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

ORAL ARGUMENT IS REQUESTED

ACCEPTED

01-14-00618-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/27/2015 3:17:41 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 3:17:41 PM CHRISTOPHER A. PRINE Clerk
follows:

1LDENTITY OF PARTIES AND COUNSEL

Pursuant to 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 ..............25
Cases

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, 1 88 S.W.3d 1 85 (Tex. Crim. App. 2006)........................... 1 3

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)....................... 12-1 5, 1 8

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 on v. 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, 1 71 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).......... .........21
Rules

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 serve to

ernphasize and clalify the important legal points regarding this appeal.
STATEMENTOFTHD CASE

This appeal is from 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 of Assauit 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 of Appeal was filed June 18,2014, and this

brief follows.

2
ISSUES 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 crew worked on a public street and

drainage system repair project. 3 RR 141. At around 5;15 p.m., Mr. Gonzalez, the

project lead, observed a vehicle 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 to the

vehicle and rernoved the driver from the burning car. 3 RR 145. Residents from

across the street called 9- 1- 1 . 3 RR 146. Officers with the Texas City Police

Deparlment and representatives of the Texas City Fire Department anived shortly

thereafter. 1d. Appellant was identified as the driver of this 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 at the police station

rather than at the scene ofthe crash. 3 RR 166-67. Upon arliving at the 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

4
tests. /d. Officer Berg administered a battery of standardized field sobriety tests,

formaliy amested Appellant, and then asked Appellant to give a specirnen of his

breath. Id.;3 RR 177-83. Appellant agreed to do so, and the breath test result was

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. Near the booking area,

there are two booking cells which are used to 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 8 feet by 8 feet 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 as the "drunk tank" - which is a large

room designed for inmates who law enforcement believe to 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.

5
Testimony at trial detailed that intoxicated persons are generally placed into the

dlunk tank so that they can sober up before they are transported to a generai jail

cell. 3 RR 218-219. Still, Appellant was not transported 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

Jackson testified that her uniform consisted of a dark shirt - she did not wear a

police officer's uniform because she was not a peace officer and herjailer uniform

had not yet been delivered. 3 RR 216. Testimony was that Jailer Jackson elected to

transport Appellant because she needed to use that particular holdover cell to

prepare for an inmate transfer to the Gaiveston County Jail, located in Galveston,

Texas. 3 RR 239. Jailel Jackson testified that when preparing for a transfer of

inmates to the county jail, they place male and female inmates into separate

holdover cells. 3 RR 217. Jackson testified 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 a verbal response but did not comply. 3 F...P.224. Appellant was asleep. Id.

I{aving made the decision that Appellant nevertheiess needed to be transferred 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 to this caii. 3

RR 202-04. Owens was also a jailer at that time. 3 RR 234-35. Owens and

Cisneros testified that they 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. Appellant would 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 and transport him. .Id. At this

time, Appellant began resisting, and a struggle 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 to transpofi 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 and tasing 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 THE ARGUMENT

Appellant made a timely objection to the court's charge at the 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 of Assault 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 in this 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, or Transporl 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 that the 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

o
the 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 that the 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 was the 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 deference to 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 most favorable 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 iess than all the facts required to

establish the commission of the offense charged;

11
2) 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 less culpable

mental state suffices to establish its commission; or

4) it consists of an attempt to cornmit the offense charged or an otherwise

included offense.

1d. Expounding upon this statute, the Court of Criminal Appeals has announced

that intermediate courts should use a two-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 is to 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 a question of law. 1d. In

Hall, the Courl of Criminal Appeals adopted the "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 in the

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 "a valid, rational alternative to the charged offense." Hall

at 536; See also 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 on the 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 to the 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, or Transport is not a lesser-included offense

of Assault on a Public Servant because the two charges did not meet the

13
Blockburger 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 of Assault on a Publ ic Selvant and Resistins Arrest

The first step in the analysis is to 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 and factual allegations as laid out in the indictment and then

compare them to the 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, towit: a [peace officer / employee]

6) [E. Cisneros / P. Owens] was lawfully discharging an ofhcial duty, towit: attempting to restrain or control Appellant

14
I CR 6; II CR 51. The elernents of ResistingArrest, Seal'ch, or Transport 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 against the 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 less than all the facts 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 several that match up perfectly and a few 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 in this 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 at the direction ofa peace offrcer. These elements match up

vely easily and are not a source of fi'iction in this analysis

t I CR refers to the Clerk's Record in 13CR3049 and ll CR refers to the Clerk's Record in

13cR3050.

15
Second, 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 allows for less culpable

mental states than the offense of Resisting Arrest, Search, or TranspoIt, 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 force to prevent or

obstruct the officer. Id. Here, each offense requiles a degree of force used against

an officer or one acting 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 less force that Assault; the inquiry circles around the degree of

force that causes bodily injury (where a mere claim of "pain" by the aggrieved

party is legally sufficient) versus the degree of force that, at the 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 Resisting Arrest,

16
Search, or Transport requiring a lesser degree of folce than Assault, and therefore,

this elernent of Resisting Arrest, Search, or Transporl 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 he was 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 force to prevent or obstruct the

officer from effecting an arrest, search, or transportation of Appellant. These two

legal concepts do not align perfectly. Thus, the question becomes whether this

element can be deduced from the factual allegations in the indictrnent. Watson,306

S.W3d 259. Appellant urges that this element may be deduced from the specific

allegations in the 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 that when Cisneros and Owens were restraining and controlling Appellant,

he was subject to either arrest, search, or transport. 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.

17
In the second step of the analysis, we must ask whether there was evidence

at trial that suppol'ts giving the instluction to the jury. ln other words, is Resisting

Arrest, Search, or Transport "a valid, rational alternative to the charged offense."

Hall,225 S.W.3d at 536.

There is an abundance oftrial evidence that supports giving this instruction

to the jury. Jackson, Owens, and Cisneros all testified that Appellant's acts were

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 as they 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 as they

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 1 5, 4l , 44-47 . Cisnet'os further 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

1B
Assault 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 to the accused from the error. 686 S.W

2d at 171.

Here, Appellant made a timely, specific objection to the inclusion of this

erroneous instruction, and was overruled by the trial couft. 4 RR 63. Appeliant was

clearly harmed by the trial courl's refusal to include an instruction on the lesser

included offense of Resisting Arrest, Search, or Transport. It was clear from all of

the testimony 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, and that the injulies were

merely incidental and that Appellant should not be found 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

19
deliberations. The State was very quick to remind the jury that they could not

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

Appellant suffered sorne hann due to this error and because Appellant objected to

the charge as presented and requested this instruction at the 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 FOR A 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 in the light most favorable 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

or weak, un-impeached or contradicted, and regardless of what the trial court may

20
or may not think about the credibility of this evidence. Booth v. State,679 S.W.2d

498, 500 (Tex. Crim. App. 1984). The defendant is not lequired to testifu to larse

the issue of self-defense . Reed v. State, 703 S.W.2d 3 80, 3 84 (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 at the 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 search that a defendant

knows is being made by a peace officer, there rnust be some evidence in the record

to raise the 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 a defendant 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 force than 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; See also Bignall,887 S.W.2d at 23.

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 and yanked him up from

the ground, then when he didn't cooperate and reacted to them, they slammed him

to the glound and piled on top 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 a defendant meets the initial burden of producing some evidence to

justify submission of a self-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 a self defense

22
instruction, that instruction should have been submitted to the jury. At the charge

conference, the State argued the weight of this evidence. Yet, the perceived

strength or weakness of the evidence is not the 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, and that enor has been properly preserved by

an objection 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 as the State

23
trial court believed this evidence to be unpersuasive is irrelevant. Just as the State

intentionally pointed out to the jury that Resisting Arrest, Search, or Transpot't was

not included in the jury charge, it was surely understood that the 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 standard applies 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 is the sole judge of the credibility and weight to be attached to the testirnony

of witnesses, and the jury is permitted to draw reasonable inferences from facts as

long as the 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 the face 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 he was present at

the jail that day, and that Appellant bit, scratched, and struck hin, , causing bodily

injury to hlm. Id. But he never identified himself as the complaining witness, nor

did anyone else at trial. Nor was this witness ever identified as the person named in

the indictment in 13CR3049. Id

It is true that Jailer Jackson testified that an Officer Eric Cisneros was

present at the scene and assisted her when Appellant did not respond to her

commands initially, but her testimony 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 at that time she saw Appellant

grab Cisneros's arm. 3 RR 205. But that's all that Jackson observed at that tirne

because, after Appellant began resisting, she immediately left the area to call for

backup. 3 RR 209-10. In fact, at this point, Jackson testified 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 speculate that the Officer Cisneros who testified is the same Officer E. Cisneros

named in the indictment or that he is the same person who Jackson referred to

26
during 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 speculated that the person who testified must be the person named in the

indictment and lury charge. For all of these reasons, there is insufficient evidence

to sustain this conviction, and the guilty verdict is contrary to our laws.

Harm Analysis

A guilty verdict 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 an acquittal.

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 is to certify that onthe2Tth day of February,2015, a true 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 to TEX.R.APP.P. 9.4(1XiX1), I certify that this document complies

with the type-volurne limitations of TEX.R.APP.P. 9.a(iX2XD):

1. Exclusive of the exen.rpted portions set out in TEX.R.APP.P. 9.a(i)(1), this

document contains 4,257 words.

2. This document was prepared in proportionally spaced typeface using

Times New Roman 14 for text.

/s/ Daniel Lazarine

DANIELLAZARINE

30