Horace Alexander v. State

• Court: Court of Appeals of Texas
• Decided: January 27, 2009
• Docket: 14-08-00124-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 27, 2009

Affirmed and Memorandum Opinion filed January 27, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00124-CR

HORACE ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232^nd District Court

Harris County, Texas

Trial Court Cause No. 1069078

M E M O R A N D U M   O P I N I O N

A jury found appellant, Horace Alexander, guilty of assault on a public servant.  See Tex. Penal Code Ann. ' 22.01(b)(1) (Vernon 2003).        Enhanced with two prior felony convictions, the trial court assessed punishment at twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In two issues, appellant argues (1) the evidence is legally and factually insufficient to support his conviction; and (2) he received ineffective assistance of counsel.  We affirm.

Factual and Procedural History

On May 16, 2006, Deputy Brian Thomas Rice, together with his partner Manuel Diaz,  arrived at appellant=s home to serve him with an apprehension and detention order to transport him to a hospital for a mental evaluation.  Deputy Rice was dressed in plain clothes with his badge clearly visible around his neck.  After Deputy Rice advised appellant of his intentions, appellant told the deputy he was not going to the hospital.  However, appellant complied by placing his hands behind his back when he observed Deputy Rice=s taser, and was handcuffed by Deputy Diaz.  Appellant was apparently upset by the deputies and cursed them.^[1]  The officers subsequently transported appellant in their vehicle to Twelve Oaks Hospital.

At the hospital, Deputy Rice, Deputy Diaz, and Nathaniel Jones, a security officer with the hospital, escorted appellant to the admissions area.  Immediately after Deputy Rice removed appellant=s handcuffs, appellant turned around and punched Deputy Rice in the face with a closed fist, causing the deputy considerable pain and swelling.  Appellant then stepped forward a few steps, turned around, and took a fighting stance.  During the incident, appellant yelled, Abitch.@  Deputy Diaz and Mr. Jones assisted Deputy Rice in regaining control of appellant.

During trial, Dr. Shayna Lee, M.D., a psychiatrist, testified appellant suffers from paranoid schizophrenia, is delusional, and is mentally ill.  She testified he suffers from diminished capacity as a result of his mental illness.  She also testified that external stimuli, such as seeing police officers in uniform, may set in motion his paranoid delusions.  During cross examination she admitted appellant, during the offense, could have been acting out of aggression, rather than a delusion, because he did not like the situation he was in.

The jury found appellant guilty of assault on a pubic servant.  Appellant entered a plea of Atrue@ to the two enhancement paragraphs for prior felony convictions.  The trial court found the allegations in the enhancement paragraphs true and assessed appellant=s punishment at twenty-five years= confinement in the Institutional Division in the Texas Department of Criminal Justice.

Discussion

A.      Was the evidence legally and factually sufficient?

In his first issue, appellant argues the evidence is legally and factually insufficient to support his conviction for assault on a public servant. 

1.       Standard of Review

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness= testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005).  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

2.       Analysis

A person commits the crime of assault on a public servant if he: (1) intentionally, knowingly, or recklessly causes bodily injury; (2) to a person the actor knows to be a public servant; and (3) while the public servant is lawfully discharging an official duty.  Tex. Penal Code Ann. ' 22.01(b)(1).  The actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating employment as a public servant at the time.  Id. ' 22.01(d). 

Appellant argues the following conflicting evidence substantially outweighs the evidence favoring his conviction and undermines the jury=s verdict: (1) appellant is a mentally ill person; (2) appellant suffers from paranoid schizophrenia; (3) Dr. Lee reported that the external stimuli of the police officer and the handcuffs set off appellant and he engaged in violent behavior because of his mental illness rather than because he wanted to engage in such behavior; and (4) the lack of evidence as to planning, aggressive posturing prior to the incident occurring, and Deputy Rice being blind sided by the attack.

Evidence supporting appellant=s conviction was presented through testimony by Deputy Rice, Mr. Jones, and Sherrell Jina Sheppard, a social worker at the hospital.  The witnesses testified appellant struck Deputy Rice with a closed fist in the face after his hand cuffs were removed, and then took a fighting stance.  They also testified appellant cursed at the officers.  Furthermore, during cross-examination, Dr. Lee testified as follows:

Q:      Someone whose [sic] paranoid schizophrenic may act out of aggression not because of schizophrenia or delusional [sic] but because they don=t like the situation they=re in?

A:      That=s correct.

Hearing this, the jury is free to disbelieve appellant acted out of being mentally ill, but rather out of aggression.  It is within the sole province of the jury to reconcile conflicts, contradictions, and inconsistencies in the evidence.  Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927, 113 S. S.Ct. 3048, 125 Led.2d 732 (1993).  Here, the jury heard and considered the inconsistencies in the testimony and, based on the evidence before it, determined appellant was guilty  of assault on a public servant.

Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support appellant=s conviction for assault on a public servant because any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See Salinas, 163 S.W.3d at 737.  Viewing the evidence in a neutral light, we hold the evidence supporting the verdict is neither so weak the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong the beyond-a-reasonable-doubt standard could not have been met.  See Prible, 175 S.W.3d at 730-31.  Thus, the evidence is factually sufficient to support appellant=s conviction.  We overrule appellant=s first issue.

B.      Did appellant receive ineffective assistance of counsel?

Appellant contends he received ineffective assistance of counsel because his trial counsel failed to contest appellant=s competency between the September 21, 2007 report finding appellant incompetent to stand trial and the trial court=s restoration of competency order on February 5, 2008.

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d at 740 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different.  Id.

Appellant concedes he fails to meet the first prong of the test and does not brief the second prong.^[2]  Thus, we need not address appellant=s ineffective assistance of counsel claim.  See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (waiving the issue by failing to present adequate argument and authorities as required by Texas Rule of Appellate Procedure 38.1(h)).  Accordingly, we overrule appellant=s second issue.

Conclusion

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

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^[1]  Stating: AI hate you MFers.  You know I=m B you know I don=t need to go to the hospital.  I hate y=all.  Y=all need to leave me alone.@

^[2]  The language in Appellant=s brief is the following: ATherefore, based upon the record presented, the first prong of the [test] has clearly not been met.  The second prong need not be addressed.@