Martinez, Ricardo v. State

• Court: Court of Appeals of Texas
• Decided: July 24, 2003
• Docket: 08-01-00358-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICARDO MARTINEZ,                                      )

                                                                              )               No.  08-01-00358-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                 409th District Court

THE STATE OF TEXAS,                                     )

                                                                              )            of El Paso County, Texas

Appellee.                           )

                                                                              )                (TC# 20000D04686)

                                                                              )

O P I N I O N

Ricardo Martinez appeals his conviction for the offense of aggravated assault on a public servant, enhanced by a prior felony conviction.  The jury found Appellant guilty and after finding the enhancement paragraph to be true, assessed punishment at 15 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  In Issues One through Five, Appellant challenges the legal and factual sufficiency to support his conviction, the trial court=s granting of a motion to quash a subpoena for a defense witness, and the trial court=s denial of his requested instructions on a lesser included offense and self-defense.  In Issue Six, Appellant asserts that his trial counsel rendered ineffective assistance by failing to subpoena the District Attorney and/or assistant district attorneys to support Appellant=s defense theory.  We affirm.

SUMMARY OF THE EVIDENCE

On April 20, 2000 around mid-morning, Officer Jared Lamb was on routine patrol in a marked police car when he saw the driver of a tan pickup truck run a stop sign.  Officer Lamb noted that the truck had a large magnetized sign on its side door advertising a refrigeration business.  Officer Lamb turned on his overhead lights to stop the truck.  The vehicle pulled over and Officer Lamb approached the driver, later identified as Appellant.  Officer Lamb asked Appellant how he was doing.  Appellant replied, not too well because he was caught running a stop sign.  Officer Lamb asked Appellant for identification and proof of insurance.  Appellant told Officer Lamb that he did not have any.  Officer Lamb then began taking notes on the business information he observed on the truck and asked Appellant for his name and date of birth.  Officer Lamb told Appellant that he would be right back and proceeded to walk behind his patrol vehicle to start writing the citations.  Officer Lamb had just begun a radio check for outstanding warrants when he looked up and saw Appellant driving off in the truck.  Officer Lamb testified that he had not told Appellant that he could leave and that Appellant knew why he had been stopped.  Police department policy prohibited pursuit, so Officer Lamb did not attempt to chase Appellant.  Instead, Officer Lamb gave radio dispatchers the information he had on Appellant.  Since Officer Lamb was still in the area, the dispatchers reported back to him that Appellant had an outstanding warrant.

Officer Ricardo Diaz, the complainant, testified that on April 20, 2000, he was assigned to the El Paso Police Department=s Impact Team, a plain-clothes surveillance and investigations unit for the area.  That morning Officer Diaz was working with other officers dressed in regular civilian clothes when they were dispatched information on a subject who had fled from Officer Lamb.  The dispatcher told the officers Appellant=s name and the type of vehicle he was driving.  Officer Diaz and his fellow officer David Carrasco set up surveillance at American Refrigeration Company, located at 5408 Dailey.  Officers Diaz and Carrasco had been meeting with Mr. Mena, the owner, inside the business office for about fifteen or twenty minutes before Appellant arrived at the front gate, driving a pickup truck.  Because the entrance gate was not completely open, Appellant parked in the driveway of the business off of Dailey Street.  When the pickup truck stopped, Officer Diaz told Mr. Mena to let the vehicle drive in, but instead Mr. Mena went out to open the gate and started talking to Appellant.  Officer Carrasco felt that Appellant was going to flee again, so the officers approached the gate area and identified themselves as police officers.  In identifying themselves, the officers pulled out badges, which they wear around their necks under their shirts.  At that time, the officers did not have their guns drawn.

Officer Diaz testified that as he and Officer Carrasco approached, Appellant reversed the truck and stepped hard on the gas.  Officer Diaz pulled out his gun when the vehicle started peeling out backwards onto the street.  The officers chased the vehicle on foot, running into the street after it.  Appellant slammed on his brakes to avoid hitting other vehicles in his rear, whose drivers were honking their horns.  Appellant had stopped reversing and Officer Diaz was standing to the left front side of Appellant=s vehicle approximately twenty feet away.  Officer Diaz stated that he and Officer Carrasco continued to identify themselves, both in English and Spanish, and asked Appellant to show his hands.  Appellant did not comply.  Officer Diaz saw Appellant move something inside the truck.  Appellant then put the vehicle into gear and looked right at Officer Diaz while driving straight towards him.  Officer Diaz had to move to the side to avoid being hit by Appellant=s truck.  Officer Diaz testified that the truck missed him by a foot and that he would have been hit had he not moved.  At that moment, Officer Diaz was in fear of bodily injury, was just trying to get out of the way to stay alive, and did not want to be hurt.  Officer Diaz was also fearful because he thought he might be pinned between vehicles or otherwise seriously injured because there were other cars parked along the side of the street.

With their guns drawn, the officers asked Appellant to turn off the vehicle and step outside.  Appellant, however, just continued forward and drove away from the officers.  The officers got in their unmarked vehicle to look for Appellant, but could not locate him.  They radioed dispatchers to alert other police units and advised them of what had happened with Appellant.

Officer Fernando Carrasco offered similar testimony about the incident between Appellant and the officers.  According to Officer Carrasco, he and Officer Diaz set up surveillance of the business in a nearby parking lot and were stationary for about forty-five minutes to an hour without seeing Appellant=s vehicle.  The officers decided to go and talk to the business owner to explain the situation.  At the business, the officers knocked on the door, walked in, and they identified themselves as police officers by showing their badges.  They talked to the business owner for about twenty to twenty-five minutes before seeing Appellant=s vehicle.  They saw Appellant drive up to the business and stop in front of the partially opened gate.  The business owner approached the truck while the officers remained inside the office.  Officer Carrasco observed Appellant and the business owner conversing and told Officer Diaz his suspicion that the owner was going to tell Appellant that the officers were there and Appellant would flee.

The officers decided to approach Appellant while he was stopped at the gate.  As they started coming up to the truck, they pulled out their police badges.  Officer Carrasco approached from the right corner of the truck and Officer Diaz approached from the left corner of truck.  Officer Carrasco testified that they were screaming at Appellant, AEl Paso Police, El Paso police officers, police officers.@  Officer Carrasco also told Appellant the same in Spanish.  Officer Carrasco had his weapon drawn.  Appellant engaged his vehicle, rapidly reversed into the street, and was revving the engine.  Appellant was looking straight at the officers who were in front of his vehicle.  Appellant stopped in the street because another vehicle was behind him.  Officer Carrasco had his weapon drawn, his badge was out, and he was telling Appellant to get out of the vehicle.  At all times, Officer Carrasco maintained eye contact with Appellant.  Officer Carrasco saw that Officer Diaz was standing towards the left fender area of Appellant=s vehicle and recalled telling Officer Diaz to get out of the way.  Appellant shifted into gear and Officer Carrasco saw Officer Diaz jump to the side.  As Appellant drove off, Officer Carrasco gave the dispatcher a description of the vehicle and the direction in which Appellant had fled.  Twenty to thirty minutes later, another Impact Unit took Appellant into custody.  When Officer Carrasco arrived Appellant had already been arrested and was belligerent towards the officers, screaming and kicking the police car door and windows.

On cross-examination, Officer Carrasco conceded that from the dispatched information on Appellant nothing indicated that Appellant had a weapon.  Officer Carrasco testified that they ran towards the truck, and as he was moving towards the truck, he pulled out his badge.  When Officer Carrasco got to the truck, he then pulled out his gun.  Officer Carrasco also testified that the windows of Appellant=s vehicle were down.  Office Carrasco conceded that Appellant did not try to run him or Officer Diaz over at that point.  After Appellant reversed and stopped in the street, Officer Carrasco did not know whether Officer Diaz was in front of Appellant=s vehicle or to the side, but did know that he was in that general area, very close to the vehicle, and on the street.  Officer Carrasco agreed that once Appellant drove pass the officers, Appellant did not come back a second time and try to run him over.  Officer Carrasco also conceded that Appellant did not make a threat to him at the police station during processing.

At trial, Jose Mena, the owner of American Refrigeration, was called as a defense witness.  Mr. Mena testified that police officers who were not wearing uniforms came to his business before 11 a.m. on April 20, 2000 and were looking for Appellant, one of his employees.  Mr. Mena opened the gate when Appellant arrived.  Mr. Mena denied talking to Appellant before opening the gate.  As Mr. Mena was walking back to the office, one of the officers came running while the other was walking slow.  This was all that Mr. Mena saw because what happened next was too fast and then it was over.  Mr. Mena did not see Appellant reverse into the street and then drive forward.

Jorge Gomez Carrillo, an employee of American Refrigeration, also testified on behalf of Appellant=s defense.  Mr. Gomez was waiting in a van on the other side of the gate when he saw Appellant arrive at the business.  Mr. Gomez stated that he saw Appellant put the truck in reverse and leave.  When he turned to look, he saw one of the officers on the sidewalk and the other one was behind the van.  Mr. Gomez did not see any guns drawn and did not see the officers in front of Appellant=s vehicle.  On cross-examination, Mr. Gomez admitted that he was not paying attention to what the police officers and Appellant were doing.

The jury found Appellant guilty of aggravated assault on a public servant, enhanced by a prior felony conviction and assessed punishment at fifteen years= imprisonment.  Appellant filed a motion for new trial, which was overruled by operation of law.  Appellant now timely appeals his conviction.

DISCUSSION

Sufficiency of the Evidence

In Issues One and Two, Appellant argues that the evidence was legally and factually insufficient to sustain his conviction for aggravated assault on a public servant.  Specifically, Appellant asserts that the State failed to establish that Appellant intentionally or knowingly threatened Officer Diaz with imminent bodily injury as alleged in the indictment.^[1]

Standards of Review

In determining the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992).  Rather, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d. at 421-22; Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d).  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  See Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Menchaca, 901 S.W.2d at 651. 

In reviewing the factual sufficiency of the evidence, we consider all of the evidence, but do not view it in the light most favorable to the verdict.  Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996).  A reviewing court in conducting a factual sufficiency review asks whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson, 23 S.W.3d at 11.  We review the evidence weighed by the trier of fact that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact.  Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).  Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial.  See Johnson, 23 S.W.3d at 7.

Aggravated Assault on a Public Servant

A person commits the offense of assault of a public servant if he intentionally or knowingly threatens another with imminent bodily injury.  See Tex.Pen.Code Ann. 22.01(a)(2) (Vernon 2003).  Aggravated assault occurs if, in the course of committing an assault under Section 22.01, the person uses or exhibits a deadly weapon.  See Tex.Pen.Code Ann. ' 22.02(a)(2).  An offense under Section 22.02 is a first-degree felony if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.  See Tex.Pen.Code Ann. ' 22.02(b)(2).  A Apublic servant@ is a Aperson elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government.@  Tex.Pen.Code Ann. ' 1.07(a)(41)(A)(Vernon 2003).  The actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person=s employment as a public servant.  Tex.Pen.Code Ann. ' 22.02(c).  AA person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@  Tex.Pen.Code Ann. ' 6.03(a).  AA person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.  A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@  Tex.Pen.Code Ann. ' 6.03(b).

The indictment in this cause alleged that:

[O]n or about the 20th day of April, 2000 . . . in the County of El Paso and State of Texas, RICARDO MARTINEZ, JR., hereinafter referred to as Defendant, did then and there intentionally and knowingly threaten RICARDO DIAZ with imminent bodily injury and did then and there use and exhibit a deadly weapon, to wit:  a motor vehicle, during the commission of said assault, and that said RICARDO DIAZ was then and there a public servant, to wit:  a City of El Paso Police Officer in the lawful discharge of an official duty, and that said Defendant knew RICARDO DIAZ was a public servant.

It was further alleged that Appellant Aused and exhibited a deadly weapon, to wit:  a  motor vehicle, during the commission of and immediate flight from said offense.@

Appellant asserts that the State failed to prove the requisite culpable mental state for the charged offense.  Appellant also contends that the record does not sufficiently establish that Appellant directed his vehicle towards the police officers, that he maneuvered the vehicle in such a manner as to assault the officers, or that he even knew that the plain-clothed individuals approaching him with weapons were police officers.

The evidence adduced at trial shows that Officer Diaz and Officer Carrasco were dispatched to American Refrigeration Company, Appellant=s place of employment, to set up surveillance in order to apprehend Appellant, who had fled from Officer Lamb that morning.  When Appellant arrived at the location, he parked his vehicle in the driveway at the front gate of the business.  The officers observed the business owner talking to Appellant at the gate and Officer Carrasco suspected that Appellant was going to flee again.  As the officers approached the gate area they identified themselves as police officers and displayed their badges.  According to Officer Diaz, the officers did not have their weapons drawn at that time.  As they approached, Appellant reversed the truck and pressed hard on the gas.  Officer Diaz then pulled out his gun and they began chasing the vehicle, running into the street.  When Appellant stopped reversing, Officer Diaz was standing in the street on the left front side of Appellant=s vehicle approximately twenty feet away.  The officers repeatedly identified themselves as police officers in both English and Spanish.  Appellant did not comply with their instructions to show his hands and get out of the vehicle.  Instead, Appellant looked right at Officer Diaz and drove straight towards him.  Officer Diaz testified that Appellant=s vehicle missed him by a foot and that if he had not moved out of the way, Appellant would have hit him.  Officer Diaz recalled that at that moment, he feared bodily injury.

Threats may be communicated by action, conduct, or words.  McGowan v. State, 664 S.W.2d 355, 357 (Tex.Crim.App. 1984).  Moreover, the jury may infer intent or knowledge from the accused=s acts, words, and conduct at the time of the offense.  See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982).  Viewing the evidence in a light most favorable to the verdict, we conclude that a rational jury could reasonably infer from Appellant=s conduct that he intentionally and knowingly threatened Officer Diaz by driving straight towards the officer while the officer was standing approximately twenty feet in front of Appellant=s vehicle and ordering Appellant to desist.  Prior to Appellant=s escape, the police officers displayed their badges and repeatedly identified themselves as police officers.  Officer Carrasco also observed that the windows of Appellant=s vehicle were down during the incident.  Even if Appellant did not intentionally threaten Officer Diaz by use of his motor vehicle, the jury could infer that Appellant was aware his conduct was reasonably certain to cause a threat of imminent bodily injury.  Accordingly, we find that the evidence was legally sufficient to sustain the conviction.  Issue One is overruled.

In Issue Two, Appellant challenges the factual sufficiency of the evidence, arguing that the State failed to establish that Appellant=s conduct was an intentional assault.  Rather, Appellant claims the evidence showed that he was fleeing from individuals attired in plain clothes who were waving and pointing weapons at his head.  Appellant asserts that the evidence demonstrates that he was simply attempting to get away and to remove himself from a dangerous situation.

At trial, both officers testified that they were assigned to a plain-clothes surveillance investigations unit for the area.  Although they were not wearing uniforms, the officers in approaching Appellant=s employer and Appellant identified themselves as police officers and displayed their badges.  Defense witness Jose Mena, Appellant=s employer, observed the officers running towards the front gate, but did not see what happened next because it all happened so fast.  Mr. Mena did not see Appellant reverse into the street and did not see him drive forward.  Oscar Gomez Carrillo, a fellow employee, observed Appellant reverse the truck and leave.  Mr. Gomez did not see officers in front of Appellant=s vehicle and did not see any guns drawn.  Mr. Gomez, however, conceded that he was not paying attention to Appellant and the officers.  The jury is the sole judge of witness credibility and is free to believe or disbelieve any witness.  Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998); 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).  While Appellant may have intended to flee from the scene, there is no evidence in the record to contradict the State=s proof that in so doing, he drove his vehicle directly at Officer Diaz, causing the officer to fear imminent bodily injury.  The proof of guilt in Appellant=s case is not so obviously weak as to undermine confidence in the jury=s determination nor is it greatly outweighed by contrary proof as to be clearly wrong and manifestly unjust.  See Johnson, 23 S.W.3d at 7.  We conclude that the evidence was factually sufficient to sustain Appellant=s conviction.  Issue Two is overruled.

Motion to Quash Subpoena

In his third issue, Appellant contends the trial court erred in quashing his subpoena in which he sought to call Jan Sumrall, a city council member, as a witness.  Appellant argues that in granting Ms. Sumrall=s motion to quash the subpoena, the trial court deprived him of compulsory process for obtaining a witness and violated his fundamental right to a fair trial.

Criminal defendants have a right to compulsory process for obtaining witnesses.  U.S. Const. amend.VI ; Tex.Const. art. I, ' 10.  It is Ain plain terms the right to present a defense, the right to present the defendant=s version of the facts as well as the prosecution=s to the jury so it may decide where the truth lies.@  Coleman v. State, 966 S.W.2d 525, 527 (Tex.Crim.App. 1998)(Opin. on reh=g), quoting, Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).  This right, however, does not guarantee the right to secure the attendance and testimony of any and all witnesses; rather it guarantees only compulsory process for obtaining witnesses whose testimony would be both material and favorable to the defense.  Id. at 527-28.  To exercise this right, the defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness= testimony would be both material and favorable to the defense.  Id.  Counsel=s mere belief that a witness would support the defense=s case is insufficient to establish materiality.  See Castillo v. State, 901 S.W.2d 550, 553 (Tex.App.--El Paso 1995, pet. ref=d).  We review the trial court=s decision to quash a subpoena for an abuse of discretion.  See Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex.Crim.App. 1987), citing, United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974) and Ross v. Estelle, 694 F.2d 1008, 1010 (5th Cir. 1983); Rodriguez v. State, 90 S.W.3d 340, 358 (Tex.App.‑-El Paso 2001, pet. ref=d); Muennink v. State, 933 S.W.2d 677, 684 (Tex.App.--San Antonio 1996, pet. ref=d).

Here, Appellant subpoenaed city council member Jan Sumrall to testify at his trial.  Ms. Sumrall=s lawyer filed a motion to quash the subpoena, on grounds that Ms. Sumrall had no knowledge of the facts of Appellant=s case, no knowledge of undercover police tactics, or any other relevant or admissible testimony.  The trial court held a hearing on the motion to quash at which Ms. Sumrall was questioned about her knowledge of undercover police operations and Appellant=s case.

At the hearing, Ms. Sumrall testified that she did not know Appellant and was not aware of any of the circumstances that led to his arrest.  Ms. Sumrall had no opinion as to when it is appropriate to make an arrest undercover and when it is not.  On cross-examination, Ms. Sumrall stated that the city council had held some hearings at their meetings concerning the use of unmarked police vehicles.  Ms. Sumrall recalled that the hearings were in response to people=s complaints that there were police officers pulling them over and they did not know who was pulling them over.  The complaints were specifically about unmarked police cars issuing citations on Interstate-10.  In clarifying the nature of the complaints, Ms. Sumrall stated that two elderly women complained that when driving late at night on I-10 they had seen a car coming behind them very fast with flashing lights and were not sure if it was, in fact, a police car at that point.  The turning red lights did not indicate to them that it was a police car because there could be someone out there masquerading as a police officer.  The council members concluded that this really was not a problem.

Appellant also testified at the hearing on the motion to quash.  Appellant stated that he believed Ms. Sumrall could be a material witness in support of his defense because she could provide some assistance to the jury in issues involving whether or not the citizenry knows whether it is a police officer or not.  Ms. Sumrall=s counsel argued to the trial court that there was no evidence to show Ms. Sumrall=s testimony would be relevant or material with respect to Appellant=s case.  In response, Appellant=s counsel argued that it would assist the trier of fact and help the defense.  Appellant=s counsel also argued that if the trial court granted the motion, it would violate Appellant=s Sixth Amendment right to compulsory process.  The trial court granted the motion to quash the subpoena over Appellant=s objection.

After reviewing the record, we conclude Appellant made no plausible showing that Ms. Sumrall=s testimony would be both material and favorable to his defense.  Ms. Sumrall=s testimony indicates that she had no knowledge of the facts and circumstances which led to Appellant=s arrest and had no opinion concerning arrests by undercover police officers.  Ms. Sumrall did provide information about the city council=s hearings held in response to complaints about late night traffic stops on the interstate highway by police officers in unmarked vehicles.  Ms. Sumrall also remarked that the council members did not believe this really was a problem.  At trial, Appellant presented no evidence to support his purported defensive theory that either he did not believe Officer Diaz and Officer Carrasco were really police officers or that they were individuals masquerading as police officers.  Moreover, the complaints heard at the city council meetings were quite different from the circumstances and facts in Appellant=s case.  Appellant=s argument constitutes a mere speculation that Ms. Sumrall=s testimony would support his defense and as such, is insufficient to establish materiality.  See Castillo, 901 S.W.2d at 553.  Appellant failed to meet the burden for compulsory process, therefore the trial court did not err in quashing the subpoena.  We overrule Issue Three. 

Lesser Included Offense

In Issue Four, Appellant asserts the trial court erred in denying his request for a jury instruction on the lesser included offense of evading arrest and detention.  At the charge conference and on appeal, Appellant argues the evidence shows that prior to the incident with Officers Diaz and Carrasco, he had evaded arrest from Officer Lamb and during the incident he was again attempting to evade arrest when he reversed his vehicle.  Appellant contends the trial was replete with facts and evidence where the same or less proof necessary for aggravated assault of a peace officers established evading arrest or detention.

We apply a traditional two-prong test to determine whether Appellant was entitled to a charge on a lesser-included offense.  See Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)(en banc), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981)(plurality opinion).  First, we determine whether the offense is a Alesser included offense@ as defined in Article 37.09 of the Code of Criminal Procedure, which in most cases requires deciding whether the lesser-included offense must be included within the proof necessary to establish the offense charged.  See Tex.Code Crim.Proc.Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8; Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex.App.--El Paso 1998, pet. ref=d).  Second, the record must show some evidence that would permit a rational jury to find that if the defendant is guilty of an offense, he was guilty only of the lesser offense.  Feldman v. State, 71 S.W.3d 738, 750-51 (Tex.Crim.App. 2002); Moore, 969 S.W.2d at 8; Rousseau, 855 S.W.2d at 672.

Whether one offense is a lesser-included offense of another is determined on a

case-by-case basis.  Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995).  Under Article 37.09 of the Code of Criminal Procedure, an offense is a lesser-included offense if:

(1)        it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2)        it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3)        it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4)        it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex.Code Crim.Proc.Ann. art. 37.09.  In this case, only subparagraph (1) is applicable in determining whether the asserted offense of evading arrest is a lesser-included offense of the charged offense of aggravated assault on a public servant.  As set forth in Jacob, 892 S.W.2d at 907-08, we employ a three-step analysis in making this determination.  See Noyola v. State, 25 S.W.3d 18, 20-1 (Tex.App.--El Paso 1999, no pet.).  First, we examine the elements of the charged offense as they appear in the indictment, with special attention to the facts required to prove the charged offense.  Jacob, 892 S.W.2d at 907; Noyola, 25 S.W.3d at 21.  AFacts required@ means the evidence legally required to prove the elements of the charged offense.  Jacob, 892 S.W.2d at 908.  Second, we examine the statutory elements of the offense sought as a lesser-included offense.  Jacob, 892 S.W.2d at 907; Noyola, 25 S.W.3d at 21.  Lastly, we must examine the proof presented at trial to show the elements of the charged offense.  Jacob, 892 S.W.2d at 907-08; Noyola, 25 S.W.3d at 21.  AIf the facts required to prove the elements of the lesser-included offense are not functionally the same or less than the charged offense, it is not a lesser-included offense even if the facts presented at trial could prove the lesser-included offense.@  Noyola, 25 S.W.3d at 21 (analyzing the Court=s interpretation of Article 37.09(1) in Jacob v. State).

Here, Appellant was charged with the offense of aggravated assault on a public servant.  See Tex.Pen.Code Ann. '' 22.01(a)(2), 22.02(a)(2), 22.02(b)(2).  The  indictment charged that Appellant intentionally and knowingly threatened Officer Diaz, a public servant lawfully discharging an official duty, with imminent bodily injury and used and exhibited a deadly weapon, a motor vehicle, during the commission of the offense.  The statutory elements of the asserted lesser-included offense of evading arrest or detention would require the State to prove that Appellant intentionally fled from a person he knew to be a peace officer attempting to lawfully arrest or detain him.  See Tex.Pen.Code Ann. ' 38.04(a)(Vernon 2003).  The charged offense does not require proof that Appellant intentionally fled from a person he knew to be a peace office  nor does it require proof that the assault occurred while the peace officer was attempting to lawfully arrest or detain Appellant.  Rather, the charged offense required proof of a threat of imminent bodily injury toward Officer Diaz and the use or exhibition of a deadly weapon during the commission of that assault by threat.  A lesser-included offense must be established by less or the same proof, not proof of an additional matter not required by the indictment for the charged offense.  See Tex.Code Crim.Proc.Ann. art. 37.09(1).  The elements of Appellant=s asserted lesser-included offense are not functionally the same or less than those required to prove the charged offense.  See Jacob, 892 S.W.2d at 908.  Therefore, the trial court did not commit error in refusing to charge the jury on evading arrest or detention.  We overrule Issue Four.

Self-Defense Instruction

In Issue Five, Appellant contends the trial court erred in refusing his request for a

self-defense instruction.  During the charge conference, Appellant=s counsel objected to the lack of a self-defense instruction in the jury charge under Section 9.31(c) of the Texas Penal Code.  On appeal, Appellant argues that he was entitled to an instruction on self-defense because he reasonably believed that his use of force was necessary to protect against an apparent danger, which in this case was two individuals confronting him with semi-automatic weapons.^[2]  Further, Appellant argues that even if the jury concluded that he should have known the individuals were police officers, the officers= use of greater force than necessary and whether his belief, fears, and action were reasonable were fact issues for the jury.

A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.  See Tex.Pen.Code Ann.' 9.31(a)(Vernon 2003).  The use of force 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 Tex.Pen.Code Ann. ' 9.31(b)(2).  However, Section 9.31(c) provides a limited exception for justified use of force against a peace officer:  (1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer=s use or attempted use of greater force than necessary.  See Tex.Pen.Code Ann. ' 9.31(c).

The defendant has the initial burden of producing some evidence to justify submission of a self-defense instruction.  Tidmore v. State, 976 S.W.2d 724, 729 (Tex.App.--Tyler 1998, pet. ref=d); Shelvin v. State, 884 S.W.2d 874, 878 (Tex.App.--Austin 1994, pet. ref=d).  The State then has the burden of persuasion to disprove evidence of the self-defense claim by proving its case beyond a reasonable doubt.  Saxton v. State, 804 S.W.2d 910, 913‑14 (Tex.Crim.App. 1991).  In so doing, the State does not have the burden of producing evidence to affirmatively refute the self‑ defense claim.  Id. at 913.  A defendant need not testify to raise the issue of self‑defense.  See Smith v. State, 676 S.W.2d 584, 586‑87 (Tex.Crim.App. 1984).  Self‑defense may be raised by the evidence when witnesses testify to the defendant=s words and acts at the time of the offense.  See id.  If the evidence raises the issue of self-defense, the trial court must submit a jury instruction on the defensive theory, regardless of whether such evidence is strong, feeble, impeached, or contradicted, and even if in the trial court=s opinion the testimony is not entitled to belief.  Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App. 1997).

In the present case, Officers Diaz and Carrasco testified that as they approached Appellant at the front gate they identified themselves as police officers and displayed their badges.  Officer Diaz testified that they did not have their guns drawn at that time, but that he drew his weapon when Appellant=s vehicle started peeling out backwards onto the street.  Officer Carrasco=s testimony differs in that he recalled having his weapon drawn prior to Appellant reversing into the street, but after they had identified themselves as police officers and displayed their badges.  Defense witness Jose Mena testified that he did not see what happened between Appellant and the officers.  Jorge Gomez Carrillo testified that he saw Appellant reverse and leave, but did not see officers in front of Appellant=s vehicle or any guns drawn.  None of the evidence presented at trial was contrary to the officers= testimony that they repeatedly identified themselves as police officers to Appellant.  Further, there is no evidence in the record to suggest the officers used greater force than necessary in attempting to make an arrest.  See Walker v. State, 994 S.W.2d 199, 202 (Tex.App.--Houston [1st Dist.] 1999, pet. ref=d)(requiring some evidence in the record to raise the issue of whether the police used or attempted to use excessive force before the justification of self-defense is applicable).  Because the evidence failed to raise the issue of self-defense, the trial court did not err in refusing Appellant=s request for a

self-defense instruction in the jury charge.  Issue Five is overruled. 

Ineffective Assistance of Counsel

In his sixth issue, Appellant asserts that his trial counsel rendered ineffective assistance by failing to subpoena District Attorney Jaime Esparza and/or assistant district attorneys who could have lent support to his defensive theory-- his genuine belief that he was fleeing from an individual known to retaliate against his enemies.  In his brief, Appellant states he cooperated in the investigation and prosecution of Tony DeSantio for operating a prostitution operation out of strip clubs in El Paso, Texas.  Appellant also asserts that Tony DeSantio was also prosecuted for retaliation against District Attorney Jaime Esparza.  In effect, Appellant argues on appeal that his trial counsel failed to subpoena and question the district attorney and staff about these allegations.

Claims of ineffective assistance of counsel are reviewed under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986).  To prevail, the defendant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064.  The defendant must also show that counsel=s deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).  This requires the defendant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy.  Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.  Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption.  Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771.  In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@  Thompson, 9 S.W.3d at 814.  When faced with a silent record as to counsel=s strategy, this Court will not speculate as the reasons for counsel=s actions.  See Jackson, 877 S.W.2d at 771.  It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence.  Thompson, 9 S.W.3d at 813.

In this case, Appellant filed a general motion for new trial, but it did not allege ineffectiveness of his counsel and no hearing was held on the motion.  Appellant=s claims as to what the district attorney=s staff would have testified to is not supported by the record.  Further, the record is silent as to trial counsel=s reasons for his alleged failure to subpoena the district attorney and assistant district attorneys.  Therefore, Appellant has failed to overcome the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance.  See Thompson, 9 S.W.3d at 814.  Issue Six is overruled. 

We affirm the trial court=s judgment.

July 24, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

---

^[1] We note that on appeal, Appellant does not challenge the sufficiency of the evidence with respect to the deadly weapon finding or the jury=s determination that Officer Diaz, as a public servant, was lawfully discharging an official duty.

^[2] At the charge conference, Appellant=s counsel argued that Appellant=s form of

self-defense was the act of getting away from the officers and when he could not abandon the encounter, he showed some resistance to a great threat of force, the officers= pistols.  Under Appellant=s defense theory, his use of force was the acceleration of his vehicle, but he denied using the vehicle as a weapon.