McClatchy v. State

758 S.W.2d 328, 1988 Tex. App. LEXIS 1977, 1988 WL 82667
Court of Appeals of Texas·Decided August 11, 1988·No. Nos. B14-87-659-CR, B14-87-599-CR·Published·Cited by 6 cases

Opinion

OPINION

DRAUGHN, Justice.

Appellant waived his right to a jury trial, and was convicted by the court on two counts of aggravated assault of a police officer. The court assessed punishment at five years probation, and a two-hundred dollar fine. On appeal, he asserts the evidence was insufficient to support the courts determination that the complainants were police officers in the lawful discharge of their official duty. We affirm.

On the evening of November 1, 1986, Officer J.D. Dahlstrand of the Houston Police Department responded to call from the residence at 4282 Childress, in Houston. Upon arriving at the residence, Dahlstrand spoke with Brook McDonald. McDonald told him that earlier in the evening she had been assaulted by appellant, her sister’s boyfriend. She had returned to the house from visiting her parents at approximately 6:45 p.m., and was surprised to discover appellant there. McDonald explained to Dahlstrand that appellant had been arrested for disorderly conduct and assault at the Rothko Chapel earlier in the day, and she had thought appellant was still in jail. McDonald told Dahlstrand that appellant was under the influence of drugs, and had been hostile and abusive. She had argued with appellant about his earlier arrest. As appellant advanced toward her, she became frightened and threatened to call police if he touched her. Appellant had backed her against the kitchen cupboard and shoved her. She told Dahlstrand she was frightened because appellant was red-faced and out of control. She said she told appellant several times to leave her alone or she would call the police. She lunged toward the phone between the kitchen and living room. She recounted to Dahlstrand that appellant had told her she was not going to call anyone, and they had struggled over the phone. McDonald told the officer appellant had tied her hands with the phone cord. Dahlstrand could see red marks and bruises on her wrists. She described how she had tried to escape through the front door, because she was very frightened that appellant would seriously harm her. Ap[329] pellant had blocked her path, but she succeeded in running out the back door and driving to her parents’ home.

McDonald told Dahlstrand she then had several telephone conversations with her sister, and told her sister if appellant did not leave the house she would call the police. When appellant refused to leave, McDonald telephoned the police for assistance. The dispatcher told her officers would arrive at her home momentarily, so she returned to the house.

When McDonald and Officer Dahlstrand arrived at the house, appellant was not there. After hearing McDonald’s story, Dahlstrand called for backup.

Officer M.R. Prendergast was Dahlst-rand’s usual partner, and worked an off-duty job as a security guard at Rothko Chapel. Earlier, when the officers arrived at roll call for their three-to eleven shift for the Houston Police Department, Prender-gast had told Dahlstrand he had had problems with a fellow resisting arrest at the chapel that morning. Dahlstrand occasionally filled-in for Prendergast and knew no one else had been arrested at the chapel during the three-years they had worked there. When McDonald mentioned appellant had been arrested at Rothko Chapel, Dahlstrand specifically requested Officer Prendergast answer his call for backup. Shortly thereafter, Prendergast and a probationary officer, R.D. Rodriguez, arrived at McDonald’s residence. Prendergast recognized appellant’s name and description as the person he had arrested at Rothko Chapel that morning.

Particularly in light of appellant’s violent behavior at the chapel earlier in the day, the officers believed McDonald’s fear of appellant was genuine, and that her concern he would return and harm her was justified. After some discussion, McDonald told the officers appellant worked at Allen Park Inn, and perhaps they could find him there. Since appellant did not appear to be in the area, the officers left McDonald’s residence. The officers were immediately dispatched to two intervening calls, but sometime after 9:00 p.m. proceeded to the Allen Park Inn to look for appellant.

After locating appellant’s car in the parking lot and verifying he had checked into a room, the officers contacted the Intake Division of the Harris County District Attorney’s Office. They were told the D.A.’s office would accept assault charges on appellant.

While Rodriguez watched the room’s rear window, officers Dahlstrand and Pren-dergast knocked at appellant’s door. The officers were wearing their uniforms and their badges were displayed on their chests. When appellant opened the door, they identified themselves and told him he was under arrest for assault. Appellant shoved the officers and tried to close the door. Appellant began fighting the officers and trying to grab Dahlstrand’s gun. The officers were unable to subdue appellant in the ensuing scuffle. Prendergast yelled to Rodriguez to call for backup, and to come to their aid. Eventually, as the backup units arrived, the three officers were able to handcuff appellant.

In his sole point of error, appellant contends that, since the officers did not obtain a warrant, the arrest was unlawful. Therefore, appellant argues, the officers were not “lawfully discharging an official duty”, an essential requirement of Tex.Penal Code Ann. § 22.02 (Vernon Supp.1988).

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McClatchy v. State, 758 S.W.2d 328, 1988 Tex. App. LEXIS 1977, 1988 WL 82667 (Tex. Ct. App. 1988).

758 S.W.2d 328 (McClatchy v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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