COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

GUI L L ERMO URQUI Z A, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-08-00016- CR

Appea l from the 199th J udicial District Court of Collin C ounty , Texas (TC#199-81267-06)

O P I N I O N Guillermo Urquiza was c onvicted by a jury of ag g ravated assault on a public se rvant. The ve rdict included a

deadly wea pon finding , and the jury

sentenc ed Appe llant to 5 y ear s’ imprisonment. Appellant prese nts three issues for our re view. I

n I ssue One, A

ppellant contends the trial cour

t committed rever sible err or by mis-definingthe applica

ble mental states f

or ag g rava ted assault. In I ssue Two, Appe llant challeng es the leg al and f actua l sufficienc y

of the evidenc e; spec ifically

the jury ’s deter

mination that he was a

war e Jesus Garcia

was a public
serva nt when he ope ned fire . In I ssue Thre e, Appe llant arg ues the trial c ourt err ed by denying his motion to s uppress ba sed on the S.W.A.T. teams’ fa ilure to “knoc k and annouc e” the mselves prior to enter ing his home. In April 2006, Appellant wa s the subject of a McKinney , Texas Poli ce D epar tment investigation. McKinney detec tives believed A

ppellant was se lling illeg al fire arms out of his residenc e. A se arc h war

rant a uthorizi ngoffice rs to sear ch Appe llant’s residenc e for anyfirea

rms, ammunition, and other re lated items, was obtaine d on April 12. The wa rra nt was executed by

the McKinne y

Police Depa

rtment S.W .A.T. team. Two teams of S.W.A.T. office rs enter ed Appe llant’s house with the help of a door ram and two diversionar

y “fla sh-bang ” devic es. When Off icer J esus Gar cia e ntere d Appellant’s be droom, he and Appe llant exchang ed gunfire. A ppellant was se vere ly

wounded in the f

ire-f ight. In I ssue One, A

ppellant asser

ts the jury char g e incor

rec tly define d the terms “intentional” and “know ingly ,” ther eby permitting the jury

to convict Appellant ba sed on a va riant of the char g e as state d in the indictment. The standar d of re view for char g e er ror is depe ndant on whether the def endant pr operly

objected to the a lleg ed er ror. Mann v. State , 964 S.W .2d 639, 641 (Tex.Crim.App. 1998). When, as is the case here , the def endant f ailed to object to the alleg ed er ror, r ever sal is not required unle ss the harm is so eg reg ious that the defe ndant was denied a fair a nd impartial trial, or the de fenda nt suffer ed egreg ious harm as a result. Abdnor v. State , 871 S.W .2d 726, 732 (Tex.Crim.App. 1994). “Egreg ious harm” is demonstrated, “whe never

a re viewingcourt find that the c ase f or convic tion or punishment was ac tually made clea rly and sig nificantly

more pe rsuasive by

the er ror.” Saunders v. State , 817 S.W .2d 688, 692 (Tex.Crim.App. 1991). In any jury char g e re view, howe ver, our first inquiry

is to determine whether the cha rg e wa s err oneous. See Abdnor , 871 S.W .2d at 731. Appellant maintains that the de finition of “knowing ly ” provide d in the abstrac t portion of the cha rg e per mitted the jury

to convict Appellant of

a “nature of the result” ty pe of a g g ravated assault, rather than a

“natur e of the conduct” ty pe of a ssault, as was de fined in the indictment. The Te x as Penal Code pr ovides three differ ent way s to commit an “assault:” (1) intentionally , knowing ly , or re cklessly caus[ing] bodily

injury to another
-2-. . .

(2) intentionally

or knowing ly

threaten[ing] another with imminent bodily injury . . .; or (3) intentionally

or knowing ly

caus[ing] phy sical conta ct with another when the per son knows or should rea sonably believe tha

t the other will reg ard the contac t as offe nsive or provoc ative. See T E X .P E N A L C O D E AN N . § 22.01(a) (Ve rnon Supp. 2009). An “a g g ravated assault” is c ommitt ed whe n the offe nder c ommits an assa ult by any of the means de fined in Section 22.01, and dur ing suc h commission the offende r: (1) c auses se rious bodily injury to another; or ( 2) uses or e x hibits a deadly wea pon duringthe commission of the assault. SeeT E X .P E N A L C O D E AN N . § 22.02(a)
. The indictment cha

rg ed Appe llant with an ag g ravated assault by threat. This is a “nature

1 of conduc t” offe nse which ha s no require d result. See H all v. State , 145 S.W .3d 754, 758 (Tex.App.--Te x arka

na 2004, no pet.) . The de finition of the offe nse is satisfied if the a ccuse d intentionally

or knowing ly

eng ag ed in the prohibited c onduct-- thr eate ning w ith imm inent bodily injury , ag g ravated by

makingthe threat with a deadly wea pon. See G uzman v. State , 988 S.W .2d 884, 887 (Tex.App.--Corpus Christi 1999, no pet.). Ac cording ly , the def initions in the char g e
conce rningthe applica

ble mental states should likewise be limit ed to the natur e of the conduct. Coleman v. State , No. 08-05-00258- CR, 2007 W L 853116, at *4 (Te x .App.--E l Paso Mar. 22, [Appellant] on or about the 13th da y of April A.D. 2006 . . . did then a nd there 1 intentionally

and knowing ly

threa ten J esus Gar cia with imminent bodily injury by pointing a firea rm and shootinga fire arm at J esus Gar cia, a nd did then and ther e use a nd exhibi t a dea dly wea pon, to-wit: a fire arm, during the commission of said assault, and [Appellant] did then and there know that the said Jesus Garc ia was the n and ther e a public se rvant, to-wit: a City of McKinney

police off

icer , and that the sa id J esus Gar cia wa s then and ther e lawf ully discharg ing an off icial duty , to-wit: ex ecution of a war rant . . . .
-3-2007, no pet.)(not de signated for publication).

The a bstract por

tion of the cha

rg e instructed the jury

that; “[a] person acts knowing ly , or with knowledg e, with re spect to a r esult of his conduct whe n he is awa re that his conduct is
rea sonably

cer tain to cause the re sult.” By failingto limi t the definition of “knowing ly ” to the nature of the c onduct as c harg ed in the indictment, the cour t erre d as the Appe llant argues. See Cook v. State , 884 S.W .2d 485, 491 (Tex.Crim.App. 1994). This does not end our inquiry howeve r, as the e rror

must have ca

use Appe llant eg reg ious harm to serve as a ba sis for re versa l. See Abdnor , 871 S.W .2d at 732. A re view of the char g e as a whole demonstrates that despite the incorre ct def

inition i n the cha

rg e’s a bstract, in the a

pplication para g raph the terms intentionally and knowing ly

clea rly modified the nature of Appe llant’s conduct in thre ateningJ esus Gar cia with immi nent bodily

injury by the use of a

firea rm. Ther e is no ref

ere nce to a

ny other c onduct element. B eca

use the a pplication para g raph c orre ctly instructed the jury , the er ror in the a

bstract does not constitute eg reg ious harm. Medina v . State , 7 S.W .3d 633, 640 (Tex.Crim.App. 1999). I ssue One is ove rruled. In I ssue Two, Appe llant challeng es the leg al and f actua l sufficienc y

of the e vidence supporting the conviction. In a leg al suffic iency revie w, we must consider all of the e vidence in a lig ht most favorable to the verdic t, and deter mine whether

a re asonable minded juror could have f ound the essential e lements of the c harg ed cr ime wer e prove n beyond a re asonable doubt. Jack son v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L .Ed.2d 560 (1979); Hooper v. State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007). We must defer to “‘ the re sponsibili ty of the trier of fac t to fairly

resolve c onflicts in testimony , to weig h the evidenc e, and to dr aw r easona ble infere nces f

rom basic f

acts to ultimate fac ts.’” Hooper , 214 S.W .3d at 13.

-4-In a fa ctual suff iciency revie w, we c onsider all the e vidence in a neutra l light. Roberts v. State , 220 S.W .3d 521, 524 (Tex.Crim.App. 2007). Evidence is factua lly insufficient if: (1) the evidenc e supportingthe ver dict is so weak that it re nders the ve rdict cle arly wrongand manifestly

unjust; or (2) the evide nce suppor ting the ve rdict is outweig hed by the g reat weig ht and pre pondera

nce of the evidenc e, so that the ve rdict is clea rly wrong , or manife stly

unjust. Id
. We cannot re verse a convic tion under the “ clea rly wrong ” or “ manifestly

unjust” standards simply beca use, base d on the quantum of e vidence admitted, we would have voted to ac quit. W atson v. State , 204 S.W .3d 404, 417 (Tex.Crim.App. 2006). Nor ca n we de clar e that a c onflict in the evidenc e justified a ne w trial bec ause w e disag ree with the jury ’s re solution of the conflict. Id . A new tr ial will only

be g rante d when the r eviewingcourt de termines, on an obje ctive basis, that the g reat weig ht and pre pondera nce of the evidenc e contr adicts the jury ’s ver dict. Id . In addition, our revie w should not substantially intrude upon the fa ct finder ’s role a s the sole judg e of the we ight a

nd cre dibilit y

g iven to witness testimony
. Johnson v. State , 23 S.W .3d 1, 7 (Tex.Crim.App. 2000); see also Marshall v. State , 210 S.W .3d 618, 625 (Tex.Crim.App. 2006)(f actua l sufficienc y

revie w continues to re quire “ due def ere nce” be g iven to the jury ’s deter minations). As discussed above , Appellant wa s acc used of the of fense of ag g ravated assault of a public serva

nt for thre atening

a police of

fice with a fire arm. SeeT E X .P E N A L C O D E AN N . § 22.02(a) (2), ( b)(2) (B ). He argues the e vidence is insufficient to sustain his conviction beca use the re cord c onclusively

establishes that he w as ac ting in self- defe nse whe n as a r esult of an a ctual injury from police gunfire. Similarly , Appellant conte nds the evidenc e is insufficient to support the jury ’s findingthat he knew Offic er G arc ia was a

police off

icer when he fired his we apon.
-5-Howeve r, Appe llant admits in hi s brief that his location, positi on, and ac tions during the of fice rs’ entry was he avily

contested. H e also points out that while Offic er G arc ia testified that Appe llant was fa cingthe offic ers with his wea pon as they

enter ed, ther e wa s contrar y phy sical evide nce indicatingthat he wa s actingin self-de fense . But, by their guilty

verdic t, the jury

implicitl y resolved a

ny conflicts in the evide nce a g ainst Appellant, and w e simply will intrude upon the jury ’s role a s fac t finder in our suf ficienc y revie w. See M

arshall , 210 S.W .3d at 625. Appellant’s se cond ar g ument challeng es the “ knowledg e” e lement of the of fense . To establish the offe nse of a g g rava ted assault ag ainst a public ser vant, the prose cution must establish the def

endant kne w the individual he wa s assaulting was a public officia l; a law enfor ceme nt office r in this case. SeeT E X .P E N A L C O D E AN N . § 22.02(a) (2), ( b)(2) (B ). A per son acts knowing ly , or with knowledg e, with re spect to the nature of his c onduct or to circumstanc es surroundinghis conduct whe n he is awa re of the nature of his conduct or that the circ umstances e x ist. T E X .P E N A L C O D E AN N . § 6.03(b)( Ver non 2003). A de fenda

nt’s knowledg e is a fa ct question to be dete rmined fr om the totality of the c ircumstance s. See Sm ith v. State , 965 S.W .2d 509, 513 (Tex.Crim.App. 1998). The jury may infer the exis tence of a mental state fr om any

fac ts tending to prove its ex istence, inc luding the a cts, words, a nd conduct of the a ccuse d. See H

art v. State , 89 S.W .3d 61, 64 (Tex.Crim.App. 2002). Appellant ar g ues the e vidence is insufficient to establish his knowledg e that Jesus Garcia
was a police off

icer beca use he w as unable to see the “ Police” mar kings on O ffice r Ga

rcia ’s clothing due to the darkne ss, the office r’s positions, and the smoke ca used by two flash devic es the offic er’ s deploy ed as the y enter ed the house . In addition, Appellant ar g ues the e vidence demonstrates he was una

ble to hear

the offic ers a

nnouncingthemselves as “ police” a nd g iving
-6-occupa

nts orders to “g et down” be cause his hearingwas tempora rily damag ed by

the noise fr om the flash de vices. Ag ain Appellant’ s candidly acknow ledg es a c onflict in the evidenc e on this issue. Offic er J oel Pursur, wa s the “bre ach ma n” re sponsible for the S.W.A.T. team’s initial entry into the house. He testified the tea m broke through Appellant’s ba ck door w ith a single blow of their rammingdevice . I mmediately upon entry , another

office r deployed a “ distractingdevice ” which was “ very loud” but did not prohibit hi m from beingable to hea r his fellow off

icer s y elling throug h the house that they wer e the police , and instructingany occupa nts to “g et on the g round.” Offic er Pursur move d throug h the house a nd rea ched the living ar ea a nd front door a s the second team wa s entering . The sec ond team deployed anothe r distrac ting de vice, immediately inside the front door, a s Pursur’s team moved down the hallway to the bedrooms. The other thre e member s of his team, includingOffic er G arc ia wer e ahe ad of Pursur in the ha llway . Corporal B arke r, another S.W .A.T. off

icer , testified that the team continued to announce themselves, and or der occupa nts to “g et on the g round” at all times as the team moved through the house. Corpora l Ba rker watche d as Off

icer Gar cia turne d to eng ag e someone in a bedr oom doorway
. Appellant testified in his own def ense. H e explained to the jury that he wa s asleep when the police e ntere d the house. He testified that he woke up to “an e x plosion” and that he w as confuse d, and his ea

rs wer e ring ing. H e did not hear the offic ers a

nnouncingthemselves, or order ing him to g et on the g round. Then the re w as a lig ht shining in his fac e and he swunghis
arm ove r his fac e to cove r his ey es. Appe llant testified that the first shots came from the lig ht in his bedroom doorwa

y , and he w as hit in the chest. The impact rolled his body , and anothe r shot hit him i n the upper

legas he w as re achingfor his own pistol to return fire . He f ired seve ral
-7-rounds bac k toward the door, and he could not see the police mar kings on the office rs’ unifor ms beca use of the blindinglight in his fac e. Ba sed on the totality

of the c ircumstance s, the jury could re asonably

have de termined, based on the office rs’ testimony , that the flash de vices we re not a n impediment to Appellant beingable to see or hea

r the off icer s as they

moved towar d his bedroom. See Sm ith , 965 S.W .2d at 513. Althoug h his testimony rea ds persua sively , the jury was fr ee to disre g ard his testimony and believe the ac counts of the of fice rs that they

could hea

r ea ch other

over the sound of the entry device s. See M

arshall , 210 S.W .3d at 625. B ased on the ir announc ements, the jury could have inf err ed that Appe llant knew, or should have known that the individual in his bedroom doorwa y was a police off

icer . Acc ording ly , viewed in e ither a ne utral or f avora ble light, the evidenc e wa s sufficient to support the jury ’s findingthat Appellant wa s awa re Jesus Garc ia was a law enf orce ment office r. I ssue Two is over ruled. In I ssue Thre e, Appe llant contends the trial c ourt’s denia l of his motion t o suppress wa s
err oneous bec ause the police fa iled to knock and a nnounce the mselves prior to ente ring Appellant’s house , despite the fa ct that the sea rch w arr ant the off

icer s were executing did not authorize the off

icer s to enter without announc ing the mselves. We reviewa trial c ourt’s rulingon a motion to suppress for a n abuse of

discretion. Oles v. State , 993 S.W .2d 103, 106 (Tex.Crim.App. 1999). Whi le we w ill defer to the tr ial court’s deter mination of historical fac ts where they find support in the rec ord, we must review que stions of law de novo
. See G uzman v. State , 955 S.W .2d 85, 89 (Tex.Crim.App. 1997). Sim ilarly , when a mix ed question of law

and fa ct does not turn on an e valuation of witness c redibility and demea nor, we will apply

a de novo standard. See id . Ultimately , howeve r, a suppr ession ruling

-8-will stand unless if falls outside the bounds of re asonable disag ree ment. See J aneck a v. State , 937 S.W .2d 456, 462 (Tex.Crim.App. 1996). Appellant’s suppre ssion argument is lim ited to the fac t that the office rs enter ed his home without announcingthemselves. Appe llant concludes a ny evidenc e discove red dur ing the sear ch should have be en excluded bec ause the office rs violated the “ knock and a nnouce” rule, a

nd there fore violated his Fourth Ame ndment right ag ainst unlawful sea rch a nd seizure. The F ourth Amendment guara ntees, “ [t ]he right of

the people to be secur e in their persons, houses, pa

pers, a nd eff ects a g ainst unrea sonable sea rche s and seizures . . . .” U .S. C O N S T . A M E N D . I V; Brewer v. State , 932 S.W .2d 161, 167 (Tex.App.--El Paso 1996, no pet.)
. The F ourth Amendment doe s not prohibit all searche s and seizures, only those that are
unrea sonable. Ibarra v. State , 11 S.W .3d 189, 192 (Tex.Crim.App. 1999). The re asonable ness of a se arc h is determined by considering

two competinginterests; the degree to which it intrudes upon an individual’s privac y , and the de g ree to which it is necessa ry for the pr omotion of leg itimate public interests. U.S. v. Knights , 534 U.S. 112, 118-19, 122 S.Ct. 587, 591, 151 L .Ed.2d 497 (2001). Absent exceptions not applicable in this case , it is t he re quirement that police obtain a se arc h war rant prior to conductinga sea

rch, that implements thi s g uara ntee. See U.S. v. Karo , 468 U.S. 705, 717-18, 104 S.Ct. 3296, 3304-05, 82 L .Ed.2d 530 (1984); see also T E X .C O D E C R I M .P R O C .AN N . art. 18.01 (V ernon Supp. 2009)( providing the re quirements for the issuance of

a sea rch w arr ant in Texas). The g ener al re quirement that police knock, and a nnounce the ir prese nce a

nd intent to enter , (the “ knock and a

nnounce” rule) is a

n element to be c onsidered when dete rmining the
rea sonablene ss of a sea

rch or seizure. See W

ilson v. Arkansas , 514 U.S. 927, 934, 115 S.C t.
-9-1914, 1918, 131 L .Ed.2d 976 (1995). H oweve r, an othe rwise leg al sea rch, pur suant to a lawf

ul
war rant will not be re ndere d “unre asonable ” in Four th Amendment terms due only to an improper e ntry
. See H

udson v. Michigan , 547 U.S. 586, 600, 126 S.C t. 2159, 2168, 165 L .Ed.2d 56 (2006). The ref

ore, e ven if we wer e to assume, f or ar g ument’s sake that the offic ers violated the “knoc k and announc e” r ule when the y

executed the wa

rra nt in this case , suppression was not the prope r re medy

for suc h a violation. See H udson , 547 U.S. at 594, 126 S.Ct . at 2165 (conc luding that police office rs’s conc eded violation of the “knock a nd announce ” rule did not require suppression of the e vidence found duringsear ch of de fenda nt’s home); Martinez v. State , 220 S.W .3d 183, 189-90 (Te x .App.--Austin 2007, no pet.)(holding suppression issue re ndere d moot by appellant’ s failure to demonstrate F ourth Amendment violation by office rs’s fa ilure to knock and a

nnounce pr ior to executing la wful sea rch w arr ant). In light of Hudson , we c onclude the trial cour

t did not abuse its discretion by denying the motion to s uppress. I ssue Thre e is
overr uled. We affir m the trial court’ s judgme nt.

Marc h 31, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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