

15
See Fuller, 73 S.W.3d at 254; Davey, 989 S.W.2d at 54. The record contains no

indication that appellant “did not know whom he was accused of injuring or that he

was surprised by the proof at trial,” and the variance “does not subject appellant to

another prosecution for the same offense.” See Fuller, 73 S.W.3d at 254; Davey,

989 S.W.2d at 55 (holding that variance, if any, between allegation of “M.

Osborne” and proof of “Ms. Osborne,” “Detention Services Officer Osborne,” and

“Officer Osborne” did not affect defendant’s substantial rights).

We hold that the State presented sufficient evidence that appellant assaulted

“E. Cisneros.”

We overrule appellant’s third issue.

Jury Charge Errors

In his first issue, appellant contends that the trial court erred by denying his

request to include an instruction on the lesser-included offense of resisting arrest in

the jury charge. In his second issue, appellant contends that the trial court erred by

denying his request to include an instruction on self-defense in the jury charge.

A. Standard of Review

We use a two-step process in reviewing jury charge error. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists

in the charge. Id. If error does exist, we review the record to determine whether

the error caused sufficient harm to require reversal of the conviction. Id. When

16
the defendant properly objected to the error in the charge, reversal is required

unless the error was harmless. Id.; see also Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d, untimely filed) (providing that, to preserve

error in jury charge, defendant must object or request specific charge).

B. Denial of Lesser-Included Offense Instruction

We review the trial court’s decision regarding the failure to submit a lesser-

included offense instruction for an abuse of discretion. Brock v. State, 295 S.W.3d

45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Here, appellant was

charged with assault on a public servant under Penal Code section 22.01(a).

Appellant contends that he was entitled to a jury instruction on the lesser-included

offense of resisting arrest, an offense punishable under Penal Code section 38.03.

The indictments in this case charged appellant with the offenses of assault

on a public servant under Penal Code section 22.01(a)(1) and alleged that appellant

did then and there intentionally, knowingly, or recklessly cause bodily
injury to E. Cisneros [and P. Owens] by hitting the said E. Cisneros
[and P. Owens] with his hand and or by kicking the said E. Cisneros
[and P. Owens] with his foot and or leg and or by scratching and or
cutting the said E. Cisneros [and P. Owens] with his fingernail, and or
biting the said E. Cisneros [and P. Owens] with his teeth and the
defendant did then and there know that the said E. Cisneros [and P.
Owens were] then and there [public servants], to-wit: a peace officer
[and or a detention officer and or an employee of the Texas City
Police Department] and that the said E. Cisneros [and P. Owens were]
then and there lawfully discharging an official duty, to-wit: attempting
to restrain and or control the said Dennis Steel[e].

17
 A person commits the offense of assault on a public servant if the person:

(1) intentionally, knowingly, or recklessly (2) causes bodily injury (3) to a person

the actor knows is a public servant (4) while the public servant is lawfully

discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1). A

person commits the offense of resisting arrest, search, or transportation if the

person: (1) intentionally (2) prevents or obstructs a person he knows is a peace

officer (3) from effecting an arrest, search, or transportation of the actor (4) by

using force against the peace officer. Id. § 38.03(a) (Vernon 2011).

Code of Criminal Procedure article 37.09 provides that an offense

constitutes a lesser-included offense of a charged offense if:

(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or
public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). We use the statutory

elements and the facts alleged in the charging instrument to find lesser-included

offenses. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

18
 We employ a two-step analysis to determine whether the trial court should

have given an instruction on a lesser-included offense. See id. The first step in the

analysis is whether an offense is a lesser-included offense of the charged offense,

and this is a question of law that does not depend on the evidence to be produced at

trial. Id. This step must be capable of being performed before trial “by comparing

the elements of the offense as they are alleged in the indictment or information

with the elements of the potential lesser-included offense.” Id. at 535–36; see also

Ex parte Watson, 306 S.W.3d 259, 265 (Tex. Crim. App. 2009) (clarifying, in

intoxication-assault case, that particular manner in which injury was caused was

not “element” of offense and, thus, this descriptive language in indictment should

not be considered at first step of lesser-included offense analysis).

The second step of the analysis asks whether there is evidence that supports

giving the lesser-included offense instruction to the jury. Hall, 225 S.W.3d at 536.

The Court of Criminal Appeals has held that

[a] defendant is entitled to an instruction on a lesser-included offense
where the proof for the offense charged includes the proof necessary
to establish the lesser-included offense and there is some evidence in
the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser-included offense.

Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)); see also

Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009) (stating that “there

must be affirmative evidence to rebut the greater element, and the jury may not

19
simply disbelieve evidence establishing the greater” charged offense to entitle

defendant to lesser-included offense instruction). In this portion of the analysis,

anything more than a scintilla of evidence entitles the defendant to the instruction.

Hall, 225 S.W.3d at 536. The evidence must establish the lesser-included offense

as “a valid, rational alternative to the charged offense.” Id.; Williams v. State, 294

S.W.3d 674, 681 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (stating that

“[t]here must be affirmative evidence in the record raising the lesser offense before

an instruction is warranted”).

The Court of Criminal Appeals has held that the test for determining

whether evidence is legally sufficient and the test for determining whether to

submit a lesser-included offense instruction are “quite different.” Wasylina v.

State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009) (quoting Hampton v. State,

165 S.W.3d 691, 693 (Tex. Crim. App. 2005)). “The evidence could easily be

legally sufficient to support a conviction for a lesser-included offense but not

justify the submission of a lesser-included-offense instruction because the evidence

does not show that the defendant is guilty only of the lesser-included offense.” See

id. at 909–10 (emphasis in original).

The offense of resisting arrest contains “several elements that are not

functionally the same or less than those required to prove the charged offense” of

assault on a public servant. See Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.—

20
Beaumont 2001, pet. ref’d). First, the offense of assault on a public servant

“includes a reckless mental state whereas resisting arrest proscribes only

intentional conduct.” Id. The assault offense requires the infliction of bodily

injury upon the public servant “whereas resisting arrest may occur with no injury at

all to the peace officer involved.” Id. And finally, resisting arrest

requires proof that the peace officer be in the process of effecting an
arrest, search, or transportation of the actor when the actor uses
“force” to “prevent or obstruct” the attempted conduct; in contrast, the
assault offense requires the public servant be “lawfully discharging an
official duty,” which may or may not involve an arrest.

Id.; see also Dunklin v. State, 194 S.W.3d 14, 22 (Tex. App.—Tyler 2006, no pet.)

(noting that resisting arrest requires proof that defendant prevented or obstructed

peace officer from effecting arrest, which is element not required for assault on

public servant).

Nevertheless, appellant argues that, under the circumstances of this case, the

offense under section 38.03 constituted a lesser-included offense of the offense

charged under section 22.01. Appellant argues on appeal that, while it was clear

that Officers Cisneros and Owens both suffered injuries during the incident, a

rational jury could have concluded that appellant was guilty only of resisting arrest,

that the officers’ injuries were “merely incidental,” and that appellant “should not

be found guilty of those unintentional injuries.” He thus argues that the jury could

have found that he did not have the mens rea necessary for the offense of assault

21
on a public servant, but only for resisting arrest. He points out that the undisputed

testimony reflects that he began physically struggling with Officers Cisneros and

Owens when they attempted to move him to a different holding cell and that,

during the struggle, he caused bodily injury to both officers; specifically, he

scratched both of their arms with his fingernails.

Although the officers involved testified to their injuries, and the trial court

admitted photographs depicting their injuries, appellant attempts to cast his actions

solely as “resisting transport.” However, he points to no evidence in the record

supporting his contention that if he was guilty, he was guilty only of resisting arrest

instead of assault on a public servant because the officers’ injuries were incidental

rather than the result of appellant’s intentional acts. See Wasylina, 275 S.W.3d at

909–10; Hall, 225 S.W.3d at 536. Nor could he point to such evidence under the

circumstances of this case because the proof required to show that he was guilty of

resisting arrest is essentially different from the proof required to show assault on a

public servant. To prove assault on a public servant, the State had to show that

appellant, in fact, injured the officers and that he did so at least recklessly. By

finding him guilty, the jury found that he did injure the officers at least recklessly,

and the evidence supports that finding. Whether appellant was resisting arrest

when he inflicted injury on them is irrelevant to proof of the offense of assault on a

22
public servant. The jury needed only to find that the officers were performing an

official duty, namely, transporting appellant, not that appellant was resisting arrest.

The Court of Criminal Appeals addressed a factually analogous situation in

Lofton v. State. 45 S.W.3d 649 (Tex. Crim. App. 2001). In Lofton, officers

responded to a domestic disturbance call at a residence. Id. at 650. After speaking

with the complainant and Lofton, the officers decided to arrest Lofton for assault.

Id. When one of the officers attempted to arrest him, Lofton “slapped [the

officer’s] hands away.” Id. The officer again attempted to restrain Lofton, and

Lofton “struck [Officer] Munoz twice in the face.” Id. The officer testified that he

suffered pain and a cut on his face after Lofton struck him. Id. at 650–51.

On appeal, the Austin Court of Appeals reversed Lofton’s conviction,

holding that “the jury could have rationally believed that [Lofton] intended to

obstruct the arrest and the force he used was incident to that intent” and that Lofton

was therefore entitled to an instruction on the lesser-included offense of resisting

arrest. Id. at 651 (quoting Lofton v. State, 6 S.W.3d 796, 800 (Tex. App.—Austin

1999)). The Court of Criminal Appeals disagreed, noting that Lofton “struck a

police officer twice in the face during the officer’s attempt to arrest [him], causing

the officer to suffer pain and a cut on his face.” Id. at 652. The court further noted

that “[e]ven if [Lofton] had intended only to prevent his arrest, the force used by

[Lofton] against [Officer] Munoz, at the very least, recklessly caused Munoz to

23
suffer a bodily injury.” Id. The Court of Criminal Appeals thus concluded that

“[r]egardless of [Lofton’s] intent, the State proved that [Lofton] assaulted Munoz.

Resisting arrest was not a rational alternative to assault on a public servant in the

instant case.” Id.; see also Ortega v. State, 207 S.W.3d 911, 918 (Tex. App.—

Corpus Christi 2006, no pet.) (holding that trial court did not err in refusing lesser-

included-offense instruction on resisting arrest when “[t]he evidence show[ed] that

appellant struck the arresting officer in the chest and face using his fists”); Oiler v.

State, 77 S.W.3d 849, 852 (Tex. App.—Corpus Christi 2002, pet. ref’d)

(“[A]ppellant used force to prevent the police officers from effecting his arrest,

kicking one of the officers in the process. The officer testified he was injured

when appellant kicked him. Under the holding in Lofton, we now hold that

appellant was not entitled to a lesser-included offense instruction [on resisting

arrest].”).

Likewise, in Gumpert v. State, there was “evidence that Gumpert’s intent

was to resist arrest, but other evidence showing that in the course of resisting arrest

Gumpert kicked [Officer] Reese.” 48 S.W.3d 450, 454 (Tex. App.—Texarkana

2001, pet. ref’d). The court of appeals observed, “This evidence showed that

Gumpert recklessly caused bodily injury in disregarding the substantial

nonjustifiable risk that his struggling, flailing about, and kicking could result in

bodily injury to Reese and that bodily injury in fact resulted.” Id. The court

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concluded, “Following the guidelines of the Texas Court of Criminal Appeals [in

Lofton], resisting arrest was not a rational alternative to assault on a public servant

in the present case, and the trial court was correct to refuse the requested

instruction for resisting arrest” as a lesser-included offense of assault on a public

servant. Id.

Here, appellant argues that he “resisted efforts to handcuff and transport him

to a different cell.” But even if he intended only to resist transport, as he contends,

the evidence is sufficient for a jury reasonably to have determined that by

physically struggling with the officers during the process of resisting transport—

including biting and scratching the officers—he, at the least, recklessly caused the

officers’ injuries. See Lofton, 45 S.W.3d at 652. Thus, in resisting arrest, appellant

also assaulted two public servants. Appellant has therefore failed to present

evidence that if he was guilty, he was guilty only of resisting arrest. See Wasylina,

275 S.W.3d at 909–10; Hall, 225 S.W.3d at 536.

Therefore, under the facts of this case, resisting arrest was not “a valid,

rational alternative to the charged offense,” as required for a lesser-included

offense. See Hall, 225 S.W.3d at 536; Lofton, 45 S.W.3d at 652; Gumpert, 48

S.W.3d at 454. We hold that the trial court did not abuse its discretion by refusing

appellant’s requested lesser-included offense instruction.

We overrule appellant’s first issue.

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 C. Denial of Self-Defense Instruction

When a defensive theory is raised by the evidence from any source, the

theory must be submitted to the jury. See Brown v. State, 955 S.W.2d 276, 279

(Tex. Crim. App. 1997). If the defense is supported by the evidence, the defendant

is entitled to an instruction on that defense, regardless of whether the supporting

evidence is strong, feeble, unimpeached, or contradicted, and even when the trial

court is of the opinion that the supporting evidence is not credible. See Shaw v.

State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007); see also Walters v. State, 247

S.W.3d 204, 209 (Tex. Crim. App. 2007) (holding same). We review a trial

court’s decision not to include an instruction on a defensive issue in the charge for

an abuse of discretion, and we view the evidence in the light most favorable to the

defendant’s requested submission. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex.

Crim. App. 2006); Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d).

Penal Code section 9.31(c) provides:

The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace
officer . . . uses or attempts to use greater force
than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably
believes the force is immediately necessary to
protect himself against the peace officer’s . . . use
or attempted use of greater force than necessary.

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TEX. PENAL CODE ANN. § 9.31(c) (Vernon 2011). Under section 9.31(c), “a

defendant must show greater force than necessary on the part of the police officer

before the justification of self-defense is applicable.” Porteous v. State, 259

S.W.3d 741, 748 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d). Thus, to be

entitled to an instruction pursuant to section 9.31(c), “there must be some evidence

in the record to raise the issue of whether the peace officer used or attempted to use

greater force than necessary in attempting to arrest or search the defendant.” Id.

As a threshold issue, the State argues that appellant is not entitled to a self-

defense instruction under section 9.31(c) because that section, by its plain

language, applies to the use of force to “resist an arrest or search,” not to resist a

“transport,” as appellant claims, and appellant had already been arrested at the time

of the incident at issue. We agree with the State.

In Ward v. State, the Waco Court of Appeals addressed a similar argument.

See 143 S.W.3d 271 (Tex. App.—Waco 2004, pet. ref’d). A jury convicted Ward

of assaulting a sheriff’s deputy who had been attempting to move him from one

cell to another within the jail. Id. at 272. In the charge, the trial court included an

instruction on the general law of self-defense under section 9.31(a), but it did not

include an instruction specifically pursuant to section 9.31(c), concerning the use

of force to resist an arrest or search. Id. at 273. On appeal, Ward argued that he

was entitled to an instruction under section 9.31(c) “because the deputy’s attempt

27
to remove him from the jail cell constitutes an ‘arrest.’” Id. The Waco court

considered the definition of “arrest” contained in Code of Criminal Procedure

article 15.22: “A person is arrested when he has been actually placed under

restraint or taken into custody by an officer or person executing a warrant of arrest,

or by an officer or person arresting without a warrant.” Id. (quoting TEX. CODE

CRIM. PROC. ANN. art. 15.22). The court then stated, “Under the plain language of

this statute, a person is arrested when an officer takes custody of the person

pursuant to an arrest warrant or pursuant to a warrantless arrest.” Id. The court

concluded that “[t]his definition on its face does not apply to a jail inmate being

transferred from one cell to another” and overruled Ward’s contention that he was

entitled to an instruction under section 9.31(c). Id.

We find the reasoning of the Waco court in Ward persuasive. The plain

language of section 9.31(c) addresses the use of force by a defendant only to “resist

an arrest or search.” TEX. PENAL CODE ANN. § 9.31(c). The statute does not state

that the use of force to resist “transport” or another police action is justified.

Section 9.31(c), by its terms, is limited to instances in which the defendant uses

force to resist “arrest or search.” See Porteous, 259 S.W.3d at 747 (“[T]he right to

use self-defense against a police officer who is attempting to effect an arrest is

limited.”). At the time of the incident at issue in this case, appellant had already

been arrested and confined in the Texas City Jail. Moving him from one holding

28
cell within the Texas City Jail to another does not constitute an “arrest.” See Ward,

143 S.W.3d at 273; see also TEX. CODE CRIM. PROC. ANN. art. 15.22 (Vernon

2015) (“A person is arrested when he has been actually placed under restraint or

taken into custody by an officer . . . .”). We therefore hold that section 9.31(c) is

not applicable to this case.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).

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