ACCEPTED
01-14-00618-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/27/2015 3:17:41 PM
CHRISTOPHER PRINE
CLERK
In The
Court of Appeals
First District of Te;ras - Houston FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
2/27/2015 3:17:41 PM
CHRISTOPHER A. PRINE
NOS. 01-14-00618-CR Clerk
01-14-00619-CR
DENNIS STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th Judicial District Court
Galveston County, Texas
Honorable Lonnie Cox, Judge Presiding
Trial Court Cause Nos. 13CR3049 & 13CR3050
APPELLANT'S BRIEF
DANIELLAZARINE
TBN: 24073197
THE LAIY OFFICE OF DANIEL LAZARINE
440 Louisiana St., Suite 200
Houston, Texas77002
(7t3) 224-4000
(113) 224-2815 (Fax)
ATTORNEY FORAPPELLANT
DENNIS STEELE
ORAL ARGUMENT IS REQUESTED
1LDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P 38.1(a) (2011), the parties to this suit are as
follows:
FOR THE STATE.
At Trial: Elizabeth Cuchens
Kayla Allen
OnAppeal: Rebecca Klaren
Galveston County
Assistant District Attorneys
600 59th Street, Suite 1001
Galveston, Texas 77551
FOR APPELLANT:
At Tfial: James Dennis Smith
4615 Southwest Freeway
Houston, Texas 77027
OnAppeal: Daniel Lazarine
TBN:24013197
440 Louisiana St., Suite 200
I{ouston, Texas77002
TABLE OFCONTENTS
IDENTITY OF PARTIES AND COUNSEL............. ............u
STATEMENT REGARDING ORAL ARGUMENT............................. ..1
ISSUES PRESENTED ............,...3
STATEMENT OF FACTS... .........4
SUMMARY OFTHEARGUMENT...... ..........9
ARGUMENTS AND AUTHORITIES .............11
POINT OF ERROR ONE.. .............11
Argument & Authorities ..............20
r
..................23
Argument & Authorities ..............25
INDEX OFAUTHORITIES
Cases
Almanzav.State,686S.W.2d157(Tex.Crim.App. 1984).................,......19,23
Bignallv.State,887SW.2d2l,23(Tex. Crim.App. 1994)...........................21
Burdenv. State.55 S.W.3d608 (Tex.Crim.App. 2001)... ............24
BuJkinv State,207 S.W.3d 779 (Tex. Crim. App.2006)..............................11
Ex parte Watson, 306 S.W.3d 259 (Tex. Cr'im. App. 2009) (op. on reh'g)..12, 13,17
Ferrel v. State,55 S.W3d 586 (Tex. Crim. App. 2001)...........................11, 20
Guzman v. State, 1 88 S.W.3d 1 85 (Tex. Crim. App. 2006)........................... 1 3
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)....................... 12-1 5, 1 8
Hayes v. State,728 S.W.2d 804 (Tex. Crim. App. 1987).............................20
Hooper v. State,214 S.W3d 9 (Tex. Clim. App. 2007).......... ..25,26
Jacks on v. Virginia, 443 U.S. 307 (197 9). . ... . .
Luckv. State,588 S.W.2d 371 (Tex. CIim. App. 1976)........ ......22
McKinneyv.State,207S.W.3d366(Tex.Crim.App.2006)........................12
Millerv.State,ST5 S.W.2d582(Tex.Crirn.App. 1991)..............................21
Ortega v. State, 1 71 S.W3d 895 (Tex. Crim. App. 2005)......................... 13, l4
Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000).......... .....................23
Porteous v. State,259 S.W.3d 741 (Tex. App.-Houston [1st Dist.] 2007)...21,22
Reedv.State,703 S.W.2d380(Tex.App.-Dallas1986,pet.ref'd)...............18
Rice v. Stare,333 S.W.3d 140 (Tex. Crim.App. 201i).......... .........21
Richardsonv. State,879 S.W.2d 874 (Tex. Crirn. App. 1993).................25,27
Segundo v. State,270 S.W.3d 79 (Tex. Clim. App. 2008)..........................13
Smith v. State,676 S.W.2d 584 (Tex. Crim. App. 1984).. ........21
Templev.State,390S.W.3d341(Tex.Crim.App.2013)... ........24
Tievino v. State,100 S.W.3d 233 (Tex. Crirn. App. 2003) (per curiurn)..........23
Vasquezv. State,389 S.W3d 36I (Tex. C[im. App. 2012).........,................11
Rules
TEX. CODE. CRIM. PROC. ANN.arl. 37.09 (West 2006).....................11, 15
TEX. PEN. CODEANN. Sec. 38.03 (Vernon 2003).......... ..15, 16
TEX. PEN. CODE ANN. 9.31(c) (Vernon 2003). . ..................21
STATEMENT REGARDING ORAL ARGI]MENT
Pursuant to Texas Rule ofAppellate Procedure 39.7, Appellant hereby
requests oral argument. Counsei is of the opinion that olal argument would serve to
ernphasize and clalify the important legal points regarding this appeal.
STATEMENTOFTHD CASE
This appeal is from two convictions for Assault on a Public Servant, in
which the Appellant received fifty (50) years confinement in the Texas Deparlment
of Crirninal Justice - Institutional Division. Appellant was indicted for Assault on a
Public Servant on December 3,2013. Trial was had in the 56th District Court, The
Honorable Lonnie Cox, Judge Presiding.
The jury found Appellant guilty of both counts of Assauit on a Public
Servant. Following punishment evidence, the jury assessed Appellant's sentences
at fifty (50) years.
A Motion for New Trial was filed on July 16, 2014 and ovemuled by the
Court on September 23,2014. Notice of Appeal was filed June 18,2014, and this
brief follows.
2
ISSUES PRESENTED
POINT OF ERROR ONE:
THE TRIAL COURTABUSED ITS DISCRETION BYDENYING COLTNSEL'S
REQUEST FOR A JURY CHARGE INSTRUCTION ON TI{E LESSER
INCLUDED OFFENSE OF RESISTING ARREST
POINT OF ERROR TWO:
TFIE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COUNSEL'S
REQUEST FOR A JURY CHARGE INSTRUCTION ON SELF DEFENSE
POINT OF ERROR THREE:
THE EVIDENCE IS INSUFFICIENT TO PROVE THATAPPELLANT
ASSAUI]TED E. CISNEROS
3
STATEMENT OF FACTS
On November 6, 2013 , at the 2200 block of 13th Avenue, in Texas City,
Texas, a project supetintendent and his crew worked on a public street and
drainage system repair project. 3 RR 141. At around 5;15 p.m., Mr. Gonzalez, the
project lead, observed a vehicle drive through a balricade and crash into a large
pile of dirt. 3 RR 142. Soon thereafter, Mr. Gonzalez watched this vehicle burst
into flames. 3 RR 144. He and several coworkers irnmediately rushed over to the
vehicle and rernoved the driver from the burning car. 3 RR 145. Residents from
across the street called 9- 1- 1 . 3 RR 146. Officers with the Texas City Police
Deparlment and representatives of the Texas City Fire Department anived shortly
thereafter. 1d. Appellant was identified as the driver of this vel.ricle. 3 RR 158
Appellant was unable to stand on his own, smelled like alcohol and generally
appeared to be intoxicated. 3 RR 146-48. Appellant was taken into custody and
transported to the Texas City Jail. 3 RR 159. Officer Berg testified that he detained
Appellant for a driving while intoxicated (DWI) investigation. 1d.
Officer Berg elected to conduct this DWI investigation at the police station
rather than at the scene ofthe crash. 3 RR 166-67. Upon arliving at the police
station, jail staff noticed that Appellant appeared to be intoxicated. 3 RR 236.
Officer Berg escorted Appellant directly to the room designated for DWI
investigations. 3 RR 166-67. This room was purposed specifically for DWI
investigations, and it contained relevant paperwork and an Intoxilyzer for breath
4
tests. /d. Officer Berg administered a battery of standardized field sobriety tests,
formaliy amested Appellant, and then asked Appellant to give a specirnen of his
breath. Id.;3 RR 177-83. Appellant agreed to do so, and the breath test result was
0.223/0.208 - nearly tll'ee time the legal lirnit. 3 RR 175.
At the conclusion of the DWI investigation, Offlrcer Berg escorted Appellant
to one of several booking cells. 3 RR 170; 3 RR 237. Testimony revealed that at
the Texas City Jail, there are numerous jail cells. 3 RR 237. Near the booking area,
there are two booking cells which are used to temporarily hold inmates while they
are booked in or out of the jail, and for transpolt to Galveston County Jail. 3 RR
237 -39. These empty cells are around 8 feet by 8 feet and contain no bed or toilet.
3 RR 164; 184. During the "booking" process, jail staff members issue shoes to the
inmates, receive their propefty for safekeeping, and review with the inmate a list of
intake questions. 3 RR 196. There are also general jail cells which are used to hold
inmates after they have been "booked in." 3 RR 237.Finally, there is also a
sobriety room - affectionately referred to as the "drunk tank" - which is a large
room designed for inmates who law enforcement believe to be intoxicated. 3 RR
254; 218-19 . This room is suitable for such a purpose because it is devoid of all
potentially injurious objects, featuring only a toilet. 3 RR 85, 184; 218-19. Officer
Berg testified that even after his DWI investigation revealed that Appellant was
nearly three time the legal limit, he did not place Appellant into the drunk tank. 3
RR 170; 175. Rather, he placedAppellant into a regular booking cell. 3 RR 170.
5
Testimony at trial detailed that intoxicated persons are generally placed into the
dlunk tank so that they can sober up before they are transported to a generai jail
cell. 3 RR 218-219. Still, Appellant was not transported to the drunk tank. 3 RR
170. Appellant eventually laid down on the ground, in the fetal position, with his
arms and head inside his shirt, and fell asleep. 3 RR 203.
Appellant lay sleeping in the holdover celi for approximately thirty minutes
before Jailer Stephania Jackson elected to tanspoft him to another ceil. 3 RR 225
Jackson testified that her uniform consisted of a dark shirt - she did not wear a
police officer's uniform because she was not a peace officer and herjailer uniform
had not yet been delivered. 3 RR 216. Testimony was that Jailer Jackson elected to
transport Appellant because she needed to use that particular holdover cell to
prepare for an inmate transfer to the Gaiveston County Jail, located in Galveston,
Texas. 3 RR 239. Jailel Jackson testified that when preparing for a transfer of
inmates to the county jail, they place male and female inmates into separate
holdover cells. 3 RR 217. Jackson testified that the other holdover cell was dirty.
Id. There was also testimony that Appellant had urinated on himself at some point
after his arrest, leaving the sanitation in that parlicular holdover cell in question as
well. 3 RR 273.
When Jackson initially approached Appellant to awaken him, Appellant
offered a verbal response but did not comply. 3 F...P.224. Appellant was asleep. Id.
I{aving made the decision that Appellant nevertheiess needed to be transferred into
f)
a different cell, Jackson called for another officer to assist her. 3 RR 195, 202-04.
Jailer (now Officer) Pierre Owens, Jr. and Officer Cisneros responded to this caii. 3
RR 202-04. Owens was also a jailer at that time. 3 RR 234-35. Owens and
Cisneros testified that they approached Appellant and requested that he voluntarily
get up and move to a different cell. 3 RR 242. Appellant did not getup. Id. Owens
and Cisneros testified that they inforrned Appellant that if he did not do as they
commanded. Appellant would be "escorted" to a different cell. 3 RR 243.
Appellant did not get up. Id. Cisneros and Owens then approached Appellant and
each grabbed one of his arms in order to life him up and transport him. .Id. At this
time, Appellant began resisting, and a struggle broke out between the officers and
Appellant. 3 RR262-64;4 RR 15, 18. Testimony revealed that the officers
employed various techniques to subdue Appellant in order to transpofi him to a
different cell. Specifically, Owens and Cisneros took Appellant to the ground, then
piied on top of him, using their combined body weight to pin Appellant in the
corder ofthe holdover cell. 3 RR 251; 4 RR 41-44,51. Testimony revealed that
during this ruckus, Owens got scratched. 3 RR 246. Cisneros testified that in the
struggle, Appellant kicked, hit, bit, and scratched hirn. 4 RR 25.
Corporal Moreno responded to Jailer Jackson's call for additional help. 3 RR
210. Moreno arrived at the jail, entered immediately, and elected to use his taser,
dry stunning and tasing Appellant numerous tirnes. 4 RR 18- 19. As a result,
Appellant stopped resisting and was left alone in the same holdover cell. 3 RR 265.
7
Appellant later cornplied with the requested hansport to the drunk tank. 3 RR
172-73.
Cisneros and Owens were transpofted to a local hospital. 3 RR 248; 4 RR
19. Evidence showed that Owens suffered several scratches to his ann. 3 RR 272.
Evidence showed that Cisneros suffered several scratches to his arm which drew
blood. 4 RR 19-24.
o
SUMMARY OF THE ARGUMENT
Appellant made a timely objection to the court's charge at the close of
evidence because the proposed july charge did not contain the lessel inciuded
offense of Resisting Affest, Search, or Transport. Appellant specifically requested
this instluction but the trial court denied his request, thereby abusing its discletion.
After analyzing the statutory elements of Assault on a Public Servant and Resisting
Arrest, Search, or Transpoft, and examining the specific allegations of the
indictments, this court should find that Resisting Arrest, Search, or Transporl rs a
lesser included offense in this case. Because the evidence at trial revealed that
Appellant resisted transport while in custody as an officer and jailer were
transporting him from one cell to anotheq the State's witnesses described this
incident as resisting transpoft, and because the injuries could have been incidental,
a rational jury could have concluded that Appellant was guilty of Resisting Arrest,
Search, or Transporl only. Thus, the trial couft abused its discretion when it denied
Appeliant's request that the jury be charged on this lesser included offense.
Appellant also requested that the courl's charge at the close of evidence
include an instruction on the law of self defense. Yet, the trial court denied this
request and submitted a charge that omitted this instruction. At tlial, there was
testimony that the officers attempted to transport Appellant from one jail cell to
another cell by choice and then, because Appellant did not wake up and stand up
immediately, the ofhcers grabbed him by both arms and abruptly pulled him up off
o
the ground. Because Appellant didn't cooperate, the officers slammed Appellant to
the ground and piled on top of him. One offrcer applied the pressure of his body
weight to Appellant while another officer held Appellant's head back by his chin.
Because there was some evidence that the police used excessive force in the
recold, the trial court should have charged the jury on self defense.
The evidence at trial is insuffrcient to sustain Appellant's conviction for
Assault on a Public Servant on "E. Cisneros" because the "Officer Cisneros" who
testified at tlial never identified himself as "E." Cisneros or by any first name that
begins with the letter "E." Nor did Cisneros state that he was the person named in
the indictment or the complainant in the case. Despite some evidence that could
lead a jury to speculate that this person who testified was the same person named
in the indictment, the evidence is legaliy insufficient to do so.
10
ARGUMENTS AND AUTHORITIES
POINT OF ERROR ONE
THE TRIAL COURTABUSED ITS DISCRETION IN DENYING COUNSEL'S
REQUEST FOR A JURY CHARGE INSTRUCTION ON THE LESSER
INCLUDED OFFENSE OF RESISTING ARREST
Standard of Review
At the conclusion of the evidence, it is the courl's duty to charge the jury
with respect to the applicable law, legal definitions, and legal principles. Vasquez u
State,389 S.W.3d 361,367-68 (Tex. Crim. App. 2012). Intermediate courts should
not apply the usual rule of appellate deference to trial court rulings when reviewing
a trial court's decision to deny a requested defensive jury instruction. Buftin v
State,207 S.W.3d 779,782 (Tex. Crim. App. 2006). On the contrary, appellate
coufts must view the evidence in the light most favorable to the defendant's
requested instruction. See Ferrelv. State,55 S.W.3d 586, 591 (Tex. Crim. App.
2001).
Argument & Authorities
The Legislature has specified when an offense is a lesser-inciuded offense.
SeeTEX. CODE CRIM. PROC. ANN. anr. 37.09 (West 2006). Specifrcally, an
offense is a lesser included offense if:
l) it is established by proofofthe same or iess than all the facts required to
establish the commission of the offense charged;
11
2) it differs fi'om the offense charged only in the respect that a less setious
injury or risk of injury to the same person, propefty, or public interest
suffices to establish its comrnission;
3) it diffbrs frorn 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 cornmit the offense charged or an otherwise
included offense.
1d. Expounding upon this statute, the Court of Criminal Appeals has announced
that intermediate courts should use a two-pronged test to determine whether a
charge on a lesser- included should be given: (l) Is the requested charge a lesser-
included offense ofthe charged offense?; and (2) Is there trial evidence that
suppofts giving the instruction to the jury?. Rice v. State,333 S.W3d 140, 144
(Tex. Crim. App. 2011); McKinneyv. State,207 S.W.3d 366,370 (Tex. Crim. App.
2006)
\n Hall v. State, the Courl of Criminal Appeals announced that the first step
in this analysis is to detelmine whether the lesser included offense is included
within the proof necessary to establish the offense charged. Hall v. State.225 S.W.
3d 524, 53 1 (Tex. Crim. App. 2007). This step involves a question of law. 1d. In
Hall, the Courl of Criminal Appeals adopted the "cognate-pleadings approach" for
the first step of the analysis. Id. at 535. This approach was reaffirmed in Ex parte
Watson, where the couft wrote:
an offense is a lesser included offense of another offense . . . . if the
indictrnent for the greater inclusive offense either': 1) alleges all of the
elements of the lesser included offense or 2) alleges elements plus facts
12
(including descliptive avements, such as non-statutory lnanner and means,
that are alleged for purposes ofproviding notice) from which all ofthe
elements of the lesser-inciuded offense may be deduced.
Watson,306 S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g).
The second step of the analysis asks whether there is some evidence in the
record which would permit a jury to rationally find that, if the defendant is guilty,
he is guilty only of the lesser-included offense. Guzman v. State, 188 S.W3d 185
(Tex. Crim. App. 2006); Hall,225 S.W.3d at 536. Courts should ask whether the
lesser-included offense is "a valid, rational alternative to the charged offense." Hall
at 536; See also Segundo v. State,270 S.W.3d 79,90-91 (Tex. Crim. App. 2008).
Appellant made a timely objection to the court's charge and requested an
instruction on the lesser included offense of Resisting Anest, Sealch, or Transport
4 RR 63-66. Thus, error is properly preserved for review.
Standard Used at Trial
In response to Appellant's objection to the court's charge and request for
inclusion ofthe lesser included offense of Resisting Arrest, Search, ol Transport,
the trial court analyzed whether the jury should be charged with the lesser-included
offense of Resisting Arrest, Search, or Transport. Id. Here, to contradict Appellant's
request for a lesser included inshuction on Resisting Arrest, Search, or Transport,
the State cited to Ortega v. State,171 S.W.3d 895 (Tex. Crim. App. 2005) and
argued that Resisting Arrest, Search, or Transport is not a lesser-included offense
of Assault on a Public Servant because the two charges did not meet the
13
Blockburger test for analyzingclairns of Double Jeopardy. 4 RR 64. The trial court
denied Appeliant's request. 4 RR 66.
Although Ortega does stand for the proposition that Assault on a Public
Servant and Resisting Arrest are separate offense for Double Jeopardy purposes,
the reviewing court in this case should determine whether the requested lesser
included offense should have been submitted to the.jury within the framework of
the cases and statute cited above.
Elements of Assault on a Publ ic Selvant and Resistins Arrest
The first step in the analysis is to decide whether Resisting Arrest is a lesser
included offense ofAssault Public Servant as charged. As specified above, this is a
question of law, and the court should consider the statutory elements ofAssault on
a Public Servant and factual allegations as laid out in the indictment and then
compare them to the elements of Resisting Arrest to determine whether the lesser
included offense is within the ptoof necessary to establish the offense charged. ,See
Hall at 531. In the indictments, the State alleged the following:
1) Appellant
2) Intentionally, knowingly, or recklessly
3) Caused bodily injury to [E. Cisneros / P. Owens]
4) by hitting with his hand, kicking with his foot or leg, scratching or cutting
with his fingernail, or biting with his teeth
5) Appeliant did know that [E,. Cisneros / P. Owens] was a public servant, to-
wit: a [peace officer / employee]
6) [E. Cisneros / P. Owens] was lawfully discharging an ofhcial duty, to-
wit: attempting to restrain or control Appellant
14
I CR 6; II CR 51. The elernents of ResistingArrest, Seal'ch, or Transport are as
follows:
l) Appellant
2) Intentionally
3) Prevents or obstructs
4) Someone he knows is a peace officer or a person acting in a peace
officer's presence and at his direction
5) from effecting an arrest, search, or transportation of the actor
6) by using force against the peace officel or another
TEX. PENAL CoDE sEC. 38.03 (West 1994). Thus, the question is whether the
elements of Resisting Arrest, Search, or Transport are established by the proof of
the same or less than all the facts required to establish the offense ofAssault on a
Public Servant as modihed by the indictments. See TEX. CoDE CRIM. PRoc. ART.
37 .09(l) (West 1974); Hall,225 S.W3d at 524
The facts required to pl'ove the lesser offense of Resisting Arrest, Search, or
Transport include several that match up perfectly and a few that do not, but still, in
the end, the court should find that Resisting Arrest, Search, or Transpott is indeed a
lesser included offense ofAssault on a Public Servant in this case.
First, regarding those elements that match up perfectly, each offense requires
proof that Appellant was the person involved, that the aggrieved party is someone
that Appellant knew to be a peace officer or another person that was in the
presence ofand acting at the direction ofa peace offrcer. These elements match up
vely easily and are not a source of fi'iction in this analysis
t I CR refers to the Clerk's Record in 13CR3049 and ll CR refers to the Clerk's Record in
13cR3050.
15
Second, regarding those elements that do not, upon first glance, match up
perfectly. To begin with, the mental state alleged in the indictment includes
"intentionally, knowingly, or recklessly" whereas Resisting Arrest, Search, or
Transport requires an intentional act. I CR 6; II CR 5; Tex. PcNRL CooE sEc
38.03 (West 1994). Although Assault on a Public Selvant allows for less culpable
mental states than the offense of Resisting Arrest, Search, or TranspoIt, there is
clear overlap in that the elements ofeach offense include an intentional act. Thus,
for this element, the analysis should proceed to the second step, where the court
will find an abundance oftrial evidence supporting an intentional act from the
testimony and exhibits.
Next, with regard to the degree of force used, the indictrnent requires proof
of bodily injury to a peace officer where the lesser offense of Resisting Arrest,
Search, or Transport requires proofthat the person accused used force to prevent or
obstruct the officer. Id. Here, each offense requiles a degree of force used against
an officer or one acting in his presence and at his direction. It seems that the
difference lies in the specific amount of force - with Resisting Arrest, Search, or
Transport requiring less force that Assault; the inquiry circles around the degree of
force that causes bodily injury (where a mere claim of "pain" by the aggrieved
party is legally sufficient) versus the degree of force that, at the very least, prevents
or obstructs an officer from effecting an arrest, search, or transpolt. Both offenses
clearly require physical force used against a peace officer, with Resisting Arrest,
16
Search, or Transport requiring a lesser degree of folce than Assault, and therefore,
this elernent of Resisting Arrest, Search, or Transporl is within the proof required
for Assault on a Public Servant.
Finally, regarding the specific actions taken by the officer, the indictment
requires proof that Appellant used folce (and caused "pain") against an officer
while he was lawfully discharging an official duty, specificaily, attempting to
restrain or control Appellant whereas the lesser offense of Resisting Arrest, Search,
or Transporl requires proofthat Appellant used force to prevent or obstruct the
officer from effecting an arrest, search, or transportation of Appellant. These two
legal concepts do not align perfectly. Thus, the question becomes whether this
element can be deduced from the factual allegations in the indictrnent. Watson,306
S.W3d 259. Appellant urges that this element may be deduced from the specific
allegations in the indictment. The indictments include clairns that the assault
occurred while the officers were lawfully discharging offrcial duties, specifically,
attempts to restrain and control Appellant. It is certainly leasonable and rational to
deduce that when Cisneros and Owens were restraining and controlling Appellant,
he was subject to either arrest, search, or transport. Further, arrest, search, and
transport are official duties of any peace officer, and go hand-in-hand with official
duties to restrain and control any individual that is subject to arrest, search, or
transport.
17
In the second step of the analysis, we must ask whether there was evidence
at trial that suppol'ts giving the instluction to the jury. ln other words, is Resisting
Arrest, Search, or Transport "a valid, rational alternative to the charged offense."
Hall,225 S.W.3d at 536.
There is an abundance oftrial evidence that supports giving this instruction
to the jury. Jackson, Owens, and Cisneros all testified that Appellant's acts were
intentional, that Appellant used force against Cisneros and Owens, that they were
trying to handcuff Appellant for the specific reason that they wanted to transpoft
him, and it is clear from the State's Exhibit 2 and the testimony that Appellant's
efforts to resist transport prevented and/or obstructed the officers as they tried to
tanspoft him. Jackson testified that, when Cisnelos and Owens attempted to
transport Appellant within the jail, he did not cooperate and resisting being
transported. 3 RR 225. Owens testified that Appellant refused to cooperate as they
tried to move him, resisting their efforts to hanspoft him. 3 RR 259-60. Owens
further stated that he believed Appellant intentionally resisted transpoft. Id.Then
Cisneros specifically stated that Appellant resisted transpofl and his efforts to
handcuff Appellant. 4 RR 1 5, 4l , 44-47 . Cisnet'os further stated that Appellant was
"struggling and resisting" when Cisneros took him to the floor. 4 RR 15, 42.
For all of the reasons mentioned above, this court should find that the
offense of Resisting Arrest, Search, or Transport is a lesser included offense of
1B
Assault on a Public Servant within the fi'amework olthe controlling caselaw and
statutes.
Harm Analysis
lf properly preserved, jury charge error requires reversal if "some harm" is
shown. Alntanzav. State,686 S.W.2d 157,17l (Tex. Crim. App. 1984, op. on
reh' g). ln Almanza, the Court of Criminal Appeals held that "if the error in the
charge was the subject ofa timely objection in the trial court, then reversal is
required if the error is calculated to inj ure the rights of the defendant, which means
no more than that there must be some harm to the accused from the error. 686 S.W
2d at 171.
Here, Appellant made a timely, specific objection to the inclusion of this
erroneous instruction, and was overruled by the trial couft. 4 RR 63. Appeliant was
clearly harmed by the trial courl's refusal to include an instruction on the lesser
included offense of Resisting Arrest, Search, or Transport. It was clear from all of
the testimony and the exhibits that Appellant lesisted efforts to handcuff and
transport him to a different cell. It was also clear that Cisneros suffered an injury,
and Owens as well. However, a rational jury may have concluded that Appellant
was guilty only of Resisting Arrest, Search, ol Transport, and that the injulies were
merely incidental and that Appellant should not be found guilty of those
unintentional injuries. But the jury was denied the opporlunity to even consider the
offense of Resisting Arrest, Search, or Transport as an option during their
19
deliberations. The State was very quick to remind the jury that they could not
consider "resisting aLrest." 4 RR 72. This certainly harmed Appellant. Because
Appellant suffered sorne hann due to this error and because Appellant objected to
the charge as presented and requested this instruction at the charge conference,
reversal is required. For all ofthese reasons, this cause should be reversed and
remanded for a new trial
POINT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COLT\ISEL'S
REQUEST FOR A JURY CHARGE INSTRUCTION ON SELF DEFENSE
Standard of Review
As stated above, intermediate courts should not apply the usual rule of
appellate defelence when considering a trial courl's decision to deny a requested
defensive jury instruction. Buskin,207 S.W.3d at 782. Instead, appellate courls
must view the evidence in the light most favorable to the defendant's requested
instruction. See Ferrel,55 S.W.3d at 591.
Argument & Authorities
When properly requested, a trial court must instruct the jury on every
defensive theory raised by the evidence, whether such evidence or testimony was
produced by the prosecution or the defense. Hayes v. State,728 S.W.2d 804, 807
(Tex. Crim. App. 1987). This is true regardless of whether such evidence is strong
or weak, un-impeached or contradicted, and regardless of what the trial court may
20
or may not think about the credibility of this evidence. Booth v. State,679 S.W.2d
498, 500 (Tex. Crim. App. 1984). The defendant is not lequired to testifu to larse
the issue of self-defense . Reed v. State, 703 S.W.2d 3 80, 3 84 (Tex. App.-Dallas
1986, pet. ref'd). Self-defense rnay be raised by the testimony of witnesses who
testi$ to the defendant's acts and words at the time of the offense. Id. at384-85
(ciring Smirh v. Srate,676 S.W.2d 584 (Tex. Crim. App. 1984). To be entitled to an
instruction on self defense when resisting an arrest or search that a defendant
knows is being made by a peace officer, there rnust be some evidence in the record
to raise the issue of whether the peace offrcer used or attempted to use greater force
than necessary in attempting to arrest or search the defendant. Porteous v. State,
259 S.W.3d 741,748 (Tex. App.-Houston [1st Dist.] 2007). Anything more than a
scintilla of evidence is sufficient to entitie a defendant to a lesser charge. Bignall t.
State,,887 SW.2d 21, 23 (Tex. Crim. App. 1994).
The Penal Code provides that the use of force to resist an arrest, search or
transport is justified
1) if, before the actor offers any resistance, the peace officer (or person
acting at his direction) uses or attempts to use greater force than necessary to
make the an'est 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 (or other
person's) use or attempted use of greater force than necessary.
TEX. PENAL ConE sEc. 9.31(c) (West 2007)
21
At the charge conference, Appellant very clearly objected to the courl's
charge and requested the additional instruction of self-defense. Specifically,
Appellant requested that thejury charge include the law ofselfdefense and the
court overruled his request. 4 RR 63-68. Thus, the error was properly preserved for
appellate review
At trial, there was more than a scintilla or "some evidence" to raise the issue
of whether the officers used "greater force than necessary" in their handling of
Appellant. See Porteous,259 S.W.3d at748; See also Bignall,887 S.W.2d at 23.
From the video in State's Exhibit 2, a rational juror could conclude that before
Appellant oflered any actual resistance with force, the offrcer used greater force
than was necessary and Appellant merely reacted to said excessive force in self
defense. Further, testimony clearly showed that Appellant was lying on the ground,
asleep, when officers suddenly grabbed each of his arms and yanked him up from
the ground, then when he didn't cooperate and reacted to them, they slammed him
to the glound and piled on top of him. 3 RR 25 1;4 RR 41-44, 51. Owens even held
Appellant's head back by gripping Appellant's chin with his hands. 3 P.P.271-72.
Once a defendant meets the initial burden of producing some evidence to
justify submission of a self-defense instruction, the State must persuade the jury
beyond a reasonable doubt that the delendant did not act in self-defense. Luck v
State,588 S.W.2d 371,375 (Tex. Crirn. App. 1976). Because Appellant presented
nore than a scintilla or "some evidence" to justify the submission of a self defense
22
instruction, that instruction should have been submitted to the jury. At the charge
conference, the State argued the weight of this evidence. Yet, the perceived
strength or weakness of the evidence is not the proper focus; because there was
some evidence ofexcessive force in the record, some evidence to suggest
Appellant acted in self defense, that instruction should have been subrnitted to the
Jury.
Harm Analysis
Reversal is required ifAppellant suffered "some harm" because of the denial
of his requested jury instruction. Ovalle v. State,l3 S.W.3d 774,786 (Tex. Crrm.
App. 2000) (quoting Almanza v. State,686 S.W.2d 157,777 (Tex. Crim. App.
1985)). Ifthe charge contains eror, and that enor has been properly preserved by
an objection or requested instruction, reversal is required if the error is "calculated
to injure the rights of the defendant," meaning there must be some harm. Tsx.
CRIM. PRoc. AP.T. 36.19; Trevino v. State, 100 S.W.3d 233,242 (Tex. Crim. App
2003) (per curium); Almanza,686 S.W.2d at 171. "Unless all harm was abated,
appellant suffered 'some'harm." Miller, Sl5 S.W.2d at 586 n.5.
The .july charge gave the july the option of finding appellant guilty or not
guilty ofAssault on a Public Servant but denied thejury the fair option to consider
our law on self defense, despite there being some evidence than officers used
greater force than was necessary in their handling ofAppellant. That the State or
trial court believed this evidence to be unpersuasive is irrelevant. Just as the State
23
trial court believed this evidence to be unpersuasive is irrelevant. Just as the State
intentionally pointed out to the jury that Resisting Arrest, Search, or Transpot't was
not included in the jury charge, it was surely understood that the plinciples of self
defense were not to be considered by the jury, leading them to convict Appellant of
the charged offense. See 4P.R72.
Because the b'ial courl denied Appellant's request for an instruction on self-
defense, counsel was not able to present this defensive theory to the jury for its
consideration and, therefore, suffered "some harm" from the courl's denial ofan
instruction on self-defense.
POINT OF ERROR THREE
THE EVIDENCE IS INSUFFICIENT TO PROVE THAIAPPELLANT
ASSATILIED E. CISNEROS
Standard ofReview
When reviewing the legal sufficiency of the evidence to suppoft a
conviction, the appellate court should review the evidence in a light most favorable
to the verdict to determine ifany rational jury could have found beyond a
reasonable doubt the essential elements of the offense. Jackson v. Virginia,443
U.S. 307, 319 (1979); Temple v. State,390 S.W.3d 341,360 (Tex. Crim. App.
2013). This standard applies in both direct and circumstantial evidence cases.
Burden v. State.55 S.w.3d 608, 613 (Tex. Crim. App. 2001).
24
Argument & Authorities
A guilty verdict based on legally insufficient evidence violates the due
process clauses of the Fifth and Fourteenth Amendrnents to the United States
Constitution. Richardson v. State,879 S.W.2d 874 (Tex. Crim. App. 1993). The
jury is the sole judge of the credibility and weight to be attached to the testirnony
of witnesses, and the jury is permitted to draw reasonable inferences from facts as
long as the evidence presented supports the jury's inferences. Jackson,443 U.S. at
319. Furlhermore, juries have the ability to draw their own conclusions supported
by the evidence presented at trial, howeveq juries cannot reach their own
conclusions based on speculation or factually unsupporled inferences or
presunrptions. Hooper v. State,214 S.W.3d 9, 16 (Tex. Crim. App. 2007)
In this case, prior to trial, the State moved to amend the indictment in
13CR3049 to change the complainant listed fi'om "W. Cisneros" to "E. Cisneros."
^See
I CR 6-7. The trial court granted the State's motion and amended the face of
the indictment consistent with the State's motion. 1d. Thus, the State was required
to present sufficient evidence such that a rational jury could find beyond a
reasonable doubt that Appellant assaulted a peace officer by the name of E.
Cisneros.
However, at trial, the person who testified and identified himself as "Ofhcer
Cisneros" with Texas City Police Department never actually identified himself as
"Officer E. Cisneros" or "Officer Eric Cisneros," or anything else other than
25
Officer Cisneros. See 4 RR 6-59. Indeed, Cisneros testified that he was present at
the jail that day, and that Appellant bit, scratched, and struck hin, , causing bodily
injury to hlm. Id. But he never identified himself as the complaining witness, nor
did anyone else at trial. Nor was this witness ever identified as the person named in
the indictment in 13CR3049. Id
It is true that Jailer 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 her testimony alone is insufficient to meet the elements of
the indictment. See 3 RR225-29. For example, Jackson testified that she observed
Cisneros and Owens reach for Appellant's arms and at that time she saw Appellant
grab Cisneros's arm. 3 RR 205. But that's all that Jackson observed at that tirne
because, after Appellant began resisting, she immediately left the area to call for
backup. 3 RR 209-10. In fact, at this point, Jackson testified that "after they hit the
floor" she "walked back to the booking area, which is a secured area" to cali for
additional officers. 3 RR 210. Jackson next observes Corporal Moreno enter the
cell and watches Cisneros exit. 3 RR 201- I I .
Thejury is not permitted to draw conclusions based on speculation because
doing so is not sufficiently based on facts or evidence to suppod a finding beyond
a reasonable doubt. Hooper, 214 S.W.3d at 16. As such, this july was not permitted
to speculate that the Officer Cisneros who testified is the same Officer E. Cisneros
named in the indictment or that he is the same person who Jackson referred to
26
during her testimony. While it is true that certain bits of testimony may support the
verdict, the State failed to present sufficient evidence to sustain a conviction fbr
Assault on a Public Servant in Cause number 13CR3049. Given this deficiency of
proof, the only way that the jury could have concluded that Appellant was guilty in
13CR3049 is if they irrationally overlooked the details of the complainant's name
or speculated that the person who testified must be the person named in the
indictment and lury charge. For all of these reasons, there is insufficient evidence
to sustain this conviction, and the guilty verdict is contrary to our laws.
Harm Analysis
A guilty verdict based on legaliy insufficient evidence violates the due
process clauses of the Fifth and Fourteenth Amendrnents to the United States
Constitution. Richatdson,8Tg S.W.2d 874. As argued above, the guilty verdict in
cause 13CR3049 is based on insufficient evidence. As such, this court must reverse
the conviction in this cause and render an acquittal.
27
PRAYER
WHEREFORE, PREMISES CONSIDERED. the Appellant prays that this
Coufi reverse Appellant's conviction, and grant any other relief that may be
appropriate.
Respectfully submitted,
/s/ Daniel Lazarrne
DANIELLAZARINE
TBN: 24073197
440 Louisiana Street, Suite 200
Houston, Texas77002
7t3-224-4000
713-224-2815 (Fax)
dlazarine@icloud.com
Attorney for Appellant
28
CERTIFICATE OF SERVICE
This is to certify that onthe2Tth day of February,2015, a true and correct
copy of the above and foregoing Appellant's Brief was served on the Galveston
County DistlictAttorney's Office, 600 59th Street, Suite 1001, Galveston, Texas,
by certified mail
/s/ Daniel Lazarine
DANIELLAZARINE
29
CERTIFICATE OF COMPLIANCE
Pursuant to TEX.R.APP.P. 9.4(1XiX1), I certify that this document complies
with the type-volurne limitations of TEX.R.APP.P. 9.a(iX2XD):
1. Exclusive of the exen.rpted portions set out in TEX.R.APP.P. 9.a(i)(1), this
document contains 4,257 words.
2. This document was prepared in proportionally spaced typeface using
Times New Roman 14 for text.
/s/ Daniel Lazarine
DANIELLAZARINE
30