NO. 07-10-00116-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JANUARY 19, 2011

JASON GOMEZ, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B17957-0902; HONORABLE EDWARD LEE SELF, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION Appellant, Jason Gomez, was convict ed of harassment of a public servant, 1 enhanced by allegations of two prior felony convictions. 2 The jury found appellant guilty and the enhancement allegations true. The ju ry assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 60 years. Appellant appeals contendi ng that the evidence was insufficient and

1 See T EX

. P ENAL C ODE A NN . § 22.11(a)(2) (West Supp. 2010).

2 See Id . § 12.42(d) (West Supp. 2010).2 that the sentence was grossly disproportionate. We revers e based on the conclusion that the evidence was insufficient. Factual and Procedural Background
On December 10, 2008, Pl ainview police officer Timo thy De Leon responded to a reported domestic dispute at a residence in Pl ainview. Upon arriving on the scene, De Leon observed appellant standing in the front yard of t he residence arguing with another man. The other man tu rned out to be appellant’s father. Additiona lly, De Leon noticed a glass door appeared to be broken and appell ant’s arm appeared to be cut. De Leon called for an ambulance and approached appellant. While De Leon called for an ambulance, appellant’s father went back inside the residence. De Leon attempted to interview appellant about what had occurred. However, appellant refused to talk to De Leon and attempted to go back in the house. De Leon told appellant to stay where he was and agai n attempted to question him about what had happened at the residence. Again, appellant ignored the request to stay outside and attempted to go back into the house. De Le on positioned himself between the house and appellant and again adv ised appellant to stay outside. Appellant then attempted to push De Leon as ide and go into the house. Once again, De Leon positioned himself between the house and appellant, and De Leon indicated that he was going to arrest appellant for assault. Appellant tried to push by De Leon once more. By this time, a second Plainvie w police officer had a rrived on the scene, and this officer fired his taser at appellant, c ausing appellant to collapse to the ground. As De Leon was taking appellant into cust ody, De Leon realized that he had blood on3 his face and uniform. Ba sed on appellant’s encounter with De Leon app ellant was indicted for harassment of a public servant.
At trial, De Leon testifi ed about his encounter with appel lant. Additionally, the State introduced a series of photographs that depicted the inju ries to appellant on the night in question. These pi ctures demonstrated that appellant was bleeding significantly at the time of his encounter with De Leon. Based upon this evidence, the jury found appellant guilty. Appellant appeals contendi ng that the evidence is legally and factually insufficient to demonstrate that appellant caused De Leon to come into contact with his blood with the intent to ass ault. Additionally, appellant contends that the punishment assessed is grossly disproportionate. We agree with appellant t hat the evidence is insufficient and reverse and render a judgment of acquittal. Evidentiary Sufficiency

As an initial consid eration, we observ e that appellant's appea l contends that the evidence is both legally and factually insuffi cient. Appellant's brief was prepared and filed before the Texas Court of Criminal Appeals i ssued its opinion in Brooks v. State , No. PD-0210-09, 323 S.W. 3d 893, 2010 Tex.Crim.App. LEXIS 1240, at *25-*26 (Tex.Crim.App. Oct. 6, 2010), wherein the court ruled that there is no distinction between a claim of legal as opp osed to factual insufficiency of the evidence. Further, the court expressly overruled Clewis v. State , 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported applicat ion to factual sufficiency questions. Id . at *57. The court appears to urge the reviewing court to appl y a more rigorous application of the4 sufficiency test set fort h in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See id. at *58. Therefore, we will review appellant's claims of evidentiary sufficiency under the standard of review set forth in Jackson . See 443 U.S. at 319.

Standard of Review In assessing the sufficiency of the evidenc e, we review all the evidence in the light most favorable to the verdict to deter mine whether any rational trier of fact could have found the essential elem ents of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Ross v. State , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We measure the legal sufficiency of the evidenc e against a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when reviewing all of the evidence under the Jackson standard of review, the ultimate question is whether the jury’s finding of guilt was a rational finding. See Brooks , 2010 Tex.Crim.App. LEXIS 1240, at *37 (discussing Judge Coch ran’s dissent in Watson v. State , 204 S.W.3d 404, 448-50 (Tex.Crim.A pp. 2006), as outlining the proper application of a single evi dentiary standard of review). 3
Analysis In order to prove appellant guilty of the offense of haras sment of a public servant, the State had to prove:

3 We note that this Court has at times quoted Moreno v. State , 755 S.W.2d 866, 867 (Tex.Crim.App. 1988), for the proposition t hat we had to uphold the verdict of the jury unless it was irrational or unsupported by more than a mere modicum of evidence. We view such a statement, insofar as a mo dicum of evidence being sufficient evidence, as contrary to a rigorous application of the Jackson standard of review urged by the Court in Brooks

.5 1. Appellant 2. on or about December 10, 2008, 3. with intent to assault, harass, or alarm 4. cause Timothy De Leon 5. a person appellant knew to be a public servant, a peace officer 6. to contact the blood of appellant 7. and De Leon was then and there lawfully discharging an offici al duty, to-wit: attempting to detain appellant. Appellant contends that the evi dence is insufficient as to the mens rea element of the offense. Specifically, appell ant contends that the statute requires that the State prove that appellant caused De Leon to contact t he blood with intent to assault, harass or annoy. The Texas Penal Code provi des that there are four culpable mental states in our penal laws. See T EX

. P ENAL C ODE A NN . § 6.02(d) (West Supp. 2010). 4 Those are intentional, knowing, reckless, and criminally negligent. See id . In assessing how the

mens rea required by a statute is tailored to determine the type of offense involved, an assessment must be made as to the nature of the offense. The categories are natureof-the-conduct offense, a circumstance-surroundi ng the conduct offense, or a result-ofconduct offense. See Hill v. State , 265 S.W.3d 539, 541 (Houston [1 st Dist.] 2008, pet. ref’d).

4 Further reference to the Te xas Penal Code will be by reference to “section ___” or “§ ___.”6 While discussing result-of-conduct cases, Hill points out that a majority of assault cases and homicide offenses are result-of- conduct cases and as such do not specify the nature of condu ct barred. Id . at 542. Further, the nature of the conduct is inconsequential to the commission of the crime, rather, what matters is that the conduct is done with the required cul pability to effect the result that the Legislature had specified. Id

. Section 22.11 uses the phras e “with intent to assaul t, harass or alarm” when describing the actions of a perpet rator of this type of assault. § 22.11(a). In contrast, other sections in the Texas Penal Code ch apter dealing with assaultive offenses use phrases such as “intentionally, knowingly, or recklessly,” or “intentionally or knowingly.” See § 22.01(a)(1)-(3). Section 6.03(a) states that: A person acts intentionally, or with int ent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id . § 6.03 (West 2003).
Thus, when the analysis of the Hill opinion is applied to the allegations and facts of this case, it is apparent that the as sault charged is a result-orien ted offense. This is so because the accused must, with intent to a ssault, harass, or alarm the complainant, cause bodily fluids to actually contact the complainant. See Herrera v.State , 915 S.W.2d 94, 97 (Tex.App.—San Antonio 1996, no pet.) (citing McQueen v. State , 781 S.W.2d 600, 603 (Tex.Crim.App. 1989 )). In construing this st atute, the Corpus Christi Court of Appeals so found and st ated, “In other words, the State was required to prove7 that [appellant] (1) intended to cause urine to contact Martinez, and (2) intended to harass, alarm or annoy Martinez.” Wyatt v. State , No. 13-07-467-CR, 2008 Tex.App. LEXIS 8080, at *8 (Tex.App .—Corpus Christi, Oct. 23, 2008, no pet.) (mem. op. on reh’g., not designated for publication). Wyatt involved a situation in which the inmate threw urine from a cup onto a corrections guard. Id . at *3. While we agree with the result reached in the Wyatt case, we do not subscribe to our sister court’s analysis of the intent requirement.

The evidence in this record shows that when De Leon a rrived on a domestic disturbance call, appella nt had already been injured. De Leon testified that one of the primary issues in dealing with this type of disturbance call was to keep the parties separated. Therefore, when De Leon saw that appe llant’s father had gone inside, he made the decision to keep appellant outside. Because appellant wanted to return inside the house, there was a conf rontation between appellant and De Leon. The assault occurred when appellant attemp ted on two or more occasions to go past De Leon into the house. De Leon’s testimony reflected that appellant attempted to push and shove De Leon out of the way so that he could go inside. Appellant wa s bleeding extensively before he ever pushed or shov ed De Leon. No one testified that appellant made any attempt to collect the blood and then throw it on De Leon. Nor did anyone testify that appellant verbally threatened to throw or wipe blood on De Leon. At most, the testimony revealed that the blood got on De Leon when appellant attempted to go past De Leon to get in the house. That appel lant’s pushing and shoving of De Leon amounted to an assault is not the question. There was a completed assault the first time appellant shoved and pushed De Leon. There is si mply no evidence that appellant8 intended to assault, harass or alarm De Leon by causing the blood to contact De Leon. Therefore, the evidence is insufficient to sustain the judgment of the tr ial court. See Herrera , 915 S.W.2d at 97. App lication of the principles set forth in Jackson , 443 U.S. at 319, and Ross v. State , 133 S.W.3d at 620, lead to the inescapable conclusion that no rational jury could have found the ess ential elements of the offense beyond a reasonable doubt. Appellant’s first issue is sustained. The State vigorously argues that the evidence is sufficient. To support this position, the State cites this court to Campbell v. State , No. 14-04-0227-CR, No. 14-04- 0228-CR, 2005 Tex.App. LEXIS 7701 (Tex.App.—Houston [14 th Dist.] Sept. 20, 2005, pet. ref’d) (mem. op., not designated for publication), and Jones v. State , No. 01-02- 0057-CR, 2002 Tex.App. LEXIS 4611 (Tex.App.—Houston [1 st Dist.] June 27, 2002, pet. ref’d) (not designated for publication), fo r the proposition that the jury can infer intent from an appellant’s acts, words, or conduct surrounding the incident. However, each of the cases cited for such inference are cases where the mens rea included additional elements, such as knowingly in the Campbell case and knowingly or recklessly in the Jones case. Therefore, the jury was able to consider the conduct surrounding the event and there was testimony that supported its consideration. In Campbell , the testimony revealed that appellant knew one officer was holding on to the door handle of appellant’s car and another was parti ally in appellant’s car as appellant attempted to flee into the face of oncoming traffic. Campbell , 2005 Tex.App. LEXIS 7701, at * 7, * 8. In Jones , appellant contested the suffici ency of the evidence to show that he intentionally, knowingly, or recklessl y caused bodily injury to the victim. Jones , 2002 Tex.App. LEXIS 4611, at *3. The evi dence showed that the victim was standing9 directly in front of appellant when appellant shoved a shopping ca rt directly at the victim, resulting in a knot on the victim’s leg with br oken skin and bleeding. Id . Appellant in Jones claimed that he pushed the cart to get aw ay but never intended to hurt the victim. Id . at *4. Because the required mens rea was reckless, there was sufficient proof that appellant was aware his conduct would caus e the victim physical pain, hence bodily injury. Id . at *7. As can be seen by t he above recitations, the Campbell and Jones cases are distinguishable from the facts presented to this Court. Both cases examine different mens rea from the instant case , with lower thresholds of culpability and more significant testimony for the ju ry to infer t hat the required mens rea was present. Because of our holding r egarding the sufficiency of t he evidence, we need not reach appellant’s second issue.

Conclusion The judgment of the trial court is re versed, and a judgment of acquittal is rendered. Mackey K. Hancock Justice

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