NO. 07-10-0219-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D SEPTEMBER 28, 2011

KEVIN WADE FREEMAN, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 46 TH DISTRICT COURT OF WILBARGER COUNTY; NO. 11,375; HONORABLE DAN MIKE BIRD, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION On February 25, 2010, a jury found Appellant, Kevin Wade Freeman, to be competent to stand trial in a criminal proceeding. Ther eafter, on April 7, 2010, a different jury, in a separate proceeding, conv icted Appellant of the third degree felony offense of assault against a public servant. 1 That jury also found two enhancements to be true and it assessed Appellant's sentence at forty years confinement. Appellant asserts six points of error: (1)-(2) the State's evidence was insufficient to prove

1 Tex. Penal Code Ann. § 22. 01(a), (b)(1) (West 2011).2 Appellant intentionally, knowingly, or recklessly caused bodily injury to Joe Fitzgerald, a public servant, by hitting Fitzgerald with his hand; (3) the trial court erred by permitting Fitzgerald to testify whether Appellant knew Fitzgerald was employed at the Wilbarger County Jail; (4)-(5) th e trial court erred by denying Appel lant's motion for a directed verdict because there was no evidence Fitzgeral d was lawfully dischar ging any official duty when the alleged assaul t occurred; and (6) the jury's competency verdict was against the greater weight and preponderance of the evidence. We affirm.

Points of Error One and Two -- Sufficiency of the Evidence

A. Standard of Review
The only standard that a reviewing court s hould apply in determining whether the evidence is sufficient to support each element of a criminal offense t he State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia , 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State , 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). Under that standar d, in assessing the sufficiency of the evidence to support a criminal conviction, th is Court considers all the evidence in the light most favorable to the verdict and det ermines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson , 443 U.S. at 319; Brooks , 323 S.W.3d at 912. This standard gives full play to the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319. See Hooper v. State , 214 S.W.3d 9, 15 (Tex.Crim.App. 2007).3 Further, the trier of fact is the sole judge of the weight of the evidence and credibility of the witnesses; Tex. Code Crim. Proc. A nn. art. 38.04 (West 1979); Margraves v. State , 34 S.W.3d 912, 919 (Tex.Crim. App. 2000), and we may not reevaluate the weight and cr edibility determinations made by the fact-finder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Thus, we resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).
B. Assault against a Public Servant
To establish the felony offense of assaul t against a public servant, the State must prove: (1) a person, (2) intentio nally, knowingly, or recklessly, (3) causes bodily injury to another, (4) who the actor knows is a public se rvant (5) while that public servant is lawfully discharging an official duty. See Tex. Penal Code Ann. § 22.01(a), (b)(1) (West 2011). See Hall v. State, 158 S.W.3d 470, 473 (Tex.Cri m.App. 2005). Here, the indictment alleged that on or about December 2, 2009, Appellant did "intentionally, knowingly, or recklessly cause bodily injury to Joe Fitzgerald by hitting the said Joe Fitzgerald with [Appellant's] han d, and the [Appellant] did then and there know that the said Joe Fitzgerald was then and there a public servant, to-wit: a jaile r at the Wilbarger County Jail . . . and that the said Joe Fitzger ald was then and there lawfully discharging an official duty, to-wit: escorti ng [Appellant] to his jail cell." The indictment also pled two prior felony convictions as enhancements. Appellant subseque ntly pled "true" to those enhancements.
Appellant contends there is no evidence his hand touched Fitzgerald's face or that he intentionally, knowingly, or recklessly struck Fitzgerald in the face with his hand.4 In support, Appellant testified he did not strike Fitzgerald but was pushed into his cell at the jail and, although he intended to spit on Fitz gerald in a subsequent incident, his spit fell to the floor and did not strike Fitzgerald.
The State's evidence established that, on the date in question, Appellant had a visitor. During his visit, Appellant told the visitor that "he was going to end up doing something stupid that day that would cost hi m his visits and his phone calls." Following the visit, Appellant was escorted back to hi s cell by Wilbarger County Deputy Sheriff Brandon Bell, Deputy J. R. Ritter and Joe Fitzgerald, the jail adm inistrator. Bell testified that when the group reached the ce ll, Appellant hit Fitzgerald "out of nowhere" and that "it didn't look like he hit him with a fist, but it wasn't a slap, either." Bell further testified that afterwards Fitzgerald's eye immediat ely turned red and withi n minutes started to swell. As Fitzgerald was holding his eye and walking away, Bell hear d Appellant state: "Did you see his-did you see his bitch ass turn red when I slapped him?"
Fitzgerald testified that, after they e scorted Appellant to his cell, he opened the door for Appellant "and that's when he struck me. I didn't see it coming." 2 Fitzgerald testified his eye turned red and later, there was a dark spot. He saw a doctor that day and was given an anti-inflammatory. When Fitz gerald later returned to the jail that day, he encountered Appellant a second time. Du ring that encounter, Fitzgerald testified Appellant spit on his shoulder. In addition, weeks later while Fitzge rald was overseeing a visit between Appellant and his doctor, Appellant disagree d with Fitzgerald over a jail

2 Appellant testified that, at the time of the incident, Fitzgerald had told him that, if he didn’t get into his cell, he was going to take away Appellant’s right to visitations and Appellant was arguing with Fitzgerald about his telephone privileges.5 policy and stated in a recorded conversation : "That's bullshit. And you wonder why I slapped your bitch ass."
At trial, the term "public servant" was defin ed in the jury charge as "a person . . . employed, or otherwise designated as one of the following . . . : an officer, employee, or agent of government." Fitzgeral d testified that, as jail admin istrator, he runs the day-today operations of the jail and interacts with inmates on a daily basis in a variety of situations. He testified he sometimes esco rted Appellant to and from visitations and doctor's appointments. When Appellant struck him in t he face, he was escorting Appellant back to his cell after a visitation accompanied by two deputies while wearing his uniform, i.e., a polo shirt that bore a s heriff's star and the inscription "Wilbarger County Jail." 3 Moreover, Appellant testified at tr ial that he knew Fitzgerald worked at the jail and sometimes escorted him to doctor's appointments.
Granted, even though Appellant's version of what occurred during the incident at his jail cell and during the subs equent encounter differs markedl y from the testimony of Bell and Fitzgerald, the jury listened to the te stimony and by their verdict evidently found Bell's and Fitzgerald's testimony more credible. It is the jury's sole responsibility to judge the credibility of witnesses, and the jury was free to believe or disbelieve any portion of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). We must give great deference to the jury's findings of fact. Laster v. State , 275 S.W.3d 512, 518 (Tex.Crim.App. 2009).

3 A person “is presumed to have known the person assaulted was a public servant . . . if the person was wearing a distinctive uniform or badge indicating the pers on’s employment as a public servant . . . .” Tex. Penal Code Ann. § 22.01(d) (West 2011).6 Further, Appellant's own statements bef ore and after the incident when coupled with testimony that Fitzgerald's eye imme diately turned red, swelled and required medical attention are sufficient evidence to establish that Appell ant intentionally, knowingly or recklessly struck Fitzgerald in the face causing bodily injury. See Ortega v. State , 207 S.W.3d 911, 919-20 (Tex.App. --Corpus Christi 2006, no pet.). 4 The record further supports the jury's conclusion that, at the time of the in cident, Appellant knew Fitzgerald was a public servant and that he was lawfully discharging an official duty. Appellant's first and second points of error are overruled.
Point of Error Three -- Opinion Testimony
Appellant contends the tria l court reversibly erred in admitting Fitzgerald's testimony that Appellant knew he was employed as a public servant. We disagree. An appellate court "[may] not reverse a ruli ng based on nonconstitutional error that does not affect "substantial rights" of an appellant. Neal v. State , 256 S.W.3d 264, 284-85 (Tex.Crim.App. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009). See Tex. R. App. P. 44.2(b). "If, afte r examining the record as a whole, we determine that any error had a slight or no e ffect on the jury, then we will not overturn the trial court's ruling." Neal , 256 S.W.3d at 285 (citing Morales v. State , 32 S.W.3d 862, 867 (Tex.Crim.App. 2000)). Further, "' the presence of overwhelming evidence of guilt plays a determinative role' in this analysis." Neal , 256 S.W.3d at 285 (citing Motilla v. State , 78 S.W.3d 352, 356 (Tex .Crim.App. 2002)).

4 "Bodily injury" means "physical pain, illness or any im pairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (West 2011). It has been held that the Penal Code definition of "bodily injury" is "purposefully broad and seems to encompass even rela tively minor physical contact so long as they constitute more than mere offensive touching." Wawrykow v. State , 866 S.W.2d 96, 99 (citing Lane v. State , 763 S.W.2d 785, 786 (Tex.Crim.App. 1989). See also Hernandez v. State , 903 S.W.2d 109, 113 (Tex.App.--Fort Worth 1995, pet. ref'd) (contusions on fa ce and bruise on leg of officer constitute "bodily injury"); Wawrykow , 866 S.W.2d at 99-100 ("bodily injury" occurr ed when officer struck in the face).7 Assuming without deciding t hat the trial court erred in admitting Fitzgerald's opinion testimony that Appellant knew he wa s a jail employee and thus a public servant, such evidence was harmless in light of the overwhelming evidence detailed above. Appellant's third point of error is overruled.

Point of Error Four and Five -- La wfully Discharging an Official Duty
Appellant also challenges the sufficiency of the State's evidence that Fitzgerald was "lawfully discharging an official dut y" when he was assaulted by Appellant. 5 As stated in the preceding section, the evidenc e that Fitzgerald was a public servant or a county jailer when he was assaulted is overw helming. In addition to running the day-today operations of the jail and interacting with inmate s on a daily basis, Fitzgerald testified that, as part of thos e duties, he escorted prisoners from their cells to visitation and back again. Tammy Spangl er, a jail employee, test ified that, when Fitzgerald issued a memorandum establishing the circum stances under which Appellant could be released from his cell, deputies and jailers followed his instructions. 6 Fitzgerald testified that he escorted Appellant during his visita tion on December 2, 2009, accompanied by two deputies while wearing a jail uniform bearing a sheriff's badge and the inscription "Wilbarger County Jail." From this evidence, a rational juror could have found beyond a reasonable doubt that Fitzgerald, as a county jail administrator, not only supervised the conditions under which prisoners were allowed to leave their cells but participated in escorting prisoners as part of his day-to-day re sponsibilities. As such, a rational juror

5 On appeal, we treat Appellant's challenge of the trial court's ruling on a motion for directed verdict as a legal sufficiency challenge. See Moff v. State, 131 S.W.3d 485, 488-89 (Tex.C rim.App. 2004). We refer the parties to our discussion of Points of Error O ne and Two for a statement of the standard of review.

6 On November 20, 2009, Fitzgerald issued a memorandum to jailers indicating that Appellant would not be outside of his cell unless two deputies were present.8 could have found beyond a reasonable doubt that, at the time of the assault, Fitzgerald was lawfully discharging an official duty, i.e., escorting a pris oner to his cell. See Hall , 158 S.W.3d at 475. Appellant's fourth and fifth points of erro r are overruled.
Point of Error Six -- Competency to Stand Trial
Appellant asserts the jury's verdict fr om the competency hearing is against the great weight and preponder ance of the evidence. 7 In determining whether a jury's finding is against the great weight and pr eponderance of the evidence, an appellate court must consider all of the evidence and set aside the verdict only if the evidence is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Morris v. State, 301 S.W.3d 281, 292 n.35 (Tex.Crim.App. 2009).
A person is incompetent to stand trial if the person does not have "sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding" or "a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A defendant's competency to stand trial is a question of fa ct to be determined by the competency jury; Morris, 301 S.W.3d at 287, and is presum ed competent to stand trial unless he proves he is not competent by a preponderance of the evidence. Id. at 285. Evidence relevant to these issues incl ude whether a defendant can (1) understand the charges against him and the potential consequences of the pending criminal proceedings, (2) disclose to counsel pertinent facts, events, and st ates of mind, (3) engage in a reasoned choice of legal strategies and options, (4) understand the

7 While we note that the Clerk's Record does not include a copy of the Court's Char ge or the jury's verdict from the competency proceeding, and it does not include a judgment or other court order expressly reflecting that verdict, for purpose s of this appeal, we will presume without expressly finding that the judgment being appealed implicitly reflects that verd ict and that Appellant has preserved error.9 adversarial nature of crimi nal proceedings, (5) exhibit appr opriate courtroom behaviour, and (6) testify. See Tex. Code Crim. Proc. Ann. art. 46B.024 (West 2006).
At the competency hearing, Appellant's evidence consis ted of the testimony of Evan Sanders, a person who se rved time with Appellant in the Wilbarger County Jail; Opal Freeman, Appellant's mother; and Dr. Robert Borc hardt, Jr., a physician who works for the jail and treated Appellant for approximately a year. While they were incarcerated together Sanders associated with Appellant on a daily basis and they discussed the charges pending agai nst him. Specifically, they discussed whether he should plead or go to trial. Sanders obser ved that Appellant un derstood how the court system operated and communicated with him about possible case strategies he might undertake in his case. He further observ ed that Appellant seemed coherent and made sense. He testified that, although Appellant had a problem with authority, he did not witness anything that i ndicated to him that Appellant was having di fficulty understanding what the authorities wished Appellant to do.
The testimony of Appellant's mother c onsisted primarily of historical evidence pertaining to the fact that Appellant had suffered from psychological problems as a child. She testified that his psychological issues subsided after he was married at age eighteen, but resurfaced when his wife died. At that time he began us ing a lot of drugs and stealing things. She testif ied that he was imprisoned for six years and, shortly after his release, began engaging in behaviors sim ilar to those he had engaged in before going to prison. She also testified that he knew what a judge and attorney were, understood the purpose of t he competency hearing and knew what the charges were against him.10 Dr. Borchardt testified that he had s een Appellant for approx imately a year and prescribed a number of anti-psyc hotic medications and major tranquilizers for him. The medications were primarily aimed at redu cing Appellant's aggre ssion and anger. He also testified that the prescription drugs “sedated him, but not very much. He could stand up and talk to you and carry on a pretty decent conversation, even with the medication.” Although such drugs could affect one’s memory, he testified that he didn’t find that to be true with regards to Appellant. Rather, he testified that Appellant rationally discussed his memories. He also te stified that, although the quantity of drugs required to keep Appellant’s aggression under control was not normal, he observed that Appellant "could take a whole basketful of [dr ugs] and [it] didn't seem to bother him. He is unusual in that respect." Dr. Borchardt also agreed with the State that Appellant exaggerated his symptoms in an attempt to deflect responsibility. He was not asked and did not opine on whether Appellant was competent to stand trial.
Dr. Timothy Nyberg, a clinical and forens ic psychologist, testif ied for the State. He had conducted a competency examinati on of Appellant in December 2009 and reached the conclusion that Ap pellant was competent to st and trial. He opined that Appellant had sufficient present ability to consult with his lawyer with a reasonable degree of rational under standing and had a rational as well as factual understanding of the proceedings against him. He based his opinion on a bas ic history obtained from Appellant and a mental status examination. He noted that Appellant communicated, responded to questions appropriately, ta lked about the criminal charges pending against him and understood the nature of thos e charges. From the information volunteered by Appellant, Dr. Nyberg believed Appellant "was pretty familiar with the way things operated in court" and understood the roles of judge and attorney and how11 their roles related to the offense. From discussions with jail personnel, he learned that Appellant had picked up additional charges while in ja il and was uncooperative with jail personnel. He also described the course of medical treatment and m edicines that were prescribed for Appellant. Although he declined to opi ne on how any dosage of the medications could affect Appellant's capa city, he testified that he did not notice an appreciable effect on Appellant from the medications. Once he determined that Appellant met the statutory requirements for competency, he felt no need to conduct any further testing for mental illnesses, mental retardation or mental disabilities.
The State also called Appellant's girlfriend who had dat ed Appellant for approximately a year and a half before he was incarcerated. After he was incarcerated, she visited him and received te lephone calls regularly until t he incident of December 2, 2009. She testified that, whil e they were dating, Appell ant performed necessary daily tasks, held down jobs, and knew what wa s going on around him. She testified Appellant knew how the c ourt system worked and spoke wi th her about his mental issues in connection with the ch arges pending against him. She testified that he told her "that he was going to act crazy . . . w hen he came to court" and that the purpose of him acting crazy was "[t]o see if he could get out of what he did."

As we have indicated above, there was su bstantial direct evidence at trial that Appellant committed the offense for whic h he was charged and tried, i.e., two eye witness accounts of the incide nt and two incriminating st atements made by Appellant (one tape recorded). Throughout the trial, Appe llant conducted hims elf appropriately while responding to the inquiries and directions of the trial judge. His testimony was12 responsive, coherent and intelligent. 8 He appeared to understand the charges against him, the nature of the proceedi ngs, the gravity of the proceedings, and the role of the different court officers. In an initial pret rial proceeding, he disagreed with his attorney on trial strategy and whether to call, or not call, certain witnesses.
Having reviewed the trial transcripts re levant to Appellant's competency claim, we find the evidence establishes that: (1 ) Appellant was able to consult with his attorney with a reasonable degree of rati onal understanding; (2) he did have a rational understanding of the consequences of the proceedings against him; and (3) at the time of the trial, he did have a factual understanding of the bas is of the State's claims. Accordingly, we find that the jury's verdic t rejecting Appellant's claim of incompetency was not against the great we ight and preponderance of the evidence. Appellant's sixth point of error is overruled.

Conclusion
The trial court's judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.

8 Prior to testifying, Appellant testified he underst ood that his attorney believed his testimony was a strategic and tactical error but di sagreed and wanted to testify anywa y. He also testified that he understood the trial court’s admonishments and caut ionary statements but want ed to testify even though by doing so he would open the door to testimony on topics detrimental to his case.