Affirmed as Modified and Opinion Filed December 7, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00706-CR
TERRY WILLIAM STRACHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-80708-2013
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Fillmore and Stoddart
Opinion by Chief Justice Wright
Appellant Terry Strachan waived his right to a jury trial and pleaded not guilty to
aggravated assault on a public servant. On May 2, 2014, the trial court found appellant guilty. He
now appeals. In one issue, appellant contends the evidence is legally insufficient to show he
committed aggravated assault on a public servant. The State of Texas cross-appeals to request a
correction to a clerical error in the judgment. We modify the trial court’s judgment and, as
modified, affirm.
Background
On February 3, 2013, Allen Police Officer Thomas Sprague, while on patrol in his
marked patrol car, observed a motorcycle traveling down a road without a taillight or license
plate light. Officer Sprague turned on his overhead emergency light and attempted to catch up to
the motorcycle, driven by the appellant, to effect a traffic stop. Instead of pulling over, appellant
accelerated, leading Sprague and an assisting officer, Officer Thomas Craig, on a high-speed
chase. After a brief chase, appellant wrecked his motorcycle and fled on foot towards a gas
station. As the officers continued their pursuit around the outside of the gas station, appellant
stopped running and turned towards the officers. At this juncture, the testimony of the officers
and appellant differs.
Sprague described appellant’s posture as an aggressive stance with nothing in his
clenched fists. Sprague felt threatened by appellant’s stance, so he attempted to use his TASER
on appellant. The TASER failed because one of the probes missed appellant––he had already
turned to flee. Once the TASER did not succeed, Craig grabbed appellant from behind and tried
to spin him to the ground. As Craig spun appellant, Sprague witnessed appellant remove a knife
from his belt area. After Sprague saw appellant remove the knife, flick his wrist to open the
knife, and bring his arm up over his shoulder three to four times toward Craig’s head, Sprague
called out “knife” to Craig. Sprague saw Craig “thr[o]w” appellant and the knife fly from
appellant’s hand. At that point, Sprague dropped his TASER and drew his pistol. Sprague
ordered appellant to get on the ground and take his hands out of his pockets, but appellant did not
comply. Craig then subdued appellant by use of his TASER, and Sprague arrested appellant.
Craig’s testimony is very similar to Sprague’s; he also felt threatened by appellant’s
stance. After Craig saw Sprague’s unsuccessful TASER attempt, Craig jumped on appellant’s
back and tried to take appellant to the ground. As Craig began to swing appellant, he heard
Sprague say “knife,” at which point he “chunked” appellant in an effort to disengage. Once free
from Craig’s hold, appellant put his hands back into his pockets, and the officers drew their
pistols. After ordering appellant to remove his hands from his pockets, and a final attempt by
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appellant to turn and run, Craig successfully used his TASER to subdue appellant and make the
arrest. Craig testified that he did not see the knife until after the altercation.
Appellant’s testimony conflicts with Sprague and Craig’s testimonies in two ways. First,
appellant testified that he held a knife in his hand as he initially turned to police. Second,
appellant expressly denied ever “try[ing] to come over [his] back and stab the officer.”
A grand jury indicted appellant on April 2, 2013. The indictment alleged the following
actions by appellant:
then and there intentionally and knowingly threaten Thomas Craig with imminent
bodily injury by swinging a knife in the direction of Thomas Craig, and did then
and there use and exhibit a deadly weapon, to-wit: a knife that in the manner of its
use and intended use is capable of causing death and serious bodily injury, during
the commission of said assault, and the defendant did then and there know that the
said Thomas Craig was then and there a public servant, to-wit: a police officer
employed by the Allen Police Department, and that the said Thomas Craig was
then and there lawfully discharging an official duty, to-wit: arresting the said
defendant[.]
Appellant entered a plea of not guilty, and a bench trial commenced on May 2, 2014. The
judge found appellant guilty of aggravated assault and assessed a punishment of twenty-four
years’ imprisonment and no fine. Appellant pleaded true to the enhancement paragraph, and the
court found the enhancement paragraph true. Appellant then filed a notice of appeal.
Analysis
A. Sufficiency of the Evidence
In his sole issue, appellant contends the evidence is legally insufficient to support a
finding of guilt for the offense of aggravated assault on a public servant. When an appellant
challenges the sufficiency of the evidence, we examine all the evidence in the light most
favorable to the verdict and determine whether a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Lucio v. State, 351
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S.W.3d 878, 894–95 (Tex. Crim. App. 2011). We are required to defer to the fact finder's
credibility and weight determinations because the fact finder is the sole judge of the witnesses'
credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 326. Evidence
is sufficient if “the inferences necessary to establish guilt are reasonable based upon the
cumulative force of all the evidence when considered in the light most favorable to the verdict.”
Wise, 364 S.W.3d at 903. If the evidence is conflicting, we “‘presume that the factfinder resolved
the conflicts in favor of the prosecution’ and defer to that determination.” Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 326 (1979)).
A person commits a simple assault under section 22.01 when he intentionally or
knowingly threatens another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01 (West
2011). A person acts intentionally when “it is his conscious objective or desire to engage in the
conduct or cause the result.” Id. § 6.03(a). A person acts knowingly when “he is aware that his
conduct is reasonably certain to cause the result.” Id. § 6.03(b). A person commits aggravated
assault if he commits an assault under section 22.01 and the person “uses or exhibits a deadly
weapon during the commission of the assault.” Id. § 22.02. An aggravated assault is a felony of
the first degree if the offense is committed “against a person the actor knows is a public servant
while the public servant is lawfully discharging an official duty.” Id. § 22.02(b)(2)(B).
Appellant argues that the State failed to present sufficient evidence at trial that appellant
ever used or exhibited the knife during the commission of the assault and that Craig was
threatened by the knife. We disagree. Here, there is sufficient evidence of appellant’s exhibition
of the knife from the testimony of Sprague and Craig and from appellant’s courtroom
admissions.
Appellant specifically argues that he could not have committed the offense of aggravated
assault on a public servant because Craig did not see him holding the knife. This argument brings
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forth the question of whether the object of an assault must perceive the threat or if an actor’s
threat alone is enough to sustain a conviction for assault. The Court of Criminal
Appeals of Texas has given us some guidance on this issue.
In Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006), the appellant was charged
with aggravated assault by threat when the appellant followed the victim and shot at her truck.
On appeal, the appellant argued that the State failed to prove the element of threat because the
victim did not perceive the threat at the time that the offense occurred. Id. at 343–44. The Court
determined that there was sufficient evidence in the record to infer that the victim perceived a
threat. Id. at 349. The Court noted that although the victim “did not instantaneously realize that
[the] appellant had fired shots at her, she knew that [the appellant] had done something
threatening to her. And she was frightened.” Id. at 350 (emphasis in original). Although the
victim “did not comprehend that she was being shot at as [the] appellant fired at her car,” her
“realization moments later of what [the appellant] had done nonetheless placed her in great fear.”
Olivas, 203 S.W.3d at 350–51. The Court stated that “there is no statutory requirement that a
victim must instantaneously perceive or receive a threat of imminent bodily injury as the actor is
performing it,” but only that “there must be some evidence of a threat being made [in order] to
sustain a conviction of assault by threat.” Id. at 349–51 (emphasis in original); see also Boston v.
State, 410 S.W.3d 321, 326 (Tex. Crim. App. 2013).
Olivas is analogous to appellant’s case. Here, just as the victim in Olivas did not
instantaneously realize that the assailant fired shots at her because she did not see the assailant
holding or firing a gun, Craig did not instantaneously realize appellant had swung a knife at his
head because he did not see appellant holding the knife or stabbing at his head. Just as the victim
in Olivas said that she felt great fear after she realized what the assailant had done, Craig testified
he felt great fear after he found out what appellant had done—as evidenced by him “chunk[ing]”
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appellant when Sprague alerted Craig to appellant’s knife. While Craig did not instantaneously
realize appellant had swung a knife at his head, Sprague’s warning informed Craig that appellant
had done something threatening to him, and Craig was frightened. Both Sprague’s warning and
Craig’s reaction to that warning represent some evidence of appellant threatening Craig with the
knife.
There is conflicting testimony in the record about whether the appellant swung a knife in
the direction of Craig. Appellant testified that he did not swing a knife in the direction of Craig.
However, Sprague testified that appellant swung a knife in the direction of Craig’s head several
times. The trial court, acting as fact finder, weighed the evidence in favor of the State and
resolved the conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326.
Looking at the evidence in a light most favorable to the verdict, we conclude that a
rational factfinder could find beyond a reasonable doubt that appellant assaulted Craig with a
deadly weapon. Accordingly, we overrule appellant’s sole issue on appeal.
B. Modification of the Judgment
The State points out that the written judgment in this case recites that appellant pleaded
“guilty” to the offense charged. The record, however, shows the appellant entered a plea to the
offense of “not guilty.” Also, the Court notes that the record shows appellant pleaded “true” to
the enhancement paragraph and the trial court found the enhancement paragraph true. Under both
of these headings, the written judgment states, “N/A.” Thus the written judgment is incorrect in
this case.
This Court has the authority to correct a trial court’s judgment when it has the necessary
data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991,
pet. ref’d). We modify the written judgment in this case to show appellant pleaded “not guilty” to
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the offense, and to show appellant pleaded “true” to the enhancement paragraph and the trial
court found the enhancement paragraph true.
Conclusion
We resolve appellant’s issue against him. As modified, we affirm the trial court's
judgment.
Do Not Publish
TEX. R. APP. P. 47
140706F.U05 /Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERRY WILLIAM STRACHAN, Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-14-00706-CR V. Trial Court Cause No. 296-80708-2013.
Opinion delivered by Chief Justice Wright.
THE STATE OF TEXAS, Appellee Justices Fillmore and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Plea to 1st Enhancement Paragraph: TRUE
Findings on 1st Enhancement Paragraph: TRUE
Plea to Offense: NOT GUILTY
As MODIFIED, the judgment is AFFIRMED.
Judgment entered December 7, 2015.
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