IN THE
TENTH COURT OF APPEALS
No. 10-15-00067-CR
CHRISTOPHER DAVID HARVEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2013-840-C1
MEMORANDUM OPINION
In two issues, appellant, Christopher David Harvey, challenges his conviction for
assault of a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014).
Specifically, Harvey challenges the sufficiency of the evidence supporting his conviction
and argues that the State committed reversible error by repeatedly stating that he is a
“rapist” during the punishment phase of trial. Because we conclude that the evidence is
sufficient to support Harvey’s conviction, and because Harvey waived his complaint
about the State’s argument during the punishment phase, we affirm.
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, Harvey contends that the evidence supporting his conviction is
insufficient because the testimony at trial failed to show that the officer’s injury was
caused by his conduct. We disagree.
A. Standard of Review & Applicable Law
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,
Harvey v. State Page 2
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder
is entitled to judge the credibility of the witnesses and can choose to believe all, some, or
none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
B. Facts
On the evening of April 9, 2013, McLennan County Deputy Sheriff Rebecca Mabry
and her partner, Deputy Brent Ewing, attempted to serve a felony warrant on Harvey.
They first went to Harvey’s home address, but he was not there. The deputies then
received information that Harvey likely was at the residence of Rebekah Rosario. The
deputies proceeded to Rosario’s residence. After obtaining Rosario’s consent to search
the residence, the deputies found Harvey inside sitting on a couch. At this point, one of
Harvey v. State Page 3
the deputies told Harvey to stand up, turn around, and put his hands behind his back
because he was under arrest. As the deputies attempted to handcuff him, Harvey
decided to run. Deputy Mabry described the scene as follows:
He changed his mind and decided he was gonna [sic] run—
...
--before I could get the cuff on.
...
He quickly kind of elbowed me, and when he did I tried to hold tighter. So
then it kind of got into a struggle and he pushed me against the door frame.
We were by the door so he pushed me against the door frame and I fell, and
then that’s when he got free and he bolted.
When asked what happened when the deputies tried to handcuff Harvey, Deputy Ewing
corroborated Deputy Mabry’s testimony by stating the following:
At that point in time he started to spin around. I felt him start to move, and
I had him kind of by fingers in a hold like this to try to cuff him. And as he
started to move around he hit Deputy Mabry with his shoulder. . . . That
knocked her to the ground.
....
Yeah, he would have had to do that intentionally, ‘cause that’s the
only way he could have made the escape that he was doing from the house.
Later, Deputy Mabry discovered that the fall had caused a minor scrape on her
knee that she described as “painful.” Deputy Ewing testified that he did not observe a
scrape on Deputy Mabry’s knee prior to the incident and that he believed that the scrape
was a result of the altercation with Harvey.
Harvey v. State Page 4
Thereafter, Harvey called Rosario to testify on his behalf. Appearing in jail
clothing and admitting that she was serving time for drug possession, Rosario testified
that she had a good view of the incident and that Harvey leapt past the deputies and ran
away.1 According to Rosario, Harvey “did not have any contact with anybody. He
literally just kind of left out the front door, and he didn’t even run down the steps. He
jumped off the steps.”
C. Discussion
On appeal, Harvey asserts that the trial testimony failed to show that Deputy
Mabry’s injury was caused by his conduct. The Texas Court of Criminal Appeals has
broadly interpreted the definition of bodily injury to include “even relatively minor
physical contacts so long as they constitute more than mere offensive touching.” Lane v.
State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Moreover, it is important to note that
Harvey was charged by indictment with assault against a public servant, see TEX. PENAL
CODE ANN. § 22.01(b)(1), and that an assault against a public servant is a result-oriented
offense. Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.); see Johnson
v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). Therefore, the focus is on the result
of the defendant’s action and his culpable mental state, not on the precise act or the nature
1 On cross-examination, Rosario acknowledged that, in addition to drug possession, she had also
engaged in theft by check. Rosario further testified that Harvey comes by often and that he is close with
Rosario’s son. Additionally, Rosario’s statement that she could clearly observe the incident was
undermined by Deputy Ewing, who noted that Rosario’s view was likely obscured from where she was
standing.
Harvey v. State Page 5
of the conduct committed by the defendant. See Johnson, 364 S.W.3d at 298; Brooks, 967
S.W.2d at 950.
Here, Deputy Mabry testified that, in his attempt to flee the deputies, Harvey
pushed her to the floor, which resulted in a scraped knee that was “painful.” See Wingfield
v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (noting that “a jury
may infer that a victim actually felt or suffered physical pain because people of common
intelligence understand pain and some of the natural causes of it” (citing Randolph v. State,
152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.))); see also Wawrykow v. State, 866
S.W.2d 87, 88-89 (Tex. App.—Beaumont 1993, pet. ref’d) (determining that a rational jury
could have inferred that pushes to the chest caused “physical pain”); Goodin v. State, 750
S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (stating that people of
common intelligence understand what naturally causes pain). This testimony is
sufficient for the jury to infer that Deputy Mabry suffered physical pain as a result of
Harvey’s conduct.
Therefore, because the focus of the inquiry is on the result of Harvey’s conduct,
we conclude that the State adduced sufficient evidence to demonstrate that Harvey
knowingly or intentionally caused bodily injury to Deputy Mabry’s knee. See TEX. PENAL
CODE ANN. § 22.01(b)(1); Johnson, 364 S.W.3d at 298; Brooks, 967 S.W.2d at 950; see also
Lucio, 351 S.W.3d at 894. Accordingly, we overrule Harvey’s first issue.
Harvey v. State Page 6
II. THE STATE’S PUNISHMENT ARGUMENT
In his second issue, Harvey asserts that the State committed reversible error by
repeatedly stating to the jury during the punishment phase of trial that he had raped a
sixteen-year-old girl.
During the punishment phase of trial, the State introduced evidence of Harvey’s
prior criminal convictions—one of which was for second-degree-felony sexual assault.
At various times during argument, the State referred to Harvey as a “rapist” or as
someone who “raped a 16-year-old.” However, Harvey did not object to any of these
instances.
Texas courts have held that a “defendant’s failure to object to a jury argument or
a defendant’s failure to pursue to an adverse ruling his objection to a jury argument
forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d
73, 89 (Tex. Crim. App. 1996); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010)
(“[W]e will not review the propriety of the prosecutor’s arguments, [when] appellant
failed to object to those arguments at trial.”); Morris v. State, 460 S.W.3d 190, 197 (Tex.
App.—Houston [14th Dist.] 2015, no pet.); see also Freeman v. State, No. 11-13-00232-CR,
2015 Tex. App. LEXIS 8515, at *10 (Tex. App.—Eastland Aug. 13, 2015, no pet. h.) (mem.
op., not designated for publication). Therefore, because Harvey failed to object to the
references made in the State’s argument, we conclude that Harvey has forfeited his right
to complain about this issue on appeal. See TEX. R. APP. P. 33.1; Mays, 318 S.W.3d at 394;
Harvey v. State Page 7
Cockrell, 933 S.W.2d at 89; Morris, 460 S.W.3d at 197; see also Freeman, 2015 Tex. App. LEXIS
8515, at *10.
Nevertheless, despite the general rule regarding preservation, Harvey urges this
Court to apply the Almanza egregious-harm standard to jury-argument complaints. See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). This is essentially a
fundamental-error argument, which can be waived by failure to object in the trial court.
See Mays, 318 S.W.3d at 393-94 (concluding that appellant failed to preserve his
complaints about “a series of egregiously improper remarks” by not objecting to those
arguments at trial); Morris, 460 S.W.3d at 197 (“Appellant, however, argues that the jury
argument is incurable fundamental error. Even if the State’s arguments were incurable
and rose to the level that it deprived appellant of his right to due process of law, appellant
waived this complaint by failing to object in the trial court.”); see also Freeman, 2015 Tex.
App. LEXIS 8515, at *10 (“Even if the State’s arguments were incurable and rose to the
level that they deprived Appellant of her right to due process of law, Appellant waived
her complaints by failing to object in the trial court.”). Therefore, we are not persuaded
by Harvey’s argument regarding the application of Almanza. Based on the foregoing, we
overrule Harvey’s second issue.
III. CONCLUSION
Having overruled both of Harvey’s issues on appeal, we affirm the judgment of
the trial court.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 17, 2015
Do not publish
[CRPM]
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