NO. 07-04-0247-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D FEBRUARY 14, 2005

______________________________ KIM W. GAT EWOOD, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY; NO. 2003-485,577; HON. DRUE FARMER, PRESIDING

_______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Appella nt, Kim W. Gatewood, appeals his co nviction for falsely identifying himself as a police officer in violation of §37.12 of the Texas Penal Code. His two issues involve the legal and factual sufficiency of the evid ence supporting his conviction. He contends that the evidence was insufficient because the prosecu tor failed to establish that the Republi c of Tex as was an official law enfo rcement ag ency. We affirm. Background Appella nt, a member of an organization known as the Re public of Texas, was arrested by a Lubbock police officer after observing appellant wearing a badge. The latter2

was circular with an inset of a large five-pointed star. On the t op o f the badge appeared the words “Republic of Texas,” while on the bottom appeared the word “Sheriff”. Imprinted on the star was the word “Texas .” S o too was appellant found in possession of an identification car d and an oath of office. The former, entitled “International Certificate of Competen cy,” purported to certify him as com petent to operate “cars, trucks, vans, and cycles.” The lat

ter contai ned an o ath depi cting tha t appell ant sworeto “faithfully execute the dutie s of the o ffice of d eputy she riff, of th e Republ ic of Tex as . . . .” Prior to his arrest, appellant was in a l ocal restaurant wi th a grou p of othe rs belonging to the Re public o f Texas. Furthermore, the police were summoned to the establis hment whe n a restau rant empl oyee saw one of th e group w ith a fire arm. Law The standards by which we review the legal and factual sufficiency of the evidence are found in Jackson v. Virgini a, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (197 9), Sims v. State, 99 S.W.3d 600 (Tex . Crim. Ap p. 2003), Zuliani v. State, 97 S.W.3d 58 9 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the parties to them for

an expl anation of those s tandards. Next, to be convicted of falsely identifying oneself a s a peace officer, the pe rso n must make, provide to another person, or posse ss “a car d , document, badge, insignia, sho ulder embl em, or other item bearing an insignia of a law enforcement agency that identifies a person as a peace officer .

. .” and “the person who makes, provides, or poss esses the item bearing the insignia [must know] that the person so identified by the item is not commissioned as a peace officer . . . a s indicated on the item. ” T EX . P EN . C ODE A NN . §37.12(a ) (Vernon 2003). Accordi ng to app ellant, t he State failed to satisfy the first1 A she riff is a con serv ator o f the pe ace in his c oun ty and sha ll arrest all off en der s ag ai nst

t he l aws of the St ate i n his view or hear ing and take them befo re the prop er co urt for ex am ination or trial. T EX . C ODE C RIM . P ROC . A NN . art 2. 17 (Vernon 1977). Thus, he i s charged with i nvestigat ing and enforci ng the laws o f the state. Rober tson County v . W ym ola, 17 S.W.3d 334, 341 (Tex. App. –Aus tin 2000, p et. denied ). Unqu estionably, then , a she riff is a law enfo rcem ent o fficial. See City of Waco v. St. Paul Fir e and Mari

ne Ins. Co ., 16 S.W.3d 101, 103 (Tex. App. – Ho usto n [1 st Dist.] 2 000 , no p et.). 3 elemen t b ecause the badge he wore was not an insignia of an “official” law enforcement agency s ince theRepubli c of Tex as was no n-existe nt. To the extent

appellant argues that the phrase “law enforcement agency” connotes an “official” agency recognized by law, wefind aut hority fo r the posi tion. Fallin v. State, 93 S.W.3d 394, 396 (Tex. App.–Houston [14 th Dist.] 20 02, pet. ref’d). So, it could be said that the entity which the defendant purports to represent must be an “official” law enforcement agency. And, wh ile it may be t hat the Republic of Texas is not such an agency, as appellant

concedes on appe al, the s ame is no t true of t he officeof “Sheri ff.” Indeed, state lawrecognizes that

a sheriff is a peace officer in Texas. T EX . C ODE C RIM . P ROC . A NN . art. 2.12(1) (Vernon Supp. 20 04-05). F urth erm ore, we take judicial notice that the office of sheriff involves both administrative and law enforcement duties. 1 Next, “a law enforcement agency” has been defined as “an agency of the state or an agency of

a political subdivision of the stateauthoriz ed by la w to empl oy peaceofficers. ” T EX . C ODE C RIM . P ROC . A NN . art. 59.01 (5) (Verno n Supp. 2 004-05); see also T EX . P EN . C ODE A NN . §37.08 (Vernon 20 03) (Fals e Report to PeaceOfficer o r L aw Enforcem ent Employee) (defining “law enforcement agency” by the definition found in article 59.01 of the Code of Criminal Procedure). And, not only are sheriffs and their deputies peace officers, T EX . C ODE C RIM . P ROC . A NN . art. 2.12 (1) (Vernon Supp . 200 4-05), but also the former is authorized to hire t he latter

. Therefore, we cann ot but con clude th at the off ice of “sh eriff”4

in Texas constitutes an “official” law enforcement agency. This, coupled with the evidence that the word “sheriff” appeared on the badge appellant wore, thebadge l ikened to others utilized by official law enforcement agencies in Texas, the badge contained a lone star (our state’s emblem), and the word “Texas” appeared in the star, constitutes sufficient evidence upon which a fact finder could ra tionall y conclu de, beyon d reasona ble doub t, that appellant posses se d an insignia of an official law enforcement agency identifying him as a commissioned peace officer. And, that the badge may h av e also contained language of an entity fa lling o utside th e scope o f such an agency d oes not re quire usto hold otherwise. See Davis v. State , No. 05-95-01499-CR, 1997 L EXIS 3282 at 7 -9 (Tex. App.–Dallas June 25, 1997, no writ) (not designated for publication)(wherein th e court found the evidence sufficient to support conviction because the identifying card possessed by Davis contained the words “Department of Public Safety” even though it also indicated that he held the post as an employee of a private rai lroad holdin g company). Finally, no other evidence of record, when co nsidered alone o r en masse would re nder the factual f inding to which we allude m anifestl y wrong o r unjust. Accordin gly, we o verrule t he two is sues and affirm thejudgment of the tri al court.

Brian Quinn Justice Publish

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