IN THE COURT OF APPEALS FOR THE

SEVENTH DISTRICT OF TEXAS

ADAM CLEMENTSON, § 

APPELLANT § 

 § 

 § 

V. § NO. 07-14-00175-CR

 § 

THE STATE OF TEXAS, § 

APPELLEE § 

APPEALED FROM CAUSE NUMBER 1274535D IN THE 396TH 

JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE 

HONORABLE GEORGE GALLAGHER, PRESIDING.

§ § §

STATE’S BRIEF

§ § §

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR

Assistant Criminal District Attorney

Chief, Post-Conviction

The State requests oral argument JOHN E. MESKUNAS

only if this Court grants oral Assistant Criminal District Attorney

argument to Appellant. Tim Curry Criminal Justice Center

 401 W. Belknap 

 Fort Worth, Texas 76196-0201

(817) 884-3109

FAX (817) 884-1672

State Bar No. 24055967

COAAppellateAlerts@TarrantCountytx.gov

WILLIAM VASSAR

Assistant Criminal District Attorney

ACCEPTED

07-14-00175-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

2/19/2015 1:17:57 PM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 2/19/2015 1:17:57 PM VIVIAN LONG CLERK
TABLE OF CONTENTS

PAGE

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

THE CASE IN BRIEF...............................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ...............................................2

STATEMENT OF FACTS ........................................................................................3

OUTLINE OF STATE’S RESPONSES....................................................................5

STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR........................6

ARGUMENT...................................................................................................7

I. The complained-of presumption was not mandatory..................................7

A. Under Texas law, an appellate court construes any statutory

 presumption as permissive if the trial court incorporated the

 language of Section 2.05 of the Texas Penal Code in the

 jury charge ............................................................................................7

B. The jury charge incorporated the language of Section 2.05

 of the Texas Penal Code.......................................................................9

II. Witness testimony along with the video of the skirmish provided

 enough evidence to allow the jury to make the constitutionally-valid

 presumption that Appellant knew the uniformed officer he

 pushed into the window was a public servant ........................................11

III. Alternatively, inclusion of the presumption was harmless ....................14

CONCLUSION AND PRAYER .............................................................................17

i
CERTIFICATE OF COMPLIANCE.......................................................................18

CERTIFICATE OF SERVICE ................................................................................18

ii
INDEX OF AUTHORITIES

CASES PAGE(S)

Alexander v. State,

757 S.W.2d 95 (Tex. App.—Dallas 1988, pet. ref'd).........................................14

Bellamy v. State,

742 S.W.2d 677 (Tex. Crim. App. 1987) ....................................................passim

Fuentes v. State,

991 S.W.2d 267 (Tex. Crim. App. 1999) ...........................................................14

Garrett v. State,

220 S.W.3d 926 (Tex. Crim. App. 2007) ...........................................8, 11, 14, 15

Hutch v. State,

922 S.W.2d 166 (Tex. Crim. App. 1996) ...........................................................15

Stevens v. State,

234 S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet.)...................................13

Ulster County Court v. Allen,

442 U.S. 140, 157, 99 S. Ct. 2213, 2224 (1979) ................................................11

Willis v. State,

790 S.W.2d 307 (Tex. Crim. App. 1990) .................................................8, 10, 11

STATUTES

TEX. PENAL CODE § 2.05(d) (West 2011) ............................................................9, 14

TEX. PENAL CODE § 22.01(b)(1) (West 2011) ...........................................................7

TEX. PENAL CODE § 22.01(d)...............................................................................7, 14

TEX. R. APP. P. 39.1(b), (c), (d)..................................................................................2

iii
IN THE COURT OF APPEALS FOR THE

SEVENTH DISTRICT OF TEXAS

ADAM CLEMENTSON, §

APPELLANT §

 §

 §

V. § NO. 07-14-00175-CR

 §

THE STATE OF TEXAS, §

APPELLEE §

APPEALED FROM CAUSE NUMBER 1274535D IN THE 396TH

JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE 

HONORABLE GEORGE GALLAGHER, PRESIDING.

TO THE HONORABLE COURT OF APPEALS:

THE CASE IN BRIEF

THE CHARGE .............................................ASSAULT OF A PUBLIC SERVANT

(CR 7; RR 3:6)

THE PLEA.......................................................................................... NOT GUILTY

(CR 126, 141; RR 3:6)

THE VERDICT (JURY)...............................................................................GUILTY

(CR 139, 141; RR 4:81-82)

THE PUNISHMENT (COURT)............ 5 YEARS TDCJ, SUSPENDED 2 YEARS

(CR 141; RR 5:6)

1
STATEMENT REGARDING ORAL ARGUMENT

Appellant complains the trial court reversibly erred by including a 

mandatory presumption in its jury charge. Because this issue has been 

authoritatively decided by the Texas Court of Criminal Appeals, because the facts 

and legal arguments are adequately presented in the briefs and record, and because 

oral argument would not significantly aid the decisional process, the State requests 

oral argument only if this Court grants oral argument to Appellant. See TEX. R.

APP. P. 39.1(b), (c), (d) (West 2010).

2
STATEMENT OF FACTS

Appellant’s lifelong friend, Gareth Reese, was visiting Fort Worth from 

England. RR 4:13-14. During Reese’s visit, the men decided to go out on the 

town and visit a few bars. RR 4:16. After several drinks, the men ended up at 

“Pete’s Piano Bar.” RR 4:16, 25-27.

Sergeant Boyd Latham and Officer Gary Hawley were working as security 

at “Pete’s” that night. RR 3:83-84. Both officers were wearing their Fort Worth 

Police Department uniforms. RR 3:35, 57, 68-69. Latham chatted with Appellant 

as Appellant and Reese entered the bar. RR 3:66. Appellant and Reese went 

upstairs and had more drinks. RR 4:26-27. Later, the manager of “Pete’s”, John 

Guidry, summoned Latham and Hawley upstairs to deal with an aggressive patron; 

it was Reese. RR 3:85-86. 

The officers conversed with Appellant and Reese briefly. RR 3:27, 4:28-29; 

SX 1(part 2). Hawley decided Reese was intoxicated. RR 3:86. Hawley twice 

instructed Reese to leave, but Reese refused. RR 3:86. Hawley took control of 

Reese and escorted him toward the exit. RR 3:86-87; SX 1 (part 2). Latham 

followed. SX 1(part 2).

3
As Hawley escorted Reese toward the exit, Reese jerked his arm free. RR 

3:90. Because Reese tried to thwart Hawley’s attempt to remove him from the bar, 

Hawley took Reese to the floor to arrest him for public intoxication. RR 3:90, 110, 

112. Latham moved to assist with the arrest. RR 3:59. Appellant watched the 

ensuing struggle and then attacked, pushing Latham into a window and injuring 

him. RR 3:14-15, 66; SX 1 (parts 1, 2).

4
OUTLINE OF STATE’S RESPONSE

State’s reply to Appellant’s sole point of error

Appellant complains the trial court erred by including an unconstitutional 

mandatory presumption in its charge to the jury. Appellant’s Brief 21. 

Alternatively, Appellant complains the evidence does not rationally connect 

Latham’s wearing of his police uniform to the presumption that Appellant knew

Latham was a public servant because no evidence exists showing Appellant 

actually saw the uniform. Appellant’s Brief 15-17.

When, as here, the jury charge incorporates the language of Section 2.05 of 

the Texas Penal Code, any statutory presumption is permissive rather than 

mandatory. And, the evidence rationally connected the predicate and presumptive 

facts. Alternatively, the trial court’s inclusion of the presumption was harmless.

5
STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR

Appellant’s contention

Appellant complains the trial court erred by including an unconstitutional 

mandatory presumption in its charge to the jury. Appellant’s Brief 21. 

Alternatively, Appellant complains the evidence is insufficient to connect 

Latham’s wearing of his police uniform to the presumption that Appellant knew 

Latham was a public servant because no evidence exists showing Appellant 

actually saw the uniform. Appellant’s Brief 15-17.

State’s reply

 When, as here, the jury charge incorporates the language of Section 2.05 of 

the Texas Penal Code, any statutory presumption is permissive rather than 

mandatory. And, the evidence sufficed to allow the jury to make the 

constitutionally-valid presumption that Appellant knew Latham, the uniformed 

officer he pushed into the window, was a public servant. Alternatively, the trial 

court’s inclusion of the presumption was harmless.

6
Argument

I. The complained-of presumption was not mandatory.

A. Under Texas law, an appellate court construes any statutory 

presumption as permissive if the trial court incorporated the 

language of Section 2.05 of the Texas Penal Code in the jury 

charge.

The State charged Appellant with assault of a public servant. CR 7. Assault 

is normally a misdemeanor; however, if an actor commits assault against 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, the assault is elevated to a third 

degree felony. TEX. PENAL CODE § 22.01(b)(1) (West 2011). If the public servant 

wore his uniform, the actor is presumed to have known the person assaulted was a 

public servant. TEX. PENAL CODE 22.01(d). 

Appellant complains that Section 22.01 of the Texas Penal Code contains an 

unconstitutional mandatory presumption; therefore, the trial court erred by 

including the presumption in its charge to the jury. Appellant’s Brief 21. 

“Mandatory presumptions are unconstitutional because they relieve the State of the 

burden of proving every element of the offense beyond a reasonable doubt.” 

7
Garrett v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007). A permissive 

presumption, on the other hand, remains constitutional because it “allows, but does 

not require, the trier of fact to infer the elemental fact or ultimate fact from the 

predicate evidentiary fact or facts.” Id. at 931 n.5 (quoting Willis v. State, 790 

S.W.2d 307, 310 (Tex. Crim. App. 1990)).

All statutory presumptions in Texas are construed as permissive as long as 

the jury charge adequately incorporated Section 2.05 of the Texas Penal Code. 

Bellamy v. State, 742 S.W.2d 677, 682 (Tex. Crim. App. 1987). Texas Penal Code 

Section 2.05 provides:

if the existence of the presumed fact is submitted to the 

jury, the court shall charge the jury, in terms of the 

presumption and the specific element to which it applies, 

as follows:

(A) that the facts giving rise to the presumption 

must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a 

reasonable doubt the jury may find that the 

element of the offense sought to be presumed 

exists, but it is not bound to so find;

(C) that even though the jury may find the 

existence of such element, the state must prove 

8
beyond a reasonable doubt each of the other 

elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the 

existence of a fact or facts giving rise to the 

presumption, the presumption fails and the jury 

shall not consider the presumption for any purpose.

TEX. PENAL CODE § 2.05 (West 2011). 

B. The jury charge incorporated the language of Section 2.05 of the 

Texas Penal Code.

The charge contained the presumption found in Section 22.01 of the Texas 

Penal Code. CR 130. That is, the jury was instructed that Appellant “is presumed 

to have known the person assaulted was a public servant if he was wearing a 

distinctive uniform or badge indicating his employment as a public servant.” In 

the next paragraph, the jury was instructed relative to this presumption as follows: 

(A) that the facts giving rise to the presumption must 

be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable 

doubt the jury may find that the element of the offense 

sought to be presumed exists, but it is not bound to so 

find;

(C) that even though the jury may find the existence of 

such element, the state must prove beyond a reasonable 

9
doubt each of the other elements of the offense charged; 

and

(D) if the jury has a reasonable doubt as to the 

existence of a fact or facts giving rise to the presumption, 

the presumption fails and the jury shall not consider the 

presumption for any purpose

CR 130-31.

Appellant concedes the jury charge incorporated the language of Section

2.05 of the Texas Penal Code. Appellant’s Brief 13; compare TEX. PENAL CODE

§2.05 and CR 130-31(trial court’s charge to the jury). However, Appellant argues 

that the use of the phrase “is presumed” makes the presumption mandatory 

regardless of the incorporation of Section 2.05. The Texas Court of Criminal 

Appeals addressed this very issue in Willis v. State, 790 S.W.2d 307, 310-12 (Tex. 

Crim. App. 1990).

In Willis, the appellant argued, as Appellant argues here, that regardless of 

the incorporation of Section 2.05, the presumption in the jury charge was 

unconstitutionally mandatory. See Willis, 790 S.W.2d at 310-11. In overruling the 

appellant’s complaint, the Texas Court of Criminal Appeals held that 

“notwithstanding the improper introductory language in the charge under 

consideration, [because of the incorporation of the language of Section 2.05] a 

10
reasonable juror would understand that he or she was free to accept or reject the 

presumption making it a permissive presumption.” Id. at 311.

The charge in the present case incorporated the same language making the 

presumption permissive as that in Willis. Compare Willis, 790 S.W.2d at 311 and

CR 130-31. Therefore, the presumption in this case is permissive, and the trial 

court did not err by including the permissive instruction in its charge to the jury. 

See Garrett, 220 S.W.3d at 931 n.5 (permissive presumptions not 

unconstitutional); Bellamy, 742 S.W.2d at 682 (presumption is deemed permissive 

when jury charge incorporates language of Texas Penal Code Section 2.05). 

Therefore, this Court should overrule Appellant’s point of error.

II. Witness testimony along with the video of the skirmish provided enough 

evidence to allow the jury to make the constitutionally-valid 

presumption that Appellant knew the uniformed officer he pushed into 

the window was a public servant.

In Ulster County Court v. Allen, the United States Supreme Court 

determined that when reviewing a permissive presumption the party challenging 

the constitutional validity of the presumption must prove that it is invalid “as 

applied to him.” 442 U.S. 140, 157, 99 S. Ct. 2213, 2224 (1979). An appellate 

court judges the validity of the application of a permissive presumption by 

11
examining the facts of the particular case and determining whether it can be said 

with substantial assurance that a rational trier of fact could make the connection 

permitted by the presumption. Bellamy, 742 S.W.2d at 682–83. This means a jury 

cannot simply make a permissive presumption because of the existence of the 

predicate fact; there must be a rational connection between the predicate fact and 

the presumptive fact. Id. 

Appellant complains that the jury’s application of the permissive 

presumption was not constitutionally valid because conditions in the bar (lighting, 

noise, distractions, etc.) made it possible that he did not see the police uniforms; 

therefore, there was no rational connection between Latham’s wearing of his 

uniform and the presumption that Appellant knew Latham worked as a public 

servant. Appellant’s Brief 15-17. The jury received the following evidence 

connecting the predicate and presumptive facts:

• Latham wore his police uniform while working at the bar that night. RR 

3:35, 57, 68-69.

• Latham sat at the entrance of the bar. RR 3:84.

• Appellant spoke with Latham when Appellant entered the bar that night. 

RR 3:66.

12
• Upstairs, Latham and Hawley spoke with Appellant and Reese. RR 3:37

4:28-29; SX 1 (part 1).

• Latham spoke with Appellant for nearly a minute before Hawley escorted 

Reese toward the exit. RR 3:37 4:28-29; SX 1 (part 1).

• Bar manager, John Guidry, testified that Appellant watched the 

altercation develop between Reese and the uniformed police officers 

before attacking Latham. RR 3:13-14.

• On the video, Appellant watches Hawley and Latham escorting Reese

toward the exit and attacks Latham approximately seven seconds after 

speaking with Latham. SX 1 (part 2: 1:08-:15).

• On the video, Appellant appears to be looking directly at Latham when 

he attacks him. SX 1 (part 1, 2).

• Appellant pushed Latham into the window. RR 3:19, 41; SX 1 (part 1).

• On the video, Appellant’s attack on Latham took approximately six 

seconds. See SX 1(part 2: 1:15-:21).

• During the attack, bar employee, Kelly Davis, and other employees tried, 

unsuccessfully, to pull Appellant off of Latham. RR 3:19, 38, 41; SX 1 

(part 1).

• In the video, Appellant is facing Latham while pushing him. SX 1 (parts 

1, 2).

And, though Appellant denied knowing Latham’s status as a police officer, the jury

was free to disbelieve him. RR 4:21-22, 28-29, 32-34, see Stevens v. State, 234 

S.W.3d 748, 780 (Tex. App.—Fort Worth 2007, no pet.) (jury, as sole judge of 

13
credibility of witnesses, is free to believe or disbelieve all or any part of witness’

testimony); Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (when 

faced with conflicting evidence appellate court presumes jury, as sole trier of fact, 

resolved any conflict in favor of the prosecution).

Based on the record as a whole, it can be said with substantial assurance that 

the predicate and presumptive facts are rationally connected. As such, the jury’s

permissive presumption was constitutionally valid as applied to the facts of this 

case, and this Court should overrule Appellant’s complaints. See TEX. PENAL 

CODE §§ 2.05, 22.01(d); Bellamy, 742 S.W.2d at 682–83 (permissive presumption 

constitutionally valid when some evidence connects predicate and presumptive 

facts).

III. Alternatively, inclusion of the presumption was harmless.

Error relating to a mandatory presumption in a jury charge is subject to 

harmless error review. Garrett, 220 S.W.3d at 931. When inquiring whether a 

mandatory presumption caused harm where the error was preserved, the relevant 

inquiry is whether a reasonable juror “could have given the presumption 

conclusive or persuasion-shifting effect.” Alexander v. State, 757 S.W.2d 95, 100 

14
(Tex. App.—Dallas 1988, pet. ref'd). Should this court find the trial court 

committed error in its jury charge by including an unconstitutionally-mandatory 

instruction, the error was harmless.

Immediately following the complained–of language, the jury charge 

included language instructing the jury that they were allowed (rather than required) 

to make the presumption if certain circumstances existed. CR 130-31 (“[I]f such 

facts are proven beyond a reasonable doubt the jury may find that the element of 

the offense sought to be presumed exists, but it is not bound to so find.”); see

Garrett, 220 S.W.3d at 930 (Section 2.05 instruction “effectively converts a 

mandatory presumption into a permissive presumption”). The charge also 

informed the jury that even if these circumstances existed, they were free to 

disregard the presumption should they so choose. Id. The record does not contain 

any evidence that the jury did not follow this instruction. See Hutch v. State, 922 

S.W.2d 166, 170 (Tex. Crim. App. 1996) (appellate court presumes jury

understood and followed the court’s charge absent evidence to the contrary). 

Further, the evidence of Appellant’s guilt (testimony and video showing Latham 

was in his Fort Worth Police Department uniform and Appellant spoke to Latham 

15
seconds before attacking him) was overwhelming. See RR 3:13-14, 35, 37, 57, 66, 

68-69; 4:28-29; SX1.

Because the charge informed the jury it was free to ignore the presumption, 

and because the State presented overwhelming evidence of Appellant’s guilt, the 

jury would have found Appellant guilty beyond a reasonable doubt without the 

complained-of presumption. As such, any error in the inclusion of the complainedof presumption was harmless, and this Court should overrule Appellant’s point of 

error.

16
CONCLUSION AND PRAYER

Because the jury charge incorporated the language of Section 2.05 of the 

Texas Penal Code, any statutory presumption is permissive rather than mandatory.

Bellamy, 742 S.W.2d at 682. Further, because the record evidence sufficed to 

allow the jury to rationally connect the predicate and presumptive facts, the jury’s

application of the presumption was constitutionally valid. Id. at 682–83. 

Alternatively, any error in the inclusion of the complained-of instruction was 

harmless. Accordingly, the State prays this Court will overrule Appellant’s 

complaints and affirm the judgment of the trial court.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR

Assistant Criminal District Attorney

Chief of Post-Conviction

 /s/ John E. Meskunas

JOHN E. MESKUNAS

Assistant Criminal District Attorney

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

17
(817) 884-3109

FAX (817) 884-1672

State Bar No. 24055967

COAAppellateAlerts@TarrantCountytx.gov

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of TEX. R. APP. P. 9.4(i) because it contains 2,671 words, 

excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1), as computed by the 

computer software used to prepare the document.

 /s/ John E. Meskunas

JOHN E. MESKUNAS

CERTIFICATE OF SERVICE

A true copy of the State’s brief has been electronically served on opposing 

counsel, the Hon. Wm. Reagan Wynn, rwynn@kearneywynn.com, Kearney/Wynn, 

One Museum Place, 3100 W. 7th St., Ste. 420, Fort Worth, TX 76107, on this, the 

19th day of February, 2015.

 /s/ John E. Meskunas

JOHN E. MESKUNAS

18