Opinion issued January 17, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00648-CR ——————————— CLEMMIE ELNORA ST. AMAND, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1182011
MEMORANDUM OPINION
A jury found appellant, Clemmie Elnora St. Amand, guilty of third-degree-
felony assault of a public servant.1 The trial court assessed her punishment at two
1 See TEX. PENAL CODE ANN. § 22.01(b)(1) (Vernon 2011). years’ probation. In four issues, appellant argues that (1) the evidence was legally
insufficient to support the finding that she knew the complainant was a public
servant; (2) she was denied effective assistance of counsel; (3) the trial court erred
in denying her the right to confront and cross-examine a witness to establish bias;
and (4) the trial court erred in denying her the right to admit evidence of multiple
subpoenas and to cross examine a witness concerning the documents sought by the
subpoenas and the failure to respond to the subpoenas.
We affirm.
Background
Appellant’s autistic son attended a special-needs program at Bailey Middle
School, a school in Spring Independent School District located in Harris County.
On September 5, 2008, during the second week of classes, appellant attempted to
drop her son off at school by knocking on a side door, which was marked, “STOP!
Not an Entrance.” This door was not used as an entrance for parents dropping off
students.
Cynthia Howlett, a dyslexia specialist, testified that she answered the door at
about 8:15 or 8:30 a.m., and appellant told her she was there to drop off her son.
Howlett testified that she told appellant that no teachers were there yet, and
appellant should wait while Howlett found someone to take her son. Howlett
testified that she called for the complainant, Elizabeth Dill, who worked at the
2 school as a paraprofessional. She testified that appellant seemed “irate,” so, after
Dill approached, Howlett went back into her classroom to type a report about this
interaction and to call for an administrator.
Dill testified that she arrived at school that day around 8:15 a.m. and heard
Howlett ask for her help with a parent. She testified that she approached and spoke
to appellant about proper student drop-off procedures. Both appellant and Dill
testified that this was the first time they had ever met each other. Appellant told
Dill that she needed to leave her son there so that she could drop off her daughter
at another school.
Howlett and Dill testified that appellant’s son proceeded to walk past the
talking adults into one of the classrooms. Jerrard Stanley, another paraprofessional
who was familiar with appellant’s son, escorted him to the correct classroom while
appellant and Dill spoke. Appellant’s son then approached Dill, who began
unpacking his backpack. Appellant approached and told Dill she would unpack
her son’s backpack herself. She told Dill that she would not leave her child
unattended with Dill. Dill stuck her arm in front of appellant, telling her that this
was part of her son’s everyday routine. Dill stated that, while both women had
their hands on the backpack, appellant struck her chest with her fist. Dill fell back
onto a desk and sustained bruising. Howlett testified that she heard yelling, but she
did not witness the assault because she was in her classroom.
3 Stanley testified that he was in the room with Dill when Howlett told them
there was a parent outside. Stanley had met appellant previously because her son
had been assigned to Stanley’s room at the beginning of the year. Stanley stated
that appellant’s son had attended the first day of school in his classroom, but he
had not returned after the first day. He understood that appellant “was unhappy
about the first day” because her son “came home with a soiled diaper.” Stanley
testified that he had not been aware that the student had soiled his diaper at school,
and if he had known, he would have changed him. Stanley stated that even after
the student was transferred to another classroom, Stanley still interacted with him
because the two special-education classrooms interact throughout the day.
Regarding the complaint about the soiled diaper, Stanley testified, “You never
want something like that to happen because you . . . want to do your best.” He
believed the actual complaint was directed at appellant’s son’s teacher and not at
him, as the paraprofessional.
Stanley testified that appellant became upset when her son entered his
former classroom. Appellant accused Stanley and Dill of allowing her son to walk
off, and she claimed they were not paying attention to him. Stanley stated that he
and Dill attempted to calm appellant, and he told her that it was okay, that the
students went in and out of both classrooms all day, and that he would get her son.
Stanley then directed the student across the hall to his new classroom. Stanley was
4 observing Dill attempting to help the student unload the contents of his backpack
when appellant approached Dill, attempted to pull the backpack away, and told
Dill that she would take care of her son’s backpack. He then saw appellant strike
Dill with a closed fist. Stanley stepped between the two women and told appellant
that she needed to leave. Appellant “stormed” out of the room and yelled.
On cross-examination, appellant’s counsel began to question Stanley about
the student’s first day and the incident with the soiled diaper. Counsel asserted that
the State had opened the door by questioning Stanley about his prior relationship
with appellant’s son and the reason he was transferred to a different classroom.
Counsel sought to question Stanley further about the issue to demonstrate his bias
against appellant. The trial court allowed her to “ask him if there was a complaint
filed by [appellant] against him based on an incident that occurred the first day of
school, the second day of school.” The trial court ruled, “We’re not going to go
into this soiled diaper incident.” The trial court also stated that appellant could ask
whether “there [was] an incident in which there was an argument between
[Stanley] and [appellant] after a complaint was filed. . . .”
Appellant’s counsel then questioned Stanley regarding the filing of a
complaint on or around the first day of school. Stanley again testified that there
“was an issue” and that he assumed that appellant had directed her concern at her
son’s teacher. Stanley testified that appellant met with the teacher and principal at
5 that time, but he was not allowed to stay in the meeting because they had agreed
that the paraprofessionals would not be involved. Stanley stated that he believed
appellant’s son was transferred to a different classroom because of the soiled
diaper incident, but “they never talked to [him] directly about it.” Appellant’s
attorney asked, “Okay, now whose responsibility is it for, if a diaper has to be
changed?” The State objected on the basis of relevance, and the trial court
sustained the objection. Appellant’s attorney moved on to a new line of
questioning. Appellant never made an offer of proof or bill of exception regarding
any testimony she was prevented from eliciting from Stanley.
Appellant testified on her own behalf. She stated that she had not met Dill
prior to arriving at the school on the morning of the incident. She testified that she
had dropped her son off at the side door before and that she was uncertain why
there was a problem dropping him off that morning. Appellant testified that, once
she and her son had entered the correct classroom, her son went to Dill and Dill
helped him remove his backpack. Appellant stated that she asked Stanley, who
was also in that same room, whether it was okay for her to leave her son there, and
he told her it was fine because the students “float from class to class.” Dill then
began helping the student unload his backpack. Appellant approached and told her
“that’s okay because I’m going to take my son with me.” Appellant testified that
Dill then pulled the backpack away from appellant’s reach and appellant “fell into
6 her.” At that point, Stanley approached, took the backpack, and “then they started
saying that [appellant] assaulted [Dill].”
Appellant introduced a recording of the school district police department’s
dispatch call regarding the incident and played it for the jury. Appellant also
sought to introduce multiple subpoenas she had issued in an attempt to procure the
recording. The State objected to the admission of the subpoenas on the basis of
relevance. Appellant argued that the subpoenas went unanswered and were
relevant to show that the school district did not want to comply with appellant’s
investigation of the case. The trial court sustained the objection.
The jury found appellant guilty of assault of a public servant. This appeal
followed.
Sufficiency of the Evidence
In her first issue, appellant contends that the evidence was legally
insufficient to sustain her conviction because there was no evidence that she knew
the complainant was a public servant.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
7 Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury’s determinations of credibility. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). 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); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to
that determination.”).
8 B. Analysis
A person commits assault if the person intentionally, knowingly, or
recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1)
(Vernon 2011). If the assault is committed against “a person the actor knows is a
public servant while the public servant is lawfully discharging an official duty,” the
statute provides for increased punishment. Id. § 22.01(b)(1). A “public servant” is
defined as a “person . . . employed, or otherwise designated as . . . an officer,
employee, or agent of the government.” Id. § 1.07(a)(41)(A) (Vernon Supp. 2012).
An independent school district is an agency of the state. Guin v. State, 209 S.W.3d
682, 684 (Tex. App.—Texarkana 2006, no pet.); Moore v. State, 143 S.W.3d 305,
311 (Tex. App.—Waco 2004, pet. ref’d) (holding that school superintendent is
“public servant” under section 1.07(a)(41)(A)); see also In re J.P., 136 S.W.3d
629, 630 (Tex. 2004) (noting that juvenile commits assault on public servant
pursuant to section 22.01(b)(1) by hitting and kicking public school teacher);
Powell v. State, 549 S.W.2d 398, 400 (Tex. Crim. App. 1977) (holding that school
district is branch of government).
Appellant argues that the State failed to prove that she knew that Dill was a
public servant discharging an official duty. Appellant argues that she had not met
Dill prior to the incident, no one identified Dill as a school employee, and Dill was
not wearing a uniform or a badge identifying her as a school employee.
9 In this case, when appellant sought to leave her son at the school, Howlett
summoned Dill to help her. Dill came to the door to take appellant’s son. She
discussed with appellant the school’s drop-off procedures and explained that no
visitors were allowed in the school unless they had come through the front office.
Appellant testified that her son approached Dill, and Dill helped her son remove
his backpack. Appellant observed that Stanley—a paraprofessional whom
appellant knew had worked with her son previously—was also in the room with
Dill. Dill relayed to appellant that she and the student had a morning routine
together. After appellant allegedly struck Dill, appellant sought to report the
incident to the school principal.
When we consider the facts in the light most favorable to the verdict, we
conclude the jury could infer that appellant knew Dill was an employee of the
school discharging her duties. See Hooper v. State, 214 S.W.3d 9, 14–15 (Tex.
Crim. App. 2007) (holding that jury is permitted to make reasonable inferences
from evidence). Dill was present in the classroom at the start of the school day;
she was summoned by a teacher to help appellant and her son; she had knowledge
of school policies; and she demonstrated a familiar demeanor toward the student
and other school staff.
Appellant cites Arnold v. State and argues that, because Dill never identified
herself as a public servant and was not wearing a badge or some other distinctive
10 clothing or identification, the State failed to establish that appellant knew Dill was
a public servant. See 659 S.W.2d 45, 46–47 (Tex. App.—Houston [14th Dist.]
1983, no pet.) (upholding conviction for assault of public servant when officer
testified that although he was not in uniform at time of assault, he identified
himself as officer to assailant). However, appellant cites no authority, nor could
we find any, indicating that such an explicit identification is required.
We overrule appellant’s first issue.
Ineffective Assistance
In her second issue, appellant argues that her trial counsel was ineffective for
failing to make a bill of exception regarding the excluded testimony of Jerrard
Stanley concerning the soiled diaper incident.
To make a showing of ineffective assistance of counsel, an appellant must
demonstrate that (1) his counsel’s performance was deficient and (2) there is a
reasonable probability that the result of the proceeding would have been different
but for his counsel’s deficient performance. See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Cannon v. State, 252 S.W.3d 342,
349 (Tex. Crim. App. 2008). The appellant must prove ineffectiveness by a
preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010). “Failure of appellant to make either of the required showings of
11 deficient performance and sufficient prejudice defeats the claim of ineffective
assistance.” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see
also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An
appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.”).
The appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). The second prong of Strickland requires the appellant to demonstrate
prejudice—a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review
is highly deferential to counsel, and we do not speculate regarding counsel’s trial
strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To
12 prevail, the appellant must provide an appellate record that affirmatively
demonstrates that counsel’s performance was not based on sound strategy. See
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at
813 (holding that record must affirmatively demonstrate alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65
S.W.3d at 63. Because the reasonableness of trial counsel’s choices often involves
facts that do not appear in the appellate record, the Court of Criminal Appeals has
stated that trial counsel should ordinarily be given an opportunity to explain his or
her actions before a court reviews that record and concludes trial counsel was
ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v.
State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Massaro v. United
States, 538 U.S. 500, 504–05, 123 S. Ct. 1690, 1694 (2003) (emphasizing
importance of developing record specifically addressing sufficiency of counsel’s
representation and stating, “When an ineffective-assistance claim is brought on
direct appeal, appellate counsel and the court must proceed on a trial record not
developed precisely for the object of litigating or preserving the claim and thus
often incomplete or inadequate for this purpose”).
13 B. Analysis
Appellant sought to question Stanley about her son’s first day and the
incident with the soiled diaper. Appellant asserted that the State had opened the
door by questioning Stanley about his prior relationship with appellant’s son and
the reason he was transferred to a different classroom, and she intended to
demonstrate Stanley’s bias against her. The trial court allowed her to ask Stanley
about any complaints appellant had filed against him based on the incident from
the first day of school and whether “there [was] an incident in which there was an
argument between [Stanley] and [appellant] after a complaint was filed,” but the
trial court refused to allow appellant to question Stanley regarding the details of the
incident itself.
Appellant questioned Stanley regarding the filing of a complaint on or
around the first day of school. Stanley testified that there “was an issue” and that
he assumed that appellant had complained about her son’s teacher. Stanley stated
that he believed appellant’s son was transferred to a different classroom because of
the soiled diaper incident, but “they never talked to [him] directly about it.”
Appellant’s attorney asked, “Okay, now whose responsibility is it for, if a diaper
has to be changed?” The State objected on the basis of relevance, and the trial
court sustained the objection. Appellant’s attorney moved on to a new line of
14 questioning. She never made an offer of proof or bill of exception regarding any
testimony she was prevented from eliciting from Stanley.
Appellant argues that her counsel’s failure to make a bill of exception
regarding Stanley’s testimony “denied [her] the right to convince the court to allow
[her] to explore the potential bias of a witness” and that this error was clearly
prejudicial and undermined confidence in the outcome of the trial. However,
appellant did not assert ineffective assistance of counsel in her motion for new
trial, and her counsel has not testified regarding her reasoning for not making a bill
of exception in relation to Stanley’s testimony. As the Court of Criminal Appeals
has stated, “[T]rial counsel should ordinarily be afforded an opportunity to explain
[her] actions before being denounced as ineffective.” Rylander, 101 S.W.3d at
111. Without more than the arguments made here by appellant, we cannot
determine whether her trial counsel acted in accordance with a reasonable strategy.
See id.; Bone, 77 S.W.3d at 833; see also Massaro, 538 U.S. at 504–05, 123 S. Ct.
at 1694 (stating that appellate record is typically insufficient to support ineffective
assistance claim because it does not reflect reasons for counsel’s acts or
omissions); Mitchell, 68 S.W.3d at 642 (“The reasonableness of counsel’s choices
often involves facts that do not appear in the appellate record.”).
Thus, appellant has failed to establish her claim of ineffective assistance of
counsel. See Strickland, 466 U.S.at 687, 104 S. Ct. at 2064; Cannon, 252 S.W.3d
15 at 349; see also Rylander, 101 S.W.3d at 110 (holding that failure to establish
either prong defeats claim of ineffective assistance).
We overrule appellant’s second issue.
Excluded Evidence
In her third issue, appellant argues that the trial court erred in denying her
the right to admit evidence of her previous dispute with Stanley concerning a
soiled diaper. In her fourth issue, appellant argues that the trial court erred in
denying her the right to admit evidence of multiple subpoenas issued to the police
department and to cross-examine a witness regarding that evidence.
We review a trial court’s decision to exclude evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its
discretion if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d
531, 538 (Tex. Crim. App. 2002). We will uphold the trial court’s evidentiary
ruling if it was correct on any theory of law applicable to the case. See De La Paz
v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
16 B. Jerrard Stanley’s Testimony
Appellant argues that she sought to introduce evidence that she had a
previous dispute with Stanley concerning a soiled diaper because the State opened
the door and because the evidence would have been probative of Stanley’s bias
against her. She argues that the trial court denied her the right to confront and
cross-examine Stanley regarding this previous dispute. However, she failed to
preserve this error for consideration on appeal.
In order to preserve error regarding a trial court’s decision to exclude
evidence, the complaining party must comply with Texas Rule of Evidence 103.
Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Rule 103 provides,
in relevant part, that error may not be predicated upon a ruling that excludes
evidence unless “the substance of the evidence was made known to the court by
offer, or was apparent from the context within which questions were asked.” TEX.
R. EVID. 103(a)(2); see also Mays, 285 S.W.3d at 889 (holding that offer of proof
may consist of concise statement by counsel or may be in question-and-answer
form). Appellant made no such offer of proof regarding the testimony she wished
to elicit from Stanley regarding the conflict over the soiled diaper. Thus, she failed
to preserve this complaint for appellate review. See Mays, 285 S.W.3d at 889.
We overrule appellant’s third issue.
17 C. Subpoenas for the Dispatch Tape
Appellant further argues that the trial court violated her Sixth Amendment
confrontation right because it refused to admit evidence showing bias against her.
Appellant argues that the trial court erred in denying her the right to admit
seventeen unanswered subpoenas requesting production of a recording of the
dispatch call made regarding the incident and to question the records custodian to
establish bias against her.
Here, appellant—not the State—sought to introduce multiple subpoenas
obtained by her in an attempt to procure the recording, and she sought to question
the custodian of the police records regarding the unanswered subpoenas. The State
objected on the basis of relevance. Appellant argued that the subpoenas went
unanswered and were relevant to show that the school district did not want to
comply with her investigation of the case. Appellant further argued that “right
now it is our turn to present a case” and that the subpoenas “are certified copies
under the Rule in reference to a 911 tape.” Appellant further argued that her
questions for the records custodian were “not pertaining to anything that’s outside
the scope of what his duties are” and were “very relevant in reference to our theory
of the case.” The trial court sustained the State’s objection. Appellant did not
raise an objection on the basis of the Sixth Amendment or on the basis of her right
to confront or cross-examine the witnesses against her.
18 To preserve a complaint for review on appeal, a party must make a timely,
specific request, objection, or motion to the trial court that states the grounds for
the ruling sought, and the trial court must rule on the request, objection, or motion.
TEX. R. APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510 (Tex. Crim. App.
2001). Furthermore, the complaint on appeal must comport with the trial
objection. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).
At trial, appellant argued only that these documents and testimony were
relevant to her case in chief. She did not assert that confronting or cross-
examining the records custodian—a witness whom she called—would aid her
defense in any way, nor did she argue that the failure to admit the subpoenas and
any related testimony would violate her rights under the Sixth Amendment. Thus,
appellant’s objection in the trial court did not preserve any appellate complaint
regarding her Sixth Amendment right of confrontation. See TEX. R. APP. P.
33.1(a); Swain, 181 S.W.3d at 367; see also Muniz v. State, 851 S.W.2d 238, 255
(Tex. Crim. App. 1993) (holding that failure to timely and specifically object
waives even constitutional rights).
We overrule appellant’s fourth issue.
19 Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).