### In The Court of Appeals 

### First District of Te;ras - 

### Houston

NOS. 01-14-00618-CR 01-14-00619-CR 

### DENNIS STEELE, 

### Appellant

V. 

### THE STATE OF 

### TEXAS, Appellee
On

### Appeal

### from the 56th

### Judicial 

### District Court

Galveston County, Texas 

### Honorable Lonnie Cox, 

### Judge Presiding 

### Trial Court Cause Nos. 13CR3049 

## & 13CR3050



### APPELLANT'S BRIEF 

### DANIELLAZARINE TBN: 24073197 

### THE 

### LAIY 

### OFFICE OF 

### DANIEL LAZARINE 440 

### Louisiana St., Suite 200 Houston, 

### Texas77002 

### (7t3) 224-4000 (113) 224-2815 (Fax) 

### ATTORNEY 

### FORAPPELLANT DENNIS STEELE 

### ORALARGUMENT IS 

### REQUESTED ACCEPTED 01-14-00618-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 3:17:41 PM CHRISTOPHER PRINE

CLERK

### follows: 

### 1LDENTITY OF 

### PARTIES 

### AND COUNSEL

Pursuantto Tex. R.App. P 38.1(a) (2011), the parties to

### this suit are as



### FOR THE STATE. 

### At Trial: 

### Elizabeth Cuchens 

### Kayla

### Allen OnAppeal: Rebecca 

### Klaren Galveston County Assistant 

### District Attorneys 600 59th Street, Suite 1001 Galveston, Texas 77551 FOR

### APPELLANT: 

### At Tfial: James 

### Dennis 

### Smith 4615 Southwest Freeway Houston, Texas 77027 

### OnAppeal: Daniel 

### Lazarine TBN:24013197 440 

### Louisiana St., Suite 200 I{ouston, Texas77002

### TABLE OFCONTENTS



### IDENTITY OF 

### PARTIES

### AND

# COUNSEL............. ............u

STATEMENT 

### REGARDING ORAL

### ARGUMENT............................. ..1

ISSUES 

# PRESENTED ............,...3

STATEMENT OF

# FACTS... .........4 SUMMARY

# OFTHEARGUMENT...... ..........9 ARGUMENTS AND

# AUTHORITIES .............11 POINT OF ERROR 

### ONE.. 

### .............11

Argument &

# Authorities ..............20

r

### ..................23

Argument 

### &

# Authorities ..............25Cases 

### INDEX 

### OFAUTHORITIES

Almanzav.State,686S.W.2d157(Tex.Crim.App. 

### 1984).................,......19,23 Bignallv.State,887SW.2d2l,23(Tex. Crim.App. 

### 1994)...........................21 Burdenv. State.55 S.W.3d608 (Tex.Crim.App.

# 2001)... ............24 BuJkinv State,207 S.W.3d 779 (Tex. Crim. 

### App.2006)..............................11 Ex

### parte Watson, 306 S.W.3d 259 (Tex. Cr'im. 

### App. 2009) (op. on 

### reh'g)..12, 13,17 Ferrel v.

### State,55 S.W3d 586 (Tex. Crim. 

### App.

### 2001)...........................11, 20 Guzman v. State, 188 S.W.3d 185 (Tex. Crim. 

### App.

### 2006)........................... 13 

### Hall v. State, 225 S.W.3d 524 (Tex. Crim. 

### App. 

### 2007)....................... 12-1

### 5, 18 Hayes v.

### State,728 S.W.2d 804 (Tex. Crim. 

### App. 

### 1987).............................20 Hooper v.

### State,214 S.W3d 9 (Tex. 

### Clim. 

### App.

# 2007).......... ..25,26 Jacks onv.Virginia, 443 U.S. 307 (197 9).

.... . . 

### Luckv. State,588 S.W.2d 371 (Tex. 

### CIim. 

### App. 

# 1976)........ ......22 

### McKinneyv.State,207S.W.3d366(Tex.Crim.App.2006)........................12 Millerv.State,ST5 S.W.2d582(Tex.Crirn.App. 

### 1991)..............................21 Ortega v. State, 171 

### S.W3d 895 (Tex. Crim. 

### App. 

### 2005)......................... 13, 

### l4 Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. 

### App. 

### 2000).......... 

### .....................23 Porteous v.

### State,259 S.W.3d 741 (Tex.

### App.-Houston [1st 

### Dist.] 2007)...21,22 Reedv.State,703 

### S.W.2d380(Tex.App.-Dallas1986,pet.ref'd)...............18 Rice v.

### Stare,333 S.W.3d 140 (Tex. 

### Crim.App. 

# 201i).......... .........21Rules



### Richardsonv. State,879 S.W.2d 874 (Tex. Crirn.

### App. 

### 1993).................25,27 Segundo v.

### State,270 S.W.3d 79 (Tex. 

### Clim. App.

### 2008)..........................13 Smith v.

### State,676 S.W.2d 584 (Tex. Crim. 

### App.

# 1984).. ........21 

## Templev.State,390S.W.3d341(Tex.Crim.App.2013)... ........24 Tievino v.

### State,100 S.W.3d 233 (Tex. Crirn.

### App. 2003) (per 

### curiurn)..........23 Vasquezv. 

### State,389 S.W3d 

### 36I (Tex. 

### C[im. App.

### 2012).........,................11

TEX. CODE. 

### CRIM. PROC. 

### ANN.arl. 37.09 (West 

### 2006).....................11, 15



### TEX. PEN. 

### CODEANN. Sec.38.03 (Vernon

# 2003).......... ..15, 16 

### TEX. PEN. CODE 

### ANN. 9.31(c) (Vernon 2003).

# . ..................21

### STATEMENT 

### REGARDING ORAL 

### ARGI]MENT

Pursuant to Texas Rule 

### ofAppellate Procedure 39.7, 

### Appellant hereby requests oral argument. Counsei is

### of the opinion that

### olal argument 

### would serveto ernphasize and 

### clalify the important legal points regarding this appeal.

### STATEMENTOFTHD CASE

This appeal isfrom 

### two convictions for Assault on a 

### Public Servant, 

### in which the

### Appellant received

### fifty (50) years confinement in the Texas Deparlment of 

### Crirninal Justice - 

### Institutional Division. Appellant was indicted for Assault on a 

### Public Servant on December

### 3,2013. Trial was had in the 56th 

### District Court, The Honorable 

### Lonnie Cox, Judge Presiding. The

### jury found 

### Appellant 

### guilty of both counts ofAssauit on a Public Servant. 

### Following punishment evidence, the

### jury assessed 

### Appellant's sentences at

### fifty (50) years. A 

### Motion for 

### New Trial was 

### filed on

### July 16,2014 and ovemuled by the Court on September 

### 23,2014. Notice ofAppeal was

### filed June 18,2014, and

### this brief follows.

2ISSUES 

### PRESENTED 

### POINT OF 

### ERROR ONE: THE

### TRIAL COURTABUSED ITS 

### DISCRETION 

### BYDENYING COLTNSEL'S REQUEST FOR A JURY 

### CHARGE INSTRUCTION ON

### TI{E LESSER



### INCLUDED OFFENSE OF RESISTING 

### ARREST



### POINT OF 

### ERROR 

### TWO: TFIE

### TRIAL COURT

### ABUSED ITS 

### DISCRETION 

### BY DENYING COUNSEL'S REQUEST FOR

### A JURY 

### CHARGE 

### INSTRUCTION ON SELF 

### DEFENSE



### POINT OF 

### ERROR

### THREE: THE 

### EVIDENCE IS 

### INSUFFICIENT TO PROVE 

### THATAPPELLANT

ASSAUI]TED E. CISNEROS

3

### STATEMENT OF FACTS

On November 6, 2013 , at the 2200 

### block 

### of 13th Avenue, in Texas City, Texas, a project supetintendent and his crewworked on a

### public street and drainage system repair project. 3 

### RR 141.

### At around 5;15 p.m., 

### Mr. Gonzalez, the project lead, observed avehicle drive through a balricade and crash 

### into a large 

### pile of 

### dirt. 3 

### RR 142. Soon thereafter, 

### Mr. Gonzalez watched this vehicle 

### burst into flames. 3 

### RR 144. He and several coworkers irnmediately rushed over tothe vehicle and rernoved the

### driverfrom the 

### burning car. 3 

### RR 145. Residents 

### from

across the street called 9- 1- 1. 3 

### RR 146. Officerswith the Texas 

### City Police Deparlment and representatives of the Texas 

### City Fire Department 

### anived shortly thereafter. 

### 1d. Appellant was 

### identified asthe

### driver ofthis vel.ricle. 3 

### RR 158 

### Appellant was unable to stand on his own, smelled 

### like alcohol and generally appeared to be intoxicated. 3 

### RR 146-48. 

### Appellant was taken 

### into custody and transported to the Texas 

### City Jail. 3 

### RR 159. 

### Officer Berg testified that he detained 

### Appellant for a

### driving 

### while intoxicated 

### (DWI) investigation. 1d. 

### Officer Berg elected to conduct this 

### DWI investigation atthe 

### police station rather than at the scene 

### ofthe crash. 3 

### RR 166-67. 

### Upon 

### arliving atthe 

### police station,

### jail staff noticed that

### Appellant appeared 

### to be intoxicated. 3 RR 236. 

### Officer Berg escorted 

### Appellant directly to the room designated 

### for 

### DWI investigations. 3 

### RR 166-67. This room was purposed 

### specifically for 

### DWI investigations, and 

### it contained relevant paperwork and an 

### Intoxilyzer for breath 4tests.

### /d. Officer Berg administered a battery 

### of standardized 

### field sobriety tests,



### formaliy amested

### Appellant, andthen asked 

### Appellant to give aspecirnen

### of 

### his breath. 

### Id.;3 RR 177-83. 

### Appellant agreed to do so, andthe breath test resultwas 0.223/0.208 - nearly

### tll'ee time the legal 

### lirnit. 3 

### RR 175. 

### At the conclusion of the 

### DWI investigation, Offlrcer Berg escorted 

### Appellant to one

### of several 

### booking cells. 3 

### RR 170; 3 RR 237. Testimony revealed that at the Texas 

### City Jail, there are numerous

### jail cells. 3 RR 237. Nearthe 

### booking area, there are

### two booking cells 

### which are usedto

### temporarily hold inmates

### while they
are booked 

### in or out of the

### jail, and

### for transpolt to Galveston County Jail. 3 

### RR 237-39. These empty cells are around 8feet 

### by 8feet and contain no bed or

### toilet. 3 

### RR 164; 184. 

### During the 

### "booking" process,

### jail staff members issue shoes to the inmates, receive their 

### propefty for safekeeping, and review 

### with the inmate a

### list 

### of intake questions. 3 

### RR 196.There are also general

### jail cells 

### which are used

### to hold inmates after they have been "booked 

### in." 3 RR 

### 237.Finally, there is also a sobriety room - affectionately referred to asthe 

### "drunk 

### tank" -

### which is a large room designed 

### for inmates 

### who law enforcement believeto be intoxicated. 3 

### RR 254; 218-19

.This room is suitable 

### for such a purpose because 

### it is devoid 

### of all potentially injurious objects, featuring 

### only a

### toilet. 3 

### RR 85, 184; 218-19. 

### Officer Berg

### testified that even after his 

### DWI investigation revealed that

### Appellant was nearly three time the legal 

### limit, he did not place

### Appellant into the drunk tank. 3 

### RR 170; 175. Rather, he 

### placedAppellant into a regular 

### booking cell. 3 

### RR 170. 5Testimony at

### trial detailed that intoxicated persons are generally placed into the



### dlunk tank sothat they can sober up before they are transported to a generai

### jail cell. 3 

### RR 218-219. 

### Still, Appellant was nottransported to the drunk tank. 3 

### RR 170.

### Appellant eventually laid down on the ground, in the fetal position, 

### with his
arms and head inside his shirt, and

### fell asleep. 3 RR 203. 

### Appellant lay sleeping in the holdover celi 

### for approximately 

### thirty minutes before Jailer Stephania Jackson elected to

### tanspoft him to another 

### ceil. 3 RR 225 Jacksontestified that her 

### uniform consisted 

### of adark shirt - she did notwear a 

### police officer's uniform because shewas not a peace 

### officer and 

### herjailer uniform had notyet been delivered. 3 RR 216. Testimony wasthat Jailer Jackson elected

### to transport 

### Appellant because she needed to use that particular holdover cell to prepare 

### for an inmate transfer tothe Gaiveston County Jail, located in Galveston, Texas. 3 RR 239. 

### Jailel Jackson testified that when preparing 

### for atransfer 

### of inmates tothe county

### jail, they place male andfemale inmates 

### into separate holdover cells. 3 RR 

### 217. Jacksontestified that the other holdover cell was dirty. 

### Id. There was also testimony that

### Appellant had urinated on 

### himself at some 

### point after his arrest, leaving the sanitation in that 

### parlicular holdover 

### cell in question as 

### well. 3 RR 273. When Jackson 

### initially approached 

### Appellant to awaken him, 

### Appellant offered averbal response but did not comply. 3 F...P.224. 

### Appellant was asleep. 

### Id. 

### I{aving madethe decision that

### Appellant nevertheiess needed to betransferred 

### into f)a

### different cell, Jackson called

### for another 

### officer to assist her. 3 

### RR 195, 202-04.

Jailer (now 

### Officer) Pierre Owens, Jr. and

### Officer Cisneros responded tothis 

### caii. 3 RR 202-04. Owens was also a

### jailer atthat 

### time. 3 RR 234-35. Owens and Cisneros testified thatthey approached 

### Appellant and requested that he

### voluntarily get up and move

### to a

### different cell. 3 RR 242. Appellant did 

### not getup. 

### Id. Owens and Cisneros testified that they inforrned Appellant that 

### if he did not do as

### they commanded. 

### Appellantwould be "escorted" to a

### different cell. 3 RR 243. 

### Appellant did 

### not get up. 

### Id. Cisneros and Owens then approached 

### Appellant and each grabbed one 

### of his arms 

### in order to 

### life him up andtransport him. .Id.

### Atthis time, 

### Appellant began resisting, and astruggle broke out between the

### officers and 

### Appellant. 3 

### RR262-64;4 RR 15, 18.Testimony revealed that the 

### officers employed various techniques to subdue

### Appellant in order totranspofi 

### him to a 

### different 

### cell. Specifically, Owens and Cisneros took

### Appellant to the ground, then 

### piied on top 

### of him, using

### their combined body weight to pin

### Appellant in the corder 

### ofthe holdover 

### cell. 3 RR 251; 4 

### RR 41-44,51. Testimony revealed that during this ruckus, Owens got scratched. 3 RR 246. Cisneros 

### testified that in the struggle, 

### Appellant kicked, 

### hit, bit, and scratched hirn. 4 RR 25. Corporal Moreno responded to Jailer Jackson's 

### call for additional help. 3 

### RR 210. 

### Moreno arrived at the

### jail, entered immediately, and elected to use his taser, 

### dry stunning andtasing 

### Appellant numerous tirnes. 4 

### RR 18- 19.

### As a result, 

### Appellant stopped resisting and was 

### left alone in the same 

### holdover cell. 3 RR 265. 7

### Appellant later cornplied 

### with the requested hansport to the drunk tank. 3 RR

172-73. Cisneros and Owens were transpofted to a local hospital. 3 RR 248; 4 

### RR 19. Evidence showed that Owens suffered several scratches to his ann. 3 RR 272. Evidence showed that Cisneros suffered several scratches to his arm

### which drew blood. 4 

### RR 19-24.

o

### SUMMARY OF

### THEARGUMENT

Appellant made a

### timely objection to the court's charge atthe close

### of evidence because the proposed

### july charge did not contain the lessel inciuded offense of Resisting 

### Affest, Search, or Transport. 

### Appellant specifically requested 

### this instluction but the

### trial court denied his request,thereby abusing its 

### discletion. 

### After analyzing the statutory elements ofAssault on a 

### Public Servant and Resisting 

### Arrest, Search, or Transpoft, and examining the specific allegations of the indictments, this court should

### find that Resisting 

### Arrest, Search, or Transporl rs a lesser included offense inthis case. Because the evidence at

### trial revealed that 

### Appellant resisted transport

### while in custody as an

### officer and

### jailer were transporting 

### him from one cell to anotheq the State's witnesses described this incident as resisting transpoft, and because the 

### injuries could have been incidental,

a rational

### jury could have concluded that

### Appellant was 

### guilty of Resisting Arrest, Search, orTransporl only. Thus, the

### trial couft abused its discretion when 

### it denied 

### Appeliant's request that the

### jury be charged on

### this lesser included offense. 

### Appellant also requested

### thatthe 

### courl's charge 

### at 

### the close

### of evidence 

### include an 

### instruction on 

### the 

### law

### of self defense. 

### Yet, the

### trial court denied this request 

### and submitted 

### a charge

### that omitted 

### this instruction. 

### At tlial, there was 

### testimony that 

### the officers attempted

### to transport 

### Appellant 

### from one

## jail cell to another 

### cell 

### by choice and then, because 

### Appellant did not wake 

### up and stand up immediately, the ofhcers grabbed 

### him by both arms and

### abruptly pulled him up

### off

othe ground. Because 

### Appellant 

### didn't cooperate,the 

### officers slammed 

### Appellant to

the ground and 

### piled on 

### top

### of him. One 

### offrcer applied the pressure 

### of his body weight to

### Appellant 

### while another

### officer held 

### Appellant's head back 

### by 

### his chin. Because

### there

### was some evidence

### thatthe police used excessive 

### force 

## in the recold, the

### trial court should have charged the

### jury on self defense. 

### The evidence 

### at

### trial is insuffrcient 

### to sustain

### Appellant's conviction for Assault on a 

### Public Servant on 

### "E. Cisneros" because the 

### "Officer Cisneros" 

### who testified at

### tlial never 

### identified himself as

### "E." Cisneros or 

### by any

### first name that begins 

### with the letter 

### "E." Nor did Cisneros state that he was the person named 

### in the indictment 

### or the complainant 

### in the case. 

### Despite some evidence 

### that could lead a

### jury to speculate that 

### this person

### who testified wasthe same person named in the indictment, the evidence is 

### legaliy insufficient to do so.

10

### ARGUMENTS AND

### AUTHORITIES POINT OF 

### ERROR ONE THE 

### TRIAL COURTABUSED ITS 

### DISCRETION 

### IN DENYING COUNSEL'S REQUEST FOR 

### A JURY 

### CHARGE INSTRUCTION ON 

### THE LESSER



### INCLUDED OFFENSE OF RESISTING 

### ARREST



### Standard of Review 

### At the conclusion of the evidence, 

### it is the 

### courl's duty to charge the

### jury with respect to the applicable law, legal 

### definitions, and legal 

### principles. Vasquez u 

### State,389 S.W.3d 

### 361,367-68 (Tex. Crim. 

### App. 2012). Intermediate courts should not apply the usual rule 

### of appellate deferenceto

### trial court rulings when 

### reviewing

a

### trial court's decision to deny a requested defensive

### jury instruction. 

### Buftin v 

### State,207 S.W.3d 

### 779,782 (Tex. Crim. 

### App. 2006). On the contrary, appellate coufts must 

### view the evidence in the 

### light mostfavorable to the defendant's requested instruction. See 

### Ferrelv. State,55 S.W.3d 586, 591 (Tex. Crim. 

### App. 2001). 

### Argument & Authorities The Legislature has specified when an offense is a lesser-inciuded offense. SeeTEX. 

### CODE CRIM. PROC. 

### ANN. 

### anr. 37.09 (West 2006). Specifrcally, an offense is a lesser included offense 

### if: 

## l) it is established by 

### proofofthe same or iessthan all thefacts required to establish the commission of the offense charged;

112) 

### it differs fi'om the offense charged

### only in the respect that a less setious



### injury or 

### risk of injury to the same person, propefty, or 

### public interest suffices to establish its comrnission; 3) 

### it diffbrs frorn the offense charged

### only in the respect that a lessculpable mental state suffices to establish its commission; or 4) 

### it consists 

### of an attempt to cornmit the offense charged or anotherwise included offense. 

### 1d. Expounding upon this statute,the Court 

### of Criminal Appeals has announced that intermediate courts should use atwo-pronged test to determine whether a charge on a lesser- included should be given: 

## (l) Is the requested charge a lesserincluded offense 

### ofthe charged offense?; and (2) Is there

### trial evidence that suppofts 

### giving the instruction to the

### jury?. Rice v.

### State,333 

### S.W3d 140, 144 (Tex. Crim. 

### App. 2011); 

### McKinneyv. State,207 S.W.3d 

### 366,370 (Tex. Crim. 

### App. 2006)\n 

### Hall v. State, the 

### Courl of Criminal Appeals announced that the

### first step in this analysis isto detelmine whether the lesser included offense is included 

### within the 

### proof necessary to establish the offense charged. 

### Hall v.

### State.225 S.W. 3d 524, 53 1 (Tex. Crim. 

### App. 2007). 

### This step 

### involves aquestion

### of law. 1d. 

### In Hall, the 

### Courl of Criminal Appeals adoptedthe "cognate-pleadings approach" 

### for the

### first step of the analysis. 

### Id. at 535. 

### This approach was 

### reaffirmed in Ex 

### parte Watson,where the couft wrote:
an offense is a lesser included offense 

### of another offense

. . ..

### if the indictrnent 

### for the greater 

### inclusive offense either': 1) alleges 

### all of the elements of the lesser included offense or 2) alleges elements plus facts 12

### (including descliptive 

### avements, such as non-statutory lnanner and means,

that are alleged for purposes 

### ofproviding notice) from 

### which 

### all

### ofthe elements 

### of the lesser-inciuded offense may be deduced. Watson,306 S.W.3d 259 (Tex. Crim. 

### App. 2009) (op. on 

### reh'g). The second step of the analysis asks whether there is some evidence inthe record 

### which would permit a

### jury to 

### rationally find that, 

### if the defendant is 

### guilty, he is

### guilty only of the lesser-included offense. Guzman v. State, 188 

### S.W3d 185 (Tex. Crim. 

### App. 2006); 

### Hall,225 S.W.3d at 536. Courts should ask whether the lesser-included offense is 

### "avalid, rational alternative to the charged offense." 

### Hall at 536; Seealso Segundo v.

### State,270 S.W.3d 

### 79,90-91 (Tex. Crim. 

### App. 2008). 

### Appellant made a

### timely objection to the court's charge and requested an 

### instruction onthe lesser included offense of Resisting

### Anest, Sealch, or Transport 4 RR 63-66. Thus, error is properly preserved 

### for review. Standard Used at

### Trial In response to

### Appellant's objection tothe court's charge and request

### for inclusion 

### ofthe lesser included offense of Resisting

### Arrest, Search, 

### ol Transport, the

### trial court analyzed whether the

### jury should be charged

### with the lesser-included offense 

### of Resisting 

### Arrest, Search, or Transport. 

### Id. Here, to contradict 

### Appellant's request 

### for a lesser included 

### inshuction on Resisting 

### Arrest, Search, or Transport, the State cited to Ortega v.

### State,171 S.W.3d 895 (Tex. Crim. 

### App. 2005) and argued that Resisting 

### Arrest, Search, orTransport is not a lesser-included offense ofAssault on a 

### Public Servant because the

### two charges did not meet the 13Blockburger test

### for analyzingclairns of Double Jeopardy. 4 RR 64.The

### trial court

denied

### Appeliant's request. 4 RR 66. 

### Although Ortega does stand 

### for the proposition that Assault on a 

### Public Servant and Resisting Arrest are separate offense for Double Jeopardy purposes, the 

### reviewing court in this case should determine whether the requested lesser included offense should have been submitted to

### the.jury

### within the

### framework

### of the cases and statute cited above. Elements ofAssault on a Publ

### ic Selvant and Resistins 

### Arrest The

### first step in the analysis isto decide whether Resisting Arrest is a lesser included offense 

### ofAssault Public Servant as charged. 

### As specified above, 

### this is a question

### of law, and the court should consider the statutory elements 

### ofAssault on

a 

### Public Servant andfactual allegations as

### laid out in the 

### indictment andthen compare themtothe elements of Resisting Arrest to determine whether the lesser included offense is

### within the 

### ptoof necessary 

### to establish the offense charged. ,See 

### Hall at 531. 

### In the indictments, the State alleged the

### following: 1)

### Appellant 2) 

### Intentionally, knowingly, or recklessly 3) Caused 

### bodily injury 

### to [E. Cisneros / P. Owens] 4) by 

### hitting 

### with his hand, 

### kicking 

### with his 

### foot or leg, scratching or 

### cutting 

### with his 

### fingernail, or 

### biting 

### with his teeth 5)

### Appeliant did 

### know that [E,.Cisneros / P. Owens] was a

### public servant,

### to

### wit: a [peace 

### officer / employee] 

### 6) [E. Cisneros / P. Owens] was 

### lawfully discharging an 

### ofhcial duty,

### to

### wit: attempting to restrain or control 

### Appellant

14

### I CR 6; 

### II CR 51.The elernents of 

### ResistingArrest, Seal'ch, orTransport are as



### follows: 

### l) Appellant 2) 

### Intentionally 3) Prevents or obstructs 4) Someone he knows is a peace 

### officer or a person acting 

### in a peace 

### officer's presence and at his direction 5)

### from effecting an arrest, search, or transportation of the actor 6) by using force againstthe peace 

### officel or another TEX. PENAL CoDE sEC.38.03 (West 1994). Thus, the question is whether the elements of Resisting 

### Arrest, Search, or Transport are established by the 

### proof 

### of the same or lessthan all thefacts required to establish the offense 

### ofAssault on a 

### Public Servant as 

### modihed by the indictments. See TEX. CoDE CRIM. PRoc. ART. 37

### .09(l) (West 1974);

### Hall,225 S.W3d at 524 The facts required to pl'ove the lesser offense of Resisting 

### Arrest, Search, or Transport include severalthat match up 

### perfectly and afew that do not, but 

### still, in the end, the court should

### find that Resisting Arrest, Search, or Transpott is indeed a lesser included offense 

### ofAssault on a 

### Public Servant inthis case. First, regarding those elements that match up perfectly, each offense requires 

### proof that

### Appellant was the person 

### involved, that the aggrieved 

### party is someone that

### Appellant knew to be a peace 

### officer or another person that was in the presence 

### ofand acting atthe 

### direction 

### ofa peace offrcer. These elements match up 

### vely easily and are not asource

### of

### fi'iction in this analysis t ICR refers to the Clerk's Record in 13CR3049 and ll CR refers tothe Clerk's Record in 13cR3050. 15Second, regarding those elements that do not, upon

### first glance, match 

### up

perfectly. To begin

### with, the mental state alleged in the indictment includes 

### "intentionally, knowingly, or recklessly" whereas Resisting 

### Arrest, Search, or Transport requires an intentional act. 

### I CR 6; 

### II CR 5;

### Tex. PcNRL CooE sEc 38.03 (West 1994). 

### Although Assault on a 

### Public Selvant 

### allowsfor less culpable mental states thanthe offense of Resisting 

### Arrest, Search, orTranspoIt, there is clear overlap in that the elements 

### ofeach offense include an 

### intentional act. Thus, 

### for this element, the analysis should proceed to the second step, where the

### court 

### will find an abundance

### oftrial evidence supporting an 

### intentional act

### from the testimony and exhibits. 

### Next,

### with regard to the degree 

### of force used, the indictrnent requires 

### proof of 

### bodily injury to a peace 

### officer where the lesser offense of Resisting Arrest, Search, or Transport requires 

### proofthat the person accused used forceto prevent or obstruct the officer. 

### Id. Here, each offense requiles a degree 

### of force used against
an

### officer or oneacting in his presence and at his direction. 

### It seems that the difference lies in the specific amount 

### of force -

### with Resisting 

### Arrest, Search, or Transport 

### requiring lessforcethat Assault; the 

### inquiry circles around the degree 

### of forcethat causes 

### bodily injury (where a mere 

### claim of 

### "pain" by the aggrieved party is 

### legally sufficient) versusthe degree 

### of force that, atthe

### very least, prevents or obstructs an

### officer from effecting an arrest, search, or transpolt. 

### Both offenses clearly require physical force used against a peace 

### officer,

### with ResistingArrest, 16Search, orTransport 

### requiring a lesser degree of 

### folce than Assault, andtherefore,



### this elernent of Resisting 

### Arrest, Search, orTransporl is

### within the 

### proof required for Assault on a 

### Public Servant. 

### Finally, regarding the specific actions taken by the officer, the 

### indictment requires 

### proof that

### Appellant used 

### folce (and caused 

### "pain") against an

### officer while hewas 

### lawfully discharging an

### official duty, specificaily, attempting 

### to restrain or control 

### Appellant whereas the lesser offense of Resisting 

### Arrest, Search,
or Transporl requires 

### proofthat Appellant used forceto prevent or obstruct the 

### officer from effecting an arrest, search, ortransportation ofAppellant. These

### two legal concepts do not align perfectly. Thus, the question becomes whether this element can be deduced 

### from thefactual allegations in the 

### indictrnent. Watson,306 

### S.W3d 259.

### Appellant urges that this element may be deduced from the specific allegations inthe indictment. The indictments include clairns that the assault occurred 

### while the officers were 

### lawfully discharging 

### offrcial duties,

### specifically, attempts to restrain and control 

### Appellant. 

### It is certainly leasonable and rational to deduce thatwhen Cisneros and Owens were restraining and 

### controlling Appellant, hewas subject to either arrest, search, ortransport. Further, arrest, search, and transport are

### official duties 

### of any peace 

### officer, and go hand-in-hand 

### with official duties to restrain and 

### control any 

### individual that is subject to arrest, search, or transport.

17Inthe second step of the analysis, we must askwhether there was evidence

at

### trial that suppol'ts 

### giving the 

### instluction to the

### jury. 

### ln other words, is Resisting 

### Arrest, Search, orTransport 

### "avalid, rational alternativeto the charged offense." 

### Hall,225 S.W.3d at 536. There is an abundance

### oftrial evidence that supports 

### givingthis instruction to the

### jury. Jackson, Owens, and Cisneros all testified that

### Appellant's actswere intentional, that

### Appellant used force against Cisneros and Owens, that they were 

### trying to handcuff 

### Appellant for the specific reason that they wanted to

### transpoft him, and 

### it is clear 

### from the State's 

### Exhibit 2 and the testimony that

### Appellant's efforts to resist transport prevented and/or obstructed the officers asthey tried 

### to 

### tanspoft him. Jackson testified that, when Cisnelos and Owens attempted to transport 

### Appellant 

### within the

### jail, he did not cooperate and resisting being transported. 3 RR 225. Owens testified that

### Appellant refused 

### to cooperate asthey tried to move 

### him, resisting

### their efforts to hanspoft 

### him. 3 

### RR 259-60. Owens 

### further stated that he believed

### Appellant intentionally resisted transpoft. 

### Id.Then Cisneros 

### specifically stated that

### Appellant resisted transpofl and his efforts to handcuff 

### Appellant. 4 

### RR 15, 

### 4l ,44-47

.Cisnet'osfurther stated that

### Appellant was 

### "struggling and 

### resisting" when Cisneros 

### took him to the

### floor. 4 

### RR 15, 42. For 

### all of the reasons mentioned above, this court should

### find that the offense 

### of Resisting 

### Arrest, Search, or Transport is a lesser included offense 

### of

1BAssault on a Public Servant

### within the fi'amework 

### olthe controlling caselaw and

statutes. 

### Harm Analysis 

### lf properly preserved, 

### jury charge error requires reversal 

### if "some 

### harm" is shown.

### Alntanzav. State,686 S.W.2d 

### 157,17l (Tex. Crim. 

### App. 1984, op. on reh' g). 

### ln Almanza, the Court 

### of Criminal Appeals held that 

### "if the error in the charge was the subject 

### ofa timely objection in the

### trial court, then reversal is required 

### if the error is calculated to inj ure the rights 

### of the defendant, 

### which means no more than that there must be some harm tothe accused from the error. 686 S.W 2d at 171. Here,

### Appellant made a

### timely, specific objection tothe 

### inclusion of 

### this
erroneous 

### instruction, and was overruled by the

### trial couft. 4 RR 63.

### Appeliant was clearly harmed by the

### trial courl's refusalto include an instruction on the lesser included offense of Resisting 

### Arrest, Search, or Transport. 

### It was clear

### from 

### all

### of thetestimony and the exhibits that

### Appellant lesisted efforts to handcuff and transport 

### him to a

### different cell. 

### It was also clear that Cisneros suffered an 

### injury, and Owens as

### well. However, a rational

### jury may have concluded that

### Appellant
was 

### guilty only of Resisting 

### Arrest, Search, 

### ol Transport, andthat the 

### injulies were merely incidental and that

### Appellant should not befound 

### guilty of those unintentional 

### injuries. But the

### jury was denied the 

### opporlunity to even consider the offense of Resisting 

### Arrest, Search, or Transport as an option during 

### their 19deliberations. The Statewasvery quick to remind the

### jury that they could not

consider 

### "resisting aLrest." 4 RR 72. This certainly harmed Appellant. Because 

### Appellant suffered sorne hann duetothis error and because 

### Appellant objectedto the charge as presented and requested this instruction atthe charge conference, reversal is required. For 

### all ofthese reasons, this cause should be reversed and remanded 

### for a new 

### trial 

### POINT OF 

### ERROR 

### TWO THE

### TRIAL COURT

### ABUSED ITS 

### DISCRETION 

### BY DENYING COLT\ISEL'S REQUEST FORA JURY 

### CHARGE 

### INSTRUCTION ON SELF 

### DEFENSE 

### Standard of 

### Review As stated above, intermediate courts should not apply the usual rule 

### of appellate defelence when considering a

### trial courl's decision to deny a requested defensive

### jury instruction. 

### Buskin,207 S.W.3d at 782. Instead, appellate courls must

### view the evidence inthe 

### light mostfavorable to the defendant's requested instruction. See

### Ferrel,55 S.W.3d at 591. 

### Argument & Authorities When properly requested, a

### trial court must instruct the

### jury on every defensive theory raised by the evidence, whether such evidence or testimony was produced by the prosecution or the defense. Hayes v.

### State,728 S.W.2d 804, 807 (Tex. 

### Crim.

### App. 1987).

### This is true regardless of whether such evidence is strong orweak, un-impeached or contradicted, and regardless of what the

### trial court may

20or may not

### think aboutthe 

### credibility of this evidence. Booth v. State,679 S.W.2d

498, 500 (Tex. Crim. 

### App. 1984).The defendant is not lequired totestifu to larse the issue 

### of self-defense

. Reed v.State, 703 S.W.2d 380, 384 (Tex.

### App.-Dallas 1986, pet. 

### ref'd). Self-defense rnay be raised by the testimony of witnesses

### who 

### testi$ to the defendant's acts and words atthe

### time of the offense. 

### Id. at384-85 (ciring Smirh v.Srate,676 S.W.2d 584 (Tex. Crim. 

### App. 1984). To be entitled 

### to an instruction on self defense when resisting an arrest or searchthat adefendant knows is being made by a peace officer, there rnust be some evidence in the record to raisethe issue 

### of whether the peace offrcer used or attempted to use greater force than necessary 

### in attempting to arrest or search the defendant. Porteous v. State, 259 S.W.3d 

### 741,748 (Tex.

### App.-Houston [1st 

### Dist.] 2007). 

### Anything more than a 

### scintilla of evidence is

### sufficient to entitie adefendant 

### to a lesser charge. 

### Bignall t. State,,887 SW.2d 21, 23 (Tex. Crim. 

### App. 1994). The Penal Code provides that the use 

### of force to resist an arrest, search or transport is

### justified 1) 

### if, before the actor offers any resistance, the peace 

### officer (or person acting at his 

### direction) uses or attempts to use greater forcethan necessary to make the an'est or search; and 2)when and to the degree the actor reasonably believes the force is 

### immediately necessary to protect 

### himself against the peace 

### officer's (or other person's) use or attempted use

### of greater force than necessary. TEX. PENAL ConE sEc. 9.31(c) (West 2007)

21

### At the charge conference, Appellant 

### very clearly objected to the

### courl's

charge and requested the additional instruction 

### of self-defense. Specifically, 

### Appellant requested that

### thejury charge include the law 

### ofselfdefense and the court overruled his request. 4 RR 63-68. Thus, the error was properly preserved 

### for appellate 

### review At trial, there was more than a

### scintilla or "some evidence" to raise the issue of whether the officers used "greater force than necessary" in

### their handling 

### of Appellant. See 

### Porteous,259 S.W.3d 

### at748; Seealso 

### Bignall,887 S.W.2d at23. From the video 

### in State's 

### Exhibit 2, a rational

### juror could conclude that before 

### Appellant oflered any actual resistance

### with force, the offrcer used greater force than was necessary and

### Appellant merely reacted to said excessive force 

### in self defense. Further, testimony 

### clearly showed that

### Appellant was 

### lying on the ground, asleep, when officers suddenly grabbed each 

### of his arms andyanked 

### him up

### from the ground, then when he

### didn't cooperate and reacted to them, they slammed 

### him to the 

### glound and piled ontop 

### of him. 3 RR 25 

### 1;4 RR 41-44, 51. Owens even held 

### Appellant's head back by gripping 

### Appellant's chin

### with his hands. 3 P.P.271-72. Once adefendant meets the 

### initial burden 

### of producing some evidence to 

### justify submission 

### of aself-defense instruction, the State must persuade the

### jury beyond a reasonable doubt that the delendant did not act 

### in self-defense. Luck v 

### State,588 S.W.2d 

### 371,375 (Tex. Crirn.

### App. 1976). Because 

### Appellant presented 

### nore than a

### scintilla or "some evidence" to

### justify the submission

### of aself defense 22instruction, that instruction should have been submitted to the

### jury.

### At the charge

conference, the State argued theweight of this evidence. Yet, the perceived strength or weakness of the evidence is notthe proper focus; because there was
some evidence 

### ofexcessive force in the record, some evidence to suggest 

### Appellant acted 

### in self defense, that 

### instruction should have been subrnitted to the Jury. 

### Harm Analysis Reversal is required 

### ifAppellant suffered "some harm" because of the denial of his requested 

### jury instruction. Ovalle v.

### State,l3 S.W.3d 

### 774,786 (Tex. Crrm. 

### App. 2000) (quoting Almanza v.

### State,686 S.W.2d 

### 157,777 (Tex. Crim. 

### App. 1985)). 

### Ifthe charge contains 

### eror, andthat 

### enor has been 

### properly preserved by

anobjection or requested instruction, reversal is required 

### if the error is 

### "calculated to injure the 

### rights of the defendant," meaning there must be some harm. 

### Tsx. CRIM. PRoc. AP.T. 36.19; Trevino v. State, 100 S.W.3d 

### 233,242 (Tex. Crim. 

### App 2003) (per 

### curium);Almanza,686 S.W.2d at 171. "Unless 

### all harm was abated, appellant suffered 

### 'some'harm." 

### Miller, Sl5 S.W.2d at 586 n.5. The 

### .july charge gave the

### july the 

### option of

### finding appellant 

### guilty or not 

### guilty ofAssault on a 

### Public Servant but denied

### thejury the

### fair option to consider our law on self defense, despite there being some evidence than 

### officers used greater force than was necessary in their handling 

### ofAppellant. That the State or 

### trial court believed this evidence to be unpersuasive is irrelevant. Just asthe State 23

### trial court believedthis evidence to be unpersuasive is irrelevant. Just asthe State



### intentionally pointed out to the

### jury that Resisting Arrest, Search, orTranspot't was not included in the

### jury charge, 

### it was surely understood thatthe 

### plinciples 

### of self defense were not to be considered by the

### jury, leading them to convict 

### Appellant 

### of the charged offense. See 

### 4P.R72. Because the b'ial 

### courl denied 

### Appellant's request

### for an 

### instruction on selfdefense, counsel was not able to present this defensive theory to the

### jury for its consideration and, therefore, suffered "some 

### harm" from the

### courl's denial 

### ofan instruction on self-defense.

### POINT OF 

### ERROR 

### THREE THE 

### EVIDENCE IS 

### INSUFFICIENT TO PROVE 

### THAIAPPELLANT

ASSATILIED E. CISNEROS 

### Standard 

### ofReview When 

### reviewing the legal 

### sufficiency of the evidence 

### to suppoft a 

### conviction, the appellate court should review the evidence 

### in a 

### light most favorable to the

### verdict to determine 

### ifany rational

### jury could have found beyond a reasonable doubt the essential elements of the offense. Jackson v.

### Virginia,443 U.S. 307, 319 

### (1979); Temple v.

### State,390 S.W.3d 

### 341,360 (Tex. 

### Crim. App. 2013). 

### This standardapplies 

### in both direct and circumstantial evidence cases. Burden v.

### State.55 S.w.3d 608, 613 (Tex. Crim. 

### App. 2001).

24

### Argument 

### & Authorities

A 

### guilty verdict based on 

### legally insufficient evidence violates the due process clauses of the 

### Fifth and Fourteenth Amendrnents to the 

### United States 

### Constitution. Richardson v.

### State,879 S.W.2d 874 (Tex. Crim. 

### App. 1993). The 

### jury isthe sole

### judge of the 

### credibility and weight 

### to be attached to thetestirnony of witnesses, and the

### jury is permitted to draw reasonable inferences 

### from facts as long asthe evidence presented supports the

### jury's inferences. 

### Jackson,443 U.S. at 319. Furlhermore,

### juries have the 

### ability to draw

### their own conclusions supported 

### by the evidence presented at

### trial, howeveq 

### juries cannot reach 

### their own conclusions based on speculation or

### factually unsupporled inferences or presunrptions. 

### Hooper v.

### State,214 S.W.3d 

### 9, 16 (Tex. Crim. 

### App. 2007) In 

### this case, 

### prior to

### trial, the State moved to amend the 

### indictment 

### in 13CR3049 

### to change the complainant listed fi'om 

### "W. Cisneros" to 

### "E. Cisneros."

^See 

### I CR 6-7. The

### trial court granted the State's 

### motion and amended theface

### of the 

### indictment consistent 

### with the State's motion. 1d.Thus, the State was required to present 

### sufficient evidence such that a rational

### jury could 

### find beyond a reasonable doubt that

### Appellant assaulted a peace 

### officer by the name 

### of E. Cisneros. However, at

### trial, the person who 

### testified and 

### identified himself as

### "Ofhcer Cisneros" 

### with Texas 

### City Police Department never actually 

### identified himself as 

### "Officer E. Cisneros" or 

### "Officer Eric Cisneros," or anything else other than 25

### Officer Cisneros. See 4 RR 6-59. Indeed, Cisneros testified that hewas present at

the

### jail that day, andthat

### Appellant bit, scratched, and struck hin, , causing 

### bodily injury to hlm. 

### Id. But he never 

### identified himself asthe complaining witness, 

### nor did anyone else at

### trial. Nor wasthis witness ever 

### identified asthe person named 

### in the indictment 

### in 13CR3049. 

### Id It is true that Jailer Jackson testified that an

### Officer Eric Cisneros was present atthe scene and assisted her when 

### Appellant did not respond to her commands 

### initially, but hertestimony alone is 

### insufficient to meet the elements 

### of the 

### indictment. See 3 

### RR225-29. For example, Jackson testified that she observed Cisneros and Owens reach for

### Appellant's arms and atthat 

### time she saw

### Appellant grab Cisneros's arm. 3 RR 205. 

### But that's all that Jackson observed atthattirne because, after

### Appellant began resisting, she 

### immediately left the areato 

### call 

### for backup. 3 RR 209-10. 

### In fact, atthis point, Jacksontestified that 

### "after they 

### hit the 

### floor" she 

### "walked back to the 

### booking area,

### which is a secured area" to 

### cali 

### for additional 

### officers. 3 RR 210. Jackson next observes Corporal 

### Moreno enter the 

### cell and watches Cisneros 

### exit. 3 RR 201- I I

. 

### Thejury is not permitted to draw conclusions based on speculation because doing so is not 

### sufficiently based on facts or evidence 

### to suppod a

### finding beyond

a reasonable doubt. 

### Hooper, 214 S.W.3d 

### at 16.

### As such, this

### july was not permitted to speculatethat the

### Officer Cisneros who 

### testified is the same 

### Officer E. Cisneros named in the 

### indictment or that he isthe same person who Jackson referred 

### to 26during her testimony. 

### While 

### it is true that certain bits of testimony may support the

verdict, the State failed to present

### sufficient evidence

### to sustain a

### conviction 

### fbr Assault on a 

### Public Servant in Cause number 13CR3049. Given this 

### deficiency

### of proof, the only way that the

### jury could have concluded that

### Appellant was 

### guilty in 13CR3049 is 

### if they 

### irrationally overlooked the details of the complainant's name or speculatedthat the personwho 

### testified must bethe person named in the indictment and 

### lury charge. For 

### all of these reasons, there is 

### insufficient evidence to sustainthis 

### conviction, and the 

### guiltyverdict is contrary to our laws. 

### Harm Analysis A 

### guiltyverdict based on 

### legaliy insufficient evidence violates the due process clauses of the 

### Fifth and Fourteenth Amendrnents to the 

### United States 

### Constitution. Richatdson,8Tg S.W.2d 874. As argued above, the 

### guilty verdict in
cause 13CR3049 is based on 

### insufficient evidence.

### As such, this court must reverse the 

### conviction in

### this cause and render anacquittal.

27

### PRAYER

WHEREFORE, PREMISES 

### CONSIDERED. the

### Appellant prays that 

### this Coufi reverse 

### Appellant's conviction, and grant any other 

### relief that may be appropriate.
Respectfully submitted,

/s/ 

### Daniel Lazarrne 

### DANIELLAZARINE TBN: 24073197 440 Louisiana Street, Suite 200 Houston, Texas77002 

### 7t3-224-4000 713-224-2815 

### (Fax) dlazarine@icloud.com Attorney 

### for Appellant

28

### CERTIFICATE OF 

### SERVICE

This isto 

### certify that 

### onthe2Tth day of February,2015, atrue and correct copy of the above and foregoing 

### Appellant's 

### Brief was served on the Galveston County 

### DistlictAttorney's Office, 600 59th Street, Suite 1001, Galveston, Texas, 

### by certified mail

/s/ Daniel 

### Lazarine 

### DANIELLAZARINE

29

### CERTIFICATE OF

### COMPLIANCE

Pursuant toTEX.R.APP.P. 

### 9.4(1XiX1), 

### I certify that this document complies 

### with thetype-volurne 

### limitations of TEX.R.APP.P. 

### 9.a(iX2XD): 1. 

### Exclusive ofthe exen.rpted portions setout in TEX.R.APP.P. 

### 9.a(i)(1), this document contains 4,257 words. 2. This document was prepared in 

### proportionally spacedtypeface using Times 

### New Roman 14

### for text.

/s/ Daniel 

### Lazarine 

### DANIELLAZARINE

30