Donald Eric Cantwell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 4, 2023
• Docket: 02-22-00007-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00007-CR No. 02-22-00008-CR ___________________________

DONALD ERIC CANTWELL, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 90th District Court Young County, Texas Trial Court Nos. CR11695, CR11696

Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

A jury convicted Appellant, Donald Eric Cantwell, of assault on a public

servant and assessed punishment at seven years’ confinement and a $5,000.00 fine. In

a consolidated trial, the jury also convicted Appellant of escape while in custody and

assessed punishment at five years’ confinement. The trial court ordered the sentences

to run concurrently. Appellant brings three issues. He first argues that the trial court

violated his due process rights by limiting cross-examination on mens rea. In his second

issue, Appellant contends that the evidence is insufficient to support his convictions

because the evidence did not support a finding of intent. Appellant finally argues that

the trial court prevented him from establishing his self-defense action. We affirm.

BACKGROUOND

On January 20, 2021, Graham PD responded to a call involving a “verbal

altercation” at the residence of Frances Alvarez. Sergeant Christopher Post described

Alvarez as flustered and scared. Alvarez told Sergeant Post that Appellant, her

grandson, had been drinking all day and that he was destroying things in the house

and making holes in the walls. Sergeant Post waited for his partner to arrive before

confronting Appellant.

After Officer Huerta arrived, the officers went to the back porch of the

residence to contact Appellant. The officers observed that Appellant was drinking an

alcoholic beverage and that there were several empty alcoholic beverage containers

around the porch. Sergeant Post asked Appellant to talk, but Appellant did not want

2 to speak to him. Appellant was upset that he was not able to dry his socks inside the

house because the clothes dryer was broken, and he was using a heat lamp to dry his

socks.

Sergeant Post evaluated whether a crime had been committed and whether

Appellant was a danger to himself. Sergeant Post followed Graham PD protocol and

determined that a crime had not been committed and that Appellant did not need to

be taken into custody for a mental health evaluation. Sergeant Post went back inside

the residence to talk to Alvarez while Officer Huerta was standing by providing cover.

Sergeant Post informed Alvarez that, at that point in time, they did not have a reason

to detain Appellant for a mental health evaluation, but Sergeant Post explained the

process for her to obtain a mental health warrant.

While Sergeant Post was talking to Alvarez, Appellant approached Officer

Huerta and said that the officers had no right to be in the house and yelled for them

to get out. Appellant pushed Officer Huerta and swung at him several times, striking

him on the left arm and grazing the left side of his head. At this point, the officers

determined that a crime had been committed and called for backup to assist in taking

Appellant into custody. While waiting for backup, Appellant told the officers through

the back door, “We’re done,” and Sergeant Post replied, “We’re not done here. You

hit my officer.”

After the two backup officers arrived, all of the officers approached Appellant

and informed him that he was under arrest. Appellant did not comply with the

3 officers’ instructions to turn around and put his hands behind his back, but instead he

took a “boxer stance” and threatened the officers that if they were going to arrest

him, they were “going to go to fists.” The officers again advised Appellant that he was

under arrest. Appellant then walked toward Officer Huerta and shoved him. Officer

Huerta fell off of the elevated porch injuring his hip and his head.

The officers attempted to restrain Appellant, who was continuing to resist

arrest. One of the officers used his taser in an effort to detain Appellant. Officers had

to deploy the taser a second time in order to detain Appellant and place him in

handcuffs. Because the officers used the taser to restrain Appellant, they called for

EMS to come evaluate him.

While Appellant was being evaluated by EMS, Sergeant Post spoke with

Appellant’s family members. The two deputies who arrived for backup stayed with

Appellant while he was being evaluated. While still in custody and handcuffed,

Appellant took off running and fled from the deputies. The officers gave chase and

instructed Appellant to stop. The officers caught Appellant and placed him back in

custody. Appellant was again evaluated by EMS and then taken to jail.

SUFFICIENCY OF THE EVIDENCE

In the second issue, Appellant contends that the evidence is insufficient to

“support the necessary findings of criminal intention to support the elements for

conviction.”

4 A. Standard of Review

Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend XIV. The Jackson standard of review, which

is explained below, is the “only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d

126 (Tex. Crim. App. 1996)). “[W]e review the sufficiency of the evidence establishing

the elements of a criminal offense under the single sufficiency standard set out in

Jackson v. Virginia.” Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014).

In our evidentiary-sufficiency review, we view all evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The

factfinder alone judges the evidence’s weight and credibility. See Tex. Code Crim.

Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We

may not re-evaluate the evidence’s weight and credibility and substitute our judgment

for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine whether the

necessary inferences are reasonable based on the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d

5 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.

App. 2017) (“The court conducting a sufficiency review must not engage in a ‘divide

and conquer’ strategy but must consider the cumulative force of all the evidence.”).

We must presume that the factfinder resolved any conflicting inferences in favor of

the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608.

B. Substantive Law and Analysis

Appellant was charged with assault on a public servant and escape from

custody. Taking each crime individually, a person commits the offense of assault on a

public servant if he intentionally, knowingly, or recklessly causes bodily injury to a

person he knows is a public servant while the public servant is lawfully discharging an

official duty, or in retaliation or on account of an exercise of an official power or

performance of an official duty as a public servant. Tex. Penal Code Ann.

§ 22.01(a)(1), (b)(1). Bodily injury is defined as “physical pain, illness, or any

impairment of physical condition.” Id. § 1.07(8).

Officer Huerta testified that Appellant pushed him off of the porch causing

pain and bruising to his hip. Officer Huerta also injured his head during the fall and

suffered a possible concussion. According to Officer Huerta, the officers were in full

uniform, and Appellant appeared to know they were police officers. Sergeant Post

stated at trial that he was in full uniform when he first contacted Appellant and asked

to speak with him. When asked if anything would leave him to believe Appellant did

6 not have the ability to understand that he was talking to law enforcement, Sergeant

Post responded that Appellant understood he was dealing with law enforcement.

A person commits the offense of escape if the person escapes from custody

when the person is under arrest for, lawfully detained for, charged with, or convicted

of an offense. Tex. Penal Code Ann. § 38.06. Sergeant Post testified at trial that

Appellant was informed he was under arrest and that he was handcuffed and taken

into custody. While in custody, Appellant fled and had to be pursued by the officers

and taken back into custody.

Appellant specifically challenges that the evidence is insufficient to support a

finding beyond a reasonable doubt that he acted intentionally or knowingly. The State

argues that Appellant is attempting to prove diminished capacity, and Texas law does

not recognize a lesser form of the insanity affirmative defense, citing Jackson v. State, as

authority. Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005). As stated in Jackson,

Texas does not recognize diminished capacity as an affirmative defense. Jackson,

160 S.W.3d at 573. However, Appellant argues, as argued in Jackson, that the State

failed to prove he had the required state of mind at the time of the offense. See id. In

Jackson, the Court found that relevant evidence may be presented that the jury may

consider to negate the mens rea element. Id. at 574. Therefore, we will review the

evidence to determine whether any rational factfinder could have found the element

of intentionally and knowingly beyond a reasonable doubt. See id. at 575.

7 The State presented testimony that Appellant wrapped his hands in towels,

yelled at Officer Huerta to get out of the house, pushed Officer Huerta, and then

swung at Officer Huerta, striking his arm. When told he was under arrest, Appellant

took a boxer stance and told the officers, “[i]f you are going to arrest me, we’re going

to go to fists.” The officers were in full uniform when they talked to Appellant. The

jury also viewed the body camera videos from Sergeant Post and Officer Huerta.

On the body camera video, Alvarez explained to Sergeant Post that Appellant

has been to the mental hospital in Wichita Falls and that he needed to stay there.

Officers informed Appellant that his grandmother asked them to come, but Appellant

repeatedly told them to leave. Sergeant Post told Alvarez that Appellant was having a

mental health issue. After Appellant was placed under arrest, Sergeant Post discussed

Appellant’s mental health with his family members who arrived at the scene. Officer

Huerta’s body camera video also showed a discussion on Appellant’s mental health

with family members. Officer Huerta told the family members that MHMR would be

contacted. At trial on cross-examination, Appellant questioned Sergeant Post about

statements he had made in the body camera video concerning Appellant’s mental

health. Sergeant Post acknowledged on cross-examination that he told family

members that Appellant would get the help that he needed.

Also on cross-examination, Appellant asked Sergeant Post about the protocol

for having a forced intervention for a mental health evaluation. Appellant specifically

asked Sergeant Post about Appellant’s state of mind at the time of the offense:

8 Q: What made you believe that [Appellant] had the state of mind where he was not confused not talking nonsense but he actually was informed and consciously, objectively was taking the action of breaking the law, sir?

A: Because I’m not in a position to determine whether a person is mentally fit or unfit, ma’am, because I’m not a doctor.

Q: I asked when you first saw that you thought he had the capacity though because you heard he might not?

A: Well, he recognized who we were. We had a conversation. Yes. Did he go off in right field sometimes? Yes, but he still answered our questions. He was poignant to the point of he knew who we were. He recognized our authority, so to me that infers as a person that he knows what’s going on. And he came screaming to my officer - - come to find out after the fact that he was screaming for him to leave. He knew who my officer was and didn’t want him in his house.

Q: Did that seem like nonsense to you?

A: No, ma’am.

Q: So you thought he was making sense? He was tracking? He was tethered to the ground?

A: Well, I think that alcohol played a factor in this because people that are drinking, regardless of the amount consumed, people’s minds and perception of things changes. So I couldn’t - - I don’t - - I’m not there to discern whether it’s the state of intoxication or if it the - - whether he has or doesn’t have a mental health issue.

A requisite culpable mental state, mens rea, is almost always proven by

circumstantial evidence. See Stobaugh v. State, 421 S.W.3d 787, 862 (Tex. App.—Fort

Worth 2014, pet. ref’d). The jury was able to make inferences on Appellant’s mental

state from the testimony at trial and the body camera videos. Sergeant Post testified

9 that, although he is not able to determine whether a person is mentally fit or unfit, he

believed Appellant had the requisite mental intent to commit the offenses.

The jury heard evidence of Appellant’s capacity and state of mind at the time of

the offenses. The jury evaluates the evidence’s weight and credibility. Martin,

635 S.W.3d at 679. We may not re-evaluate the evidence’s weight and credibility and

substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. The jury

considered the evidence and believed that the State proved each element of the

offense of assault on a public servant, including the mens rea of intentionally and

knowingly. Jackson, 160 S.W.3d at 573. We hold that the evidence is sufficient to prove

beyond a reasonable doubt that Appellant committed assault on a public servant and

escape from custody. We overrule the second issue.

CROSS-EXAMINATION

In the first issue, Appellant argues that the trial court violated his due process

rights by failing to allow him to cross-examine witnesses about his state of mind. In

this issue, Appellant complains only that the trial court limited his cross-examination

of the State’s witnesses—not that the trial court denied him an opportunity to present

evidence or witness testimony concerning his mental state. Appellant does not

specifically identify any particular evidence he was prevented from offering or any

testimony he was prevented from eliciting.

10 Standard of Review

We review the trial court’s decision to admit or exclude evidence—including its

decision regarding whether the danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence

substantially outweighs the disputed evidence’s probative value—under an abuse-of-

discretion standard. Gonzales v. State, 544 S.W.3d 363, 370, 372 (Tex. Crim. App.

2018). Decisions lying outside the zone of reasonable disagreement constitute an

abuse of discretion. Id. at 370. Provided that the trial court’s ruling falls within the

reasonable-disagreement zone, we may not substitute what we would have done for

what the trial court actually did. Id.

Applicable Law

Appellant relies on Ruffin v. State to support his argument that testimony

concerning a defendant’s state of mind is admissible when such testimony may be

relevant to rebut or disprove the defendant’s culpable mens rea. 270 S.W.3d 586, 594–

95 (Tex. Crim. App. 2008). In Ruffin, the Court reaffirmed its holding in Jackson and

held that both lay and expert testimony of a mental disease or defect that directly

rebuts the particular mens rea necessary for the charged offense is relevant and

admissible unless excluded under a specific evidentiary rule. Id. at 587–88.

However, the evidence must still meet the admissibility requirements of Rule of

Evidence 403. Jackson, 160 S.W.3d at 574. Under Rule 403, the trial court may exclude

relevant evidence if the probative value of the evidence “is substantially outweighed

11 by a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex.

R. Evid. 403. Even if evidence is relevant to an element of the offense, the trial court

still must determine whether the evidence is admissible. Jackson, 160 S.W.3d at 574.

The trial judge has discretion to determine whether evidence of mental illness may be

presented to negate the element of mens rea, or whether the evidence should be

excluded on special grounds. Id.

Analysis

The record shows that on cross-examination, Appellant was permitted to ask

Sergeant Post his position on Appellant’s mental health. Sergeant Post acknowledged

that he is not a mental health professional and explained the police department’s

policy for a forced intervention for a mental health evaluation. The trial court

encouraged Appellant’s counsel to question Sergeant Post about mental health as it

relates to the offenses rather than discuss the process for obtaining a mental health

warrant and the mental health treatment process after arrest. As previously set out in

detail, Appellant’s counsel was able to question Sergeant Post extensively about

Appellant’s capacity and state of mind at the time of the offense.

Appellant’s counsel asked Officer Huerta on cross-examination, “How did you

perceive [Appellant’s] state of mind that evening?” Officer Huerta responded, “In my

opinion, I believe he was intoxicated and he had mental health issues.” Appellant’s

12 counsel was able to ask Officer Huerta how he addressed Appellant’s mental health

issues.

The trial judge has discretion to determine whether evidence of mental illness

may be presented to negate the element of mens rea. Jackson, 160 S.W.3d at 574. The

record shows that the trial court allowed cross-examination on Appellant’s state of

mind at the time of the offense. The trial court limited questioning on the

requirements for obtaining a mental health warrant and the mental health procedures

at the jail. In Ruffin, the Court found that the expert testimony of the psychologist was

relevant to the issue of whether the defendant intended to shoot at police officers.

Ruffin, 270 S.W.3d at 596. Unlike Ruffin, there was no mental health expert offered to

discuss Appellant’s mental state at the time of the offense or any history of mental

illness. Appellant does not specifically identify any particular evidence that he was

prevented from offering or any specific testimony that he was prevented from

eliciting. We do not find that the trial court’s rulings concerning the admission of

evidence to negate the element of mens rea to be an abuse of discretion. See Jackson,

160 S.W.3d at 574. We overrule the first issue.

SELF-DEFENSE

In the third issue, Appellant argues that the trial court’s limitations on his cross-

examination and refusal of evidence of his mental state prevented him from raising

self-defense. He contends that he was not afforded the opportunity to “test the

13 witnesses[’] representations regarding his intent or knowledge in a meaningful way”

and that such denial prejudiced the jury.

Substantive Law and Analysis

A person is justified in using force against another when and to the degree that

the actor reasonably believes the force is immediately necessary to protect the actor

against the other’s use or attempted use of unlawful force. Tex. Penal Code Ann.

§ 9.31(a). The use of force against another is not justified to resist an arrest or search

that the actor knows is being made by a peace officer even though the arrest or search

is unlawful. See id. § 9.31(b)(2).

Appellant told the officers that if they were going to arrest him, “we’re going to

go to fists.” Appellant was not justified in using force against the officers to resist

arrest. See id. § 9.31(b)(2). In addition, self-defense is a confession-and-avoidance

defense requiring the defendant to admit to his otherwise illegal conduct. Jordan v.

State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). There is nothing in the record to

indicate that Appellant satisfied the confession-and-avoidance prerequisite to

obtaining a self-defense instruction. Appellant has not shown that he was improperly

prevented from raising self-defense. Moreover, having found in the first issue that the

trial court did not abuse its discretion in the rulings on the admission of testimony

concerning Appellant’s mental state, we do not find that those rulings prevented him

from raising self-defense. We overrule the third issue.

14 CONCLUSION

Having overruled Appellant’s three issues, we affirm the trial court’s judgments.

/s/ Mike Wallach Mike Wallach Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: May 4, 2023