Zachary R. Robinson v. State

ACCEPTED
02-15-00113-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
9/14/2015 8:10:40 AM
DEBRA SPISAK
CLERK

NO. 02-15-00113-CR

FILED IN
2nd COURT OF APPEALS
COURT OF APPEALS FORT WORTH, TEXAS
FOR THE SECOND DISTRICT OF TEXAS
9/14/2015 8:10:40 AM
DEBRA SPISAK
Clerk

ZACHARY R. ROBINSON

V.

STATE OF TEXAS

ON APPEAL FROM COUNTY CRIMINAL COURT NO. 1, DENTON
COUNTY, TEXAS
THE HONORABLE JIM E. CROUCH PRESIDING

BRIEF OF APPELLANT

SUBMITTED BY:

Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street; Suite 200
Houston, TX 77002
Bar Number: 24043764 Oral Argument Requested
 IDENTITY OF PARTIES AND COUNSEL

Appellent/Defendant:

Zachary R. Robinson

Counsel for Appellant:

Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street; Suite 200
Houston, TX 77002
713-775-3050 (Direct)
seth@kretzerfirm.com (email)

Appellee/Plaintiff:

The State of Texas

Counsel for Appellee:

Catherine Luft
Assistant Criminal District Attorney
1450 East McKinney
Denton, TX 76209

i
 TABLE OF CONTENTS

Page
IDENTITIES OF PARTIES AND COUNSEL………………..………………...….i

INDEX OF AUTHORITIES…..………………………………………………..…iii

RECORD REFERENCES………...……………...……………………………..…iv

STATEMENT OF THE CASE………………………..……………………..…….v

ISSUES PRESENTED……………….……………………………………..……...v

STATEMENT OF FACTS……………………………..……………………..…....1

SUMMARY OF ARGUMENT……………………..………………………..…….9

ARGUMENT……………………………………..…………………………..…….9

A. Elements of Interference with an Emergency Call………………..……..9

B. Ms. Kimberling Did Not Reasonably Believe That She Was In
Fear of Imminent Assault……………………………………...………..10

C. Mr. Robinson Did Not Know That He Was Preventing or Interfering
With An Emergency Call……….…………………………….………...13

PRAYER…………………………….……………………………………………14

CERTIFICATE OF COMPLIANCE…………………………..………………….15

CERTIFICATE OF SERVICE………………………………………..…………..15

APPENDIX

ii
 INDEX OF AUTHORITIES

Page

Federal Case

Jackson v. Virginia, 443 U.S. 307 (1979)……………………………………….…8

State Cases

Louis v. State, 393 S.W.3d 246 (Tex.Crim.App.2012)…………………………….8

Matlock v. State, No. 12–05–00413–CR, 2006 WL 2106951
(Tex.App. July 31, 2006)……………………………………………….......10,11,13

Statutes

Tex. Pen. Code § 1.07…………………………………………………….…....10,11

Tex. Pen. Code § 22.01……………………………………………………………11

Tex. Pen. Code § 42.062…………………………………………………......9,10,11

iii
 RECORD REFERENCES

The Record citing convention contained below is used throughout Appellant’s
Brief.

CR Vol. 1 p. ___ Clerk’s Record Volume 1, page ___

CR Vol. 2, p. ___ Clerk’s Record Volume 2, page ___

CR Vol. 3, p. ___ Clerk’s Record Volume 3, page ___

iv
 STATEMENT OF THE CASE

Zachary Robinson was charged with Assault Family Violence and

Interference with an Emergency Call. CR Vol. 2, p. 5-6. The jury returned a

unanimous verdict of not guilty of the charge of assault but guilty of the charge of

interference. See Robinson Judgment. This appeal challenges the legal sufficiency

of the jury’s finding with regard to the interference charge.

ISSUES PRESENTED

1. Whether a rational trier of fact could have found beyond a reasonable doubt
that Ms. Kimberling reasonably believed herself to be in fear of imminent
assault.

2. Whether a rational trier of fact could have found beyond a reasonable doubt
that Mr. Robinson knowingly prevented Ms. Kimberling from making a
phone call, or interfered with her ability to make a phone call.

v
 STATEMENT OF FACTS

A. Introduction

This case involves a he-said/she-said dispute of facts with very little third-

party or objective evidence. Because this Court reviews sufficiency challenges in

the light most favorable to the State’s theory of inculpation, the following

statement of facts is based almost entirely on Ms. Kimberling’s sworn version of

events.

B. Ms. Kimberling’s Version of Events

On the night of September 8, 2014, Mr. Robinson was an invited guest of

Rachel Kimberling at her house in Denton, Texas. They had dinner, watched a

movie, and went to bed together. CR. Vol. 2, p. 61. In bed, they argued, Mr.

Robinson touched Ms. Kimberling, she asked him to leave, and he got up and

walked to the front room of the house. CR Vol. 2, p. 62. Ms. Kimberling

explained:

Q. Let’s get the sequence down. You’re in bed. You’re arguing. He then
grabs your arm and squeezes you tight. He then gets up on his own accord
to leave, and then you followed him down the hallway . . .
A. Yes.

CR Vol. 2, p. 86.

Ms. Kimberling admitted several times at trial that she told Mr. Robinson

that she was going to call 911 not because she was in fear of an assault, but out of

1
spite simply because she wanted him to leave. For example, Mr. Kimberling

testified on direct examination:

Q. Okay. So you follow him out into the hallway. What happened next?

A. I just remember he was walking in front of me and we were walking
the same direction and we're yelling at each other, and I just remember him
kind of like backing into me, like pushing me back. And I got upset, and we
kept arguing, and I asked him to leave. And I told him that if he didn’t leave,
I was going to call the cops.

Q. Okay. And once you told him you were going to call the police, what
happened at that point?

A. He took my [white Iphone 5C].

Q. And where was your phone when he took it?
A. Out of my hand.

Q. Now, once he took your phone, what happened next?

A. He went back into the master bedroom, and I followed him back there
to try to get it back. And I was trying to fight to get into the bedroom. He
was trying to fight to keep me out, and he smashed my hand in the door
several times.

CR Vol. 2, P. 62-63.

On subsequent cross examination, she testified:

A. Yeah. When we’re fighting and I would have to threaten to call the
cops before, yes, I would.

Q. You threatened to call the cops before?

A. Yes, I have.

Q. And did you tell the cops when they responded to this incident about
all these other times?

2
A. I told them that I had threatened him before, that I had threatened to
call the cops before, or his mother, and I've called his mother before.
...
Q. So he’s now taking your phone. Did you say, no, that’s not – don’t
take it; it’s my phone?

A. Yeah. Anytime that’s happened, yes.

Q. And why did you, as you’re chasing Mr. Mr. Robinson out of the
house, why did you grab your phone to do so?

A. Like I said, anytime that we have fought in --in the past couple times,
I’ve had to threaten to call the cops to get him to leave, and so I had it with
me.

Q. So from the walk to (sic) the bedroom to the hallway, you didn't dial
911 at that point?

A. No.

Q. You were still –

A. We had just started arguing.

Q. It was just still a threat?

A. And, yeah, it was a threat. It's always just been a threat to leave. It
wasn't my intention to actually have to need to call the cops, but it was a
way to get him to leave.

Q. And then what happens? Does he get your phone out of your hand?

A. Uh-huh.

Q. What happens then?

A. He ran back to the bedroom, and I followed him. And he tried to shut
the door, and I was trying to get in through the door.

3
 Q. So you followed him, now, back to the bedroom, and you were trying
-- he wouldn't let you inside the bedroom door?

A. Correct.

Q. And so you fought to get inside the bedroom door?

A. Correct.

Q. Wouldn't you agree with me that your pattern of -- of activity at this
point is just you chasing him around the house?

A. To get my phone.

Q. I mean, why would -- why is this phone so important? Why can't you
just let him have it and get it later?

A. First off, he’s in my house, and second of all, I wanted to call the cops
to get him to leave.

In sum, Ms. Kimberling’s testimony confirms that she was not in fear of Mr.

Robinson, but, rather, was using the threat of calling the police in order to get him

out of her house. As she testified, this was a regular pattern of behavior in their

typical arguments.

With regard to the remainder of their fight, Ms. Kimberling’s version is

summarized as follows: after fighting to get into the bedroom where Mr. Robison

was hiding, and in the process having her hand slammed in the doorway, Ms.

Kimberling then followed Mr. Robinson into the foyer area where she tripped over

an ottoman that he had pushed into her way, and then followed Mr. Robinson back

to the bedroom, where she struggled to get through the door and her foot was

4
slammed in the doorway. Ms. Kimberling then explained that she was locked in

the bedroom closet, and, uncertain of how she got out of the closet, then kicked

through and shattered the bedroom window, after which Mr. Robinson put her on

the bed and covered her with blankets. CR Vol. 3, p. 12-13. She says that Mr.

Robinson then lost interest in her, and she walked to her neighbor’s house, at

which point the 911 call was made. CR Vol. 2, p. 68-69.

C. Mr. Robinson’s Version of Events

Mr. Robinson’s version of events is not all that different from Ms.

Kimberling’s, with two important exceptions. First, while Ms. Kimberling claims

that Mr. Robinson was acting aggressively, he explains that he was merely trying

to get away from her, and that any injuries suffered by Ms. Kimberling were the

result of his efforts to get away from her (e.g., pushing an ottoman behind him into

her way, causing the “hysterical” Ms. Kimberling to trip; closing the doors behind

him so that she could not get to him, but accidentally catching her hand or foot in

the doorway) and de-escalate their argument. See CR Vol. 3, p. 166-70. And,

second, he claims that he grabbed Ms. Kimberling’s phone (a white IPhone 5C) by

mistake from a nightstand in the bedroom as he was gathering his belongings in his

attempt to leave the house, and did not intentionally take her phone from her hand.

CR Vol. 3, p. 164, 182. He testified that, unaware of the fact that he had left his

phone in Ms. Kimberling’s car, he believed that the phone he grabbed as he was

5
trying to leave the house was his phone (a white IPhone 5S), because their phones

are very similar. CR Vol. 3, p. 174.

Mr. Robinson’s account was substantiated in at least two significant areas.

First, Ms. Kimberling confirmed that Mr. Robinson had unknowingly left his

phone in her car.

Q. And later on, after this had all transpired, after you had talked to
police, did you actually find the defendant’s phone somewhere?

A. Yes.

Q. And where was that?

A. Me and the officer found it in my car on the passenger side.

Q. And do you know how it had gotten there?

A. I assume that it fell out of his pocket on our ride to dinner.

CR Vol. 2, p. 74. And, second, Officer Hooton, one of the police officers who

responded to the 911 call, testified that Mr. Robison’s behavior was defensive, in

other words not something of which to be fearful:

Q. You referred several times to a term similar to or including a
“defensive manner,” that Mr. Robinson was acting basically in a defensive
manner.

A. Uh-huh.

Q. And sometimes you would include a word like “retreat” and use those
as synonyms. Is that fair to say?

A. Yes.

6
 Q. So my question is, by using the term “defensive manner,” you mean
that he was retreating from the situation and removing himself from the
situation. Is that accurate?

A. Yes.

CR Vol. 3, p. 84-85.

D. The Emergency Call

Ms. Kimberling eventually did decide to leave her house to use her

neighbor’s phone to call the police. Mr. Robinson did not prevent her from doing

so; in fact, he gathered his things and got into his truck to leave. She explained it

this way:

I was able to actually -- he wasn't paying attention to me anymore. I really
think it was over, and he was trying to get his stuff, and I went out front and
my neighbor was out front. I asked him to call the police.

CR Vol. 2, p. 68-69. The neighbor, Josh Johnson, testified about seeing Ms.
Kimberling and then Mr. Robinson as follows:

A. [Ms. Kimberling] was like, please call 911, my boyfriend has gone
crazy.

Q. Okay. So did -- did you end up calling 911?

A. I did.
…
Q. And when they were exchanging words, Rachel was in your front
yard, or porch?

A. Yeah, she's pretty much on the front porch, if-- if you want to call it a
front porch. There's a --kind of an extended concrete pad that runs the
majority of the width of the house.

Q. And Mr. Robinson was in the driveway? Where was he?

7
 A. There's not a driveway in the front of the house. He's -- he's on the
curb.

Q. Near his truck?
A. He's in his truck, in the driver’s seat.

Q. Okay. And then Ms. Kimberling . . . asks him, begs him, not to leave?

A. She's saying, you need to stop, please get out of the truck. Now, there
were more things said. I don't know what was said, but that -- that is stuck
in my mind.

CR Vol. 2, p. 40. This testimony shows that Ms. Kimberling was able to make an

emergency call. It further shows that Ms. Kimberling, who asked Mr. Robinson to

get out of his truck, was not scared of him.

STANDARD OF REVIEW

In assessing the legal sufficiency of the evidence 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 juror could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);

Louis v. State, 393 S.W.3d 246, 249 (Tex.Crim.App.2012) (internal citations

omitted).

8
 SUMMARY OF ARGUMENT

No rational trier of fact could have found Mr. Robinson guilty of

interference with an emergency call because the elements of that charge were not

proven in this case. Tex. Pen. Code § 42.062(a). Specifically, there was no

emergency, and there was no record evidence that Mr. Robinson knew or had

reason to know that he was preventing Ms. Kimberling from making an emergency

call. Because the elements of the charge were clearly not satisfied, no rational trier

of fact could have found Mr. Robinson guilty and, as a result, the conviction must

be overturned.

ARGUMENT

A. Elements of Interference with an Emergency Call

Interference with an emergency phone call is proscribed by Section

42.062(a) of the Texas Penal Code, which reads as follows:

(a) An individual commits an offense if the individual knowingly prevents or
interferes with another individual’s ability to place an emergency telephone
call or to request assistance in an emergency from a law enforcement
agency, medical facility, or other agency or entity the primary purpose of
which is to provide for the safety of individuals.

Tex. Pen. Code § 42.062(a). As the trial court stated, a person acts knowingly, or

with knowledge, with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause the result. CR Vol. 3, p. 209. “Emergency”

is defined as

9
 (d) [A] condition or circumstance in which any individual is or is reasonably
believed by the individual making a telephone call to be in fear of imminent
assault or in which property is or is reasonably believed by the individual
making the telephone call to be in imminent danger of damage or
destruction.

Id. § 42.062(d). And finally, a reasonable belief is “a belief that would be held by

an ordinary and prudent man in the same circumstances as the actor.” Id. §

1.07(a)(42). Thus, in order to find Mr. Robinson guilty of this offense, the jury

must find the following:

1) Ms. Kimberling reasonably believed she was in fear of imminent assault;
2) Ms. Kimberling’s phone call was knowingly prevented or interfered with.

Here, the State did not prove these elements because the record does not show that

Ms. Kimberling reasonably believed she was in fear of imminent assault, that Mr.

Robinson had reason to know that Ms. Kimberling even could have been in fear of

imminent assault, or that Ms. Kimberling’s ability to make a phone call was

prevented or interfered with.

B. Ms. Kimberling Did Not Reasonably Believe That She Was In Fear
Of Imminent Assault.

Even if one believes Ms. Kimberling’s unsupported testimony that Mr.

Robinson was attacking her, one cannot also believe that Ms. Kimberling was

actually trying to make an emergency call. This case is very similar to Matlock v.

State, No. 12–05–00413–CR, 2006 WL 2106951, at *2 (Tex.App.-Tyler July 31,

2006, no pet.) (mem. op., not designated for publication), where the Tyler Court of

10
Appeals considered whether there was legally sufficient evidence that an

interrupted call to 911 constituted an emergency call for purposes of Section

42.062(d). In that case, the defendant, who had entered living room of wife’s

apartment through a window, grabbed phone from wife’s hand after the 911

operator answered, and he pushed his wife away as she tried to reach for the phone.

Yet, the record contained no evidence that the wife, when she made the 911 call,

was afraid of her husband, or that she reasonably feared that she was in danger of

imminent assault. Tex. Pen. Code §§ 1.07(a)(42), 22.01(a), 42.062(a). Because

there was no proof of facts of circumstances from which one could infer that the

wife reasonably feared he would assault her, and no evidence that he had

threatened her, the court overturned the husband’s conviction. Matlock, at *2-3.

While Ms. Kimberling may have stated that she was scared of Mr. Robinson,

the record does not support that statement. Ms. Kimberling invited Mr. Robinson

to her house, she invited him to go to dinner with her, and she invited him to return

to her house and sleep with her. CR. Vol. 2, p. 61. After their argument began,

Mr. Robinson walked to the front of the house to leave. Instead of letting him

go—which a fearful person unquestionably would have done—she testified that

she followed him. CR. Vol. 2, p. 62. She admits that when he left the front room

to get away from her, instead of walking directly out of the house and to her

neighbors, she followed him toward the bedroom, where he was trying to hide.

11
(“He went back into the master bedroom, and I followed him back there . . . And I

was trying to fight to get into the bedroom.” CR Vol. 2, p. 62-63.) Furthermore, it

would not be reasonable to infer that she was trying to make an emergency call

because, as she testified, she repeatedly in the past had threatened to call the police

during their arguments, but they were only threats to get Mr. Robinson to leave—

not to report an emergency:

A. Like I said, anytime that we have fought in --in the past couple times,
I've had to threaten to call the cops to get him to leave, and so I had it
with me.

Q. So from the walk to (sic) the bedroom to the hallway, you didn’t dial
911 at that point?

A. No.
...
Q. It was just still a threat?

A. And, yeah, it was a threat. It's always just been a threat to leave. It
wasn’t my intention to actually have to need to call the cops, but it was a
way to get him to leave.

CR Vol. 2, p. 62-63. Based on Ms. Kimberling’s own testimony, one must

conclude that she did not actually believe there was an emergency. Furthermore,

based on the testimony of the neutral neighbor, there is no basis to infer that Ms.

Kimberling was afraid:

Q. Okay. And then Ms. Kimberling . . . asks him, begs him, not to leave?

A. She's saying, you need to stop, please get out of the truck. Now, there
were more things said. I don't know what was said, but that -- that is stuck
in my mind.

12
CR Vol. 2, p. 40.

The Matlock court sustained the appellant husband’s sufficiency challenge

because there was no record evidence that the complainant wife was afraid of the

appellant or upon which one could infer that she reasonably feared he would

assault her. Matlock, at *2–3. In the case sub judice, the evidence militates even

more strongly in Mr. Robison’s favor: Ms. Kimberling’s own testimony and the

testimony of a neutral non-party establishes an undisputable lack of emergency.

The conviction of interference with an emergency call fails the legal sufficiency

test and must be overturned.

C. Mr. Robinson Did Not Know That He Was Preventing or Interfering
With An Emergency Call.

Not only was there no record evidence on which the trier of fact could infer

that Ms. Kimberling was trying to make an emergency call, there is no evidence

that Mr. Robinson had reason to know that he was preventing or interfering with

Ms. Kimberling’s ability to make a phone call, let alone an emergency phone call.

This is because, for the same reasons that the trier of fact could not infer that Ms.

Kimberling was fearful, Mr. Robinson could not infer that Ms. Kimberling was

fearful. As stated above, Ms. Kimberling had made similar threats regarding

emergency calls in the past, and those threats were based on her desire to get him

out of the house, not her fear of him.

13
 It is also because, as Officer Hooton attests, Mr. Robinson was acting

defensively while Ms. Kimberling was chasing him around.

Q. So my question is, by using the term “defensive manner,” you mean
that he was retreating from the situation and removing himself from the
situation. Is that accurate?

A. Yes.

CR Vol. 3, p. 84-85. It is hard to imagine any circumstance wherein the “chaser”

would reasonably fear the “chasee.”

Finally, Mr. Robinson could not have known that he was preventing or

interfering with an emergency call because there was no actual prevention or

interference. Once Ms. Kimberling regained calm and levelheadedness, she was

able to simply walk out of the house and ask her neighbor to make a call. Ms.

Kimberling explained it this way:

I was able to actually -- he wasn't paying attention to me anymore. I really
think it was over, and he was trying to get his stuff, and I went out front and
my neighbor was out front. I asked him to call the police.

CR Vol. 2, p. 68-69.

PRAYER

For the foregoing reasons, the jury’s finding with respect to the charge of

Interference with an Emergency Call is legally insufficient, and Mr. Robinson

respectfully requests that this Court reverse and render.

14
 Respectfully submitted,

________________________
Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street; Suite 200
The Lyric Center
Houston, TX 77002
(713) 775-3050 (Direct)
seth@kretzerfirm.com (email)

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 3,364 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.

____________________
Seth Kretzer

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Appellant Brief was served by
First-Class Mail on the 14th day of September, 2015, to the following address:

Catherine Luft
Assistant Criminal District Attorney
1450 East McKinney
Denton, TX 76209

___________________
Seth Kretzer

15
 NO. 02-15-00113-CR

COURT OF APPEALS
FOR THE SECOND DISTRICT OF TEXAS

ZACHARY R. ROBINSON

V.

STATE OF TEXAS

ON APPEAL FROM COUNTY CRIMINAL COURT NO. 1, DENTON
COUNTY, TEXAS
THE HONORABLE JIM E. CROUCH PRESIDING

APPENDIX TO BRIEF OF APPELLANT

SUBMITTED BY:

Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street; Suite 200
Houston, TX 77002
Bar Number: 24043764
 TABLE OF CONTENTS

Tab

Judgment of Community Supervision……………………………………………A

Texas Penal Code §1.07………………………………………………………….B

Texas Penal Code § 22.01………………………………………………………..C

Texas Penal Code § 42.062………………………………………………………D
APPENDIX TO BRIEF OF
APPELLANT
TAB A
APPENDIX TO BRIEF OF
APPELLANT
TAB B
PENAL CODE
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS

Sec. 1.07. DEFINITIONS. (a) In this code:
(1) "Act" means a bodily movement, whether
voluntary or involuntary, and includes speech.
(2) "Actor" means a person whose criminal
responsibility is in issue in a criminal action.
Whenever the term "suspect" is used in this
code, it means "actor."
(3) "Agency" includes authority, board, bureau,
commission, committee, council, department,
district, division, and office.
(4) "Alcoholic beverage" has the meaning
assigned by Section 1.04, Alcoholic Beverage
Code.
(5) "Another" means a person other than the
actor.
(6) "Association" means a government or
governmental subdivision or agency, trust,
partnership, or two or more persons having a
joint or common economic interest.
(7) "Benefit" means anything reasonably
regarded as economic gain or advantage,
including benefit to any other person in whose
welfare the beneficiary is interested.
(8) "Bodily injury" means physical pain,
illness, or any impairment of physical
condition.
(9) "Coercion" means a threat, however
communicated:
(A) to commit an offense;
(B) to inflict bodily injury in the future on
the person threatened or another;
(C) to accuse a person of any offense;
(D) to expose a person to hatred, contempt, or
ridicule;
(E) to harm the credit or business repute of
any person; or
(F) to take or withhold action as a public
servant, or to cause a public servant to take or
withhold action.
(10) "Conduct" means an act or omission and its
accompanying mental state.
(11) "Consent" means assent in fact, whether
express or apparent.
(12) "Controlled substance" has the meaning
assigned by Section 481.002, Health and Safety
Code.
(13) "Corporation" includes nonprofit
corporations, professional associations created
pursuant to statute, and joint stock companies.
(14) "Correctional facility" means a place
designated by law for the confinement of a
person arrested for, charged with, or convicted
of a criminal offense. The term includes:
(A) a municipal or county jail;
(B) a confinement facility operated by the
Texas Department of Criminal Justice;
(C) a confinement facility operated under
contract with any division of the Texas
Department of Criminal Justice; and
(D) a community corrections facility operated
by a community supervision and corrections
department.
(15) "Criminal negligence" is defined in
Section 6.03 (Culpable Mental States).
(16) "Dangerous drug" has the meaning assigned
by Section 483.001, Health and Safety Code.
(17) "Deadly weapon" means:
(A) a firearm or anything manifestly designed,
made, or adapted for the purpose of inflicting
death or serious bodily injury; or
(B) anything that in the manner of its use or
intended use is capable of causing death or
serious bodily injury.
(18) "Drug" has the meaning assigned by Section
481.002, Health and Safety Code.
(19) "Effective consent" includes consent by a
person legally authorized to act for the owner.
Consent is not effective if:
(A) induced by force, threat, or fraud;
(B) given by a person the actor knows is not
legally authorized to act for the owner;
(C) given by a person who by reason of youth,
mental disease or defect, or intoxication is
known by the actor to be unable to make
reasonable decisions; or
(D) given solely to detect the commission of an
offense.
(20) "Electric generating plant" means a
facility that generates electric energy for
distribution to the public.
(21) "Electric utility substation" means a
facility used to switch or change voltage in
connection with the transmission of electric
energy for distribution to the public.
(22) "Element of offense" means:
(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the
offense.
(23) "Felony" means an offense so designated by
law or punishable by death or confinement in a
penitentiary.
(24) "Government" means:
(A) the state;
(B) a county, municipality, or political
subdivision of the state; or
(C) any branch or agency of the state, a
county, municipality, or political subdivision.
(25) "Harm" means anything reasonably regarded
as loss, disadvantage, or injury, including harm
to another person in whose welfare the person
affected is interested.
(26) "Individual" means a human being who is
alive, including an unborn child at every stage
of gestation from fertilization until birth.
(27) Repealed by Acts 2009, 81st Leg., R.S.,
Ch. 87, Sec. 25.144, eff. September 1, 2009.
(28) "Intentional" is defined in Section 6.03
(Culpable Mental States).
(29) "Knowing" is defined in Section 6.03
(Culpable Mental States).
(30) "Law" means the constitution or a statute
of this state or of the United States, a written
opinion of a court of record, a municipal
ordinance, an order of a county commissioners
court, or a rule authorized by and lawfully
adopted under a statute.
(31) "Misdemeanor" means an offense so
designated by law or punishable by fine, by
confinement in jail, or by both fine and
confinement in jail.
(32) "Oath" includes affirmation.
(33) "Official proceeding" means any type of
administrative, executive, legislative, or
judicial proceeding that may be conducted before
a public servant.
(34) "Omission" means failure to act.
(35) "Owner" means a person who:
(A) has title to the property, possession of
the property, whether lawful or not, or a
greater right to possession of the property than
the actor; or
(B) is a holder in due course of a negotiable
instrument.
(36) "Peace officer" means a person elected,
employed, or appointed as a peace officer under
Article 2.12, Code of Criminal Procedure,
Section 51.212 or 51.214, Education Code, or
other law.
(37) "Penal institution" means a place
designated by law for confinement of persons
arrested for, charged with, or convicted of an
offense.
(38) "Person" means an individual, corporation,
or association.
(39) "Possession" means actual care, custody,
control, or management.
(40) "Public place" means any place to which
the public or a substantial group of the public
has access and includes, but is not limited to,
streets, highways, and the common areas of
schools, hospitals, apartment houses, office
buildings, transport facilities, and shops.
(41) "Public servant" means a person elected,
selected, appointed, employed, or otherwise
designated as one of the following, even if he
has not yet qualified for office or assumed his
duties:
(A) an officer, employee, or agent of
government;
(B) a juror or grand juror; or
(C) an arbitrator, referee, or other person who
is authorized by law or private written
agreement to hear or determine a cause or
controversy; or
(D) an attorney at law or notary public when
participating in the performance of a
governmental function; or
(E) a candidate for nomination or election to
public office; or
(F) a person who is performing a governmental
function under a claim of right although he is
not legally qualified to do so.
(42) "Reasonable belief" means a belief that
would be held by an ordinary and prudent man in
the same circumstances as the actor.
(43) "Reckless" is defined in Section 6.03
(Culpable Mental States).
(44) "Rule" includes regulation.
(45) "Secure correctional facility" means:
(A) a municipal or county jail; or
(B) a confinement facility operated by or under
a contract with any division of the Texas
Department of Criminal Justice.
(46) "Serious bodily injury" means bodily
injury that creates a substantial risk of death
or that causes death, serious permanent
disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.
(46-a) "Sight order" means a written or
electronic instruction to pay money that is
authorized by the person giving the instruction
and that is payable on demand or at a definite
time by the person being instructed to pay.
The term includes a check, an electronic debit,
or an automatic bank draft.
(46-b) "Federal special investigator" means a
person described by Article 2.122, Code of
Criminal Procedure.
(47) "Swear" includes affirm.
(48) "Unlawful" means criminal or tortious or
both and includes what would be criminal or
tortious but for a defense not amounting to
justification or privilege.
(49) "Death" includes, for an individual who is
an unborn child, the failure to be born alive.
(b) The definition of a term in this code
applies to each grammatical variation of the
term.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1,
eff. Jan. 1, 1974. Amended by Acts 1975, 64th
Leg., p. 912, ch. 342, Sec. 1, eff. Sept. 1,
1975; Acts 1977, 65th Leg., p. 2123, ch. 848,
Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th
Leg., p. 1113, ch. 530, Sec. 1, eff. Aug. 27,
1979; Acts 1979, 66th Leg., p. 1520, ch. 655,
Sec. 1, eff. Sept. 1, 1979; Acts 1987, 70th
Leg., ch. 167, Sec. 5.01(a)(43), eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 997, Sec. 1,
eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch.
543, Sec. 1, eff. Sept. 1, 1991; Acts 1993,
73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,
1994; Acts 2003, 78th Leg., ch. 822, Sec. 2.01,
eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969),
Sec. 25.144, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 421 (H.B. 2031),
Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 839 (H.B. 3423),
Sec. 1, eff. September 1, 2011.
APPENDIX TO BRIEF OF
APPELLANT
TAB C
PENAL CODE
TITLE 5. OFFENSES AGAINST THE PERSON
CHAPTER 22. ASSAULTIVE OFFENSES

Sec. 22.01. ASSAULT. (a) A person commits an
offense if the person:
(1) intentionally, knowingly, or recklessly
causes bodily injury to another, including the
person's spouse;
(2) intentionally or knowingly threatens
another with imminent bodily injury, including
the person's spouse; or
(3) intentionally or knowingly causes physical
contact with another when the person knows or
should reasonably believe that the other will
regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a
Class A misdemeanor, except that the offense is
a felony of the third degree if the offense is
committed against:
(1) a person the actor knows is a public
servant while the public servant is lawfully
discharging an official duty, or in retaliation
or on account of an exercise of official power
or performance of an official duty as a public
servant;
(2) a person whose relationship to or
association with the defendant is described by
Section 71.0021(b), 71.003, or 71.005, Family
Code, if:
(A) it is shown on the trial of the offense
that the defendant has been previously convicted
of an offense under this chapter, Chapter 19, or
Section 20.03, 20.04, 21.11, or 25.11 against a
person whose relationship to or association with
the defendant is described by Section
71.0021(b), 71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally,
knowingly, or recklessly impeding the normal
breathing or circulation of the blood of the
person by applying pressure to the person's
throat or neck or by blocking the person's nose
or mouth;
(3) a person who contracts with government to
perform a service in a facility as defined by
Section 1.07(a)(14), Penal Code, or Section
51.02(13) or (14), Family Code, or an employee
of that person:
(A) while the person or employee is engaged in
performing a service within the scope of the
contract, if the actor knows the person or
employee is authorized by government to provide
the service; or
(B) in retaliation for or on account of the
person's or employee's performance of a service
within the scope of the contract;
(4) a person the actor knows is a security
officer while the officer is performing a duty
as a security officer; or
(5) a person the actor knows is emergency
services personnel while the person is providing
emergency services.
(b-1) Notwithstanding Subsection (b)(2), an
offense under Subsection (a)(1) is a felony of
the second degree if:
(1) the offense is committed against a person
whose relationship to or association with the
defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense
that the defendant has been previously convicted
of an offense under this chapter, Chapter 19, or
Section 20.03, 20.04, or 21.11 against a person
whose relationship to or association with the
defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code; and
(3) the offense is committed by intentionally,
knowingly, or recklessly impeding the normal
breathing or circulation of the blood of the
person by applying pressure to the person's
throat or neck or by blocking the person's nose
or mouth.
(c) An offense under Subsection (a)(2) or (3)
is a Class C misdemeanor, except that the
offense is:
(1) a Class A misdemeanor if the offense is
committed under Subsection (a)(3) against an
elderly individual or disabled individual, as
those terms are defined by Section 22.04; or
(2) a Class B misdemeanor if the offense is
committed by a person who is not a sports
participant against a person the actor knows is
a sports participant either:
(A) while the participant is performing duties
or responsibilities in the participant's
capacity as a sports participant; or
(B) in retaliation for or on account of the
participant's performance of a duty or
responsibility within the participant's capacity
as a sports participant.
(d) For purposes of Subsection (b), the actor
is presumed to have known the person assaulted
was a public servant, a security officer, or
emergency services personnel if the person was
wearing a distinctive uniform or badge
indicating the person's employment as a public
servant or status as a security officer or
emergency services personnel.
(e) In this section:
(1) "Emergency services personnel" includes
firefighters, emergency medical services
personnel as defined by Section 773.003, Health
and Safety Code, emergency room personnel, and
other individuals who, in the course and scope
of employment or as a volunteer, provide
services for the benefit of the general public
during emergency situations.
(3) "Security officer" means a commissioned
security officer as defined by Section 1702.002,
Occupations Code, or a noncommissioned security
officer registered under Section 1702.221,
Occupations Code.
(4) "Sports participant" means a person who
participates in any official capacity with
respect to an interscholastic, intercollegiate,
or other organized amateur or professional
athletic competition and includes an athlete,
referee, umpire, linesman, coach, instructor,
administrator, or staff member.
(f) For the purposes of Subsections (b)(2)(A)
and (b-1)(2):
(1) a defendant has been previously convicted
of an offense listed in those subsections
committed against a person whose relationship to
or association with the defendant is described
by Section 71.0021(b), 71.003, or 71.005, Family
Code, if the defendant was adjudged guilty of
the offense or entered a plea of guilty or nolo
contendere in return for a grant of deferred
adjudication, regardless of whether the sentence
for the offense was ever imposed or whether the
sentence was probated and the defendant was
subsequently discharged from community
supervision; and
(2) a conviction under the laws of another
state for an offense containing elements that
are substantially similar to the elements of an
offense listed in those subsections is a
conviction of the offense listed.
(g) If conduct constituting an offense under
this section also constitutes an offense under
another section of this code, the actor may be
prosecuted under either section or both
sections.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1,
eff. Jan. 1, 1974. Amended by Acts 1977, 65th
Leg., 1st C.S., p. 55, ch. 2, Sec. 12, 13, eff.
July 22, 1977; Acts 1979, 66th Leg., p. 260,
ch. 135, Sec. 1, 2, eff. Aug. 27, 1979; Acts
1979, 66th Leg., p. 367, ch. 164, Sec. 2, eff.
Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311,
ch. 977, Sec. 1, eff. Sept. 1, 1983; Acts 1987,
70th Leg., ch. 1052, Sec. 2.08, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 739, Sec. 1 to
3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg.,
ch. 14, Sec. 284(23) to (26), eff. Sept. 1,
1991; Acts 1991, 72nd Leg., ch. 334, Sec. 1,
eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch.
366, Sec. 1, eff. Sept. 1, 1991; Acts 1993,
73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,
1994; Acts 1997, 75th Leg., ch. 165, Sec. 27.01,
eff. Sept. 1, 1997; Acts 1995, 74th Leg., ch.
318, Sec. 5, eff. Sept. 1, 1995; Acts 1995,
74th Leg., ch. 659, Sec. 1, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 165, Sec. 27.01,
31.01(68), eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 62, Sec. 15.02(a), eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1158, Sec. 1, eff.
Sept. 1, 1999; Acts 2003, 78th Leg., ch. 294,
Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th
Leg., ch. 1019, Sec. 1, 2, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1028, Sec. 1, eff.
Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec.
16.002, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 1,
eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 2,
eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 6,
eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495),
Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495),
Sec. 2, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 427 (H.B. 2066),
Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 665 (H.B. 2240),
Sec. 2, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 875 (H.B. 705),
Sec. 1, eff. September 1, 2013.
APPENDIX TO BRIEF OF
APPELLANT
TAB D
PENAL CODE
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND
DECENCY
CHAPTER 42. DISORDERLY CONDUCT AND RELATED
OFFENSES

Sec. 42.062. INTERFERENCE WITH EMERGENCY
REQUEST FOR ASSISTANCE. (a) An individual
commits an offense if the individual knowingly
prevents or interferes with another individual's
ability to place an emergency call or to request
assistance, including a request for assistance
using an electronic communications device, in an
emergency from a law enforcement agency, medical
facility, or other agency or entity the primary
purpose of which is to provide for the safety of
individuals.
(b) An individual commits an offense if the
individual recklessly renders unusable an
electronic communications device, including a
telephone, that would otherwise be used by
another individual to place an emergency call or
to request assistance in an emergency from a law
enforcement agency, medical facility, or other
agency or entity the primary purpose of which is
to provide for the safety of individuals.
(c) An offense under this section is a Class A
misdemeanor, except that the offense is a state
jail felony if the actor has previously been
convicted under this section.
(d) In this section, "emergency" means a
condition or circumstance in which any
individual is or is reasonably believed by the
individual making a call or requesting
assistance to be in fear of imminent assault or
in which property is or is reasonably believed
by the individual making the call or requesting
assistance to be in imminent danger of damage or
destruction.
Added by Acts 2001, 77th Leg., ch. 690, Sec. 1,
eff. Sept. 1, 2001. Amended by Acts 2003, 78th
Leg., ch. 460, Sec. 1, eff. Sept. 1, 2003; Acts
2003, 78th Leg., ch. 1164, Sec. 1, eff. Sept. 1,
2003.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 331 (H.B. 1972),
Sec. 7, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 331 (H.B. 1972),
Sec. 8, eff. September 1, 2013.