In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00185-CR No. 07-22-00186-CR
MICHAEL PAUL CONTRERAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 079837-E-CR & 079836-E-CR, Honorable Douglas R. Woodburn, Presiding
June 5, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Michael Paul Contreras appeals his convictions for assaulting a public
servant (trial court cause number 079836-E-CR) and possessing a deadly weapon in a
penal institution (trial court cause number 079837-E-CR). The jury assessed punishment
at seventy-five years’ incarceration for each offense, to run concurrently. Additionally, the
trial court entered a deadly weapon finding in cause number 079837-E-CR (possessing
a deadly weapon in a penal institution). On appeal, appellant challenges the sufficiency of the evidence to support the assault conviction and, by three issues, the propriety of the
deadly weapon finding. We modify the judgment in cause number 079837-E-CR and
affirm both judgments.
Background
Two incidents are at issue here. The first involved appellant, an imprisoned felon,
grabbing a prison guard, Ramos, by the collar of his uniform and pulling Ramos’s hand
through the food slot in the cell’s door, at which time appellant bit Ramos’s hand and
pinkie finger. Ramos then felt appellant bite his hand “very hard,” which bite lasted about
three seconds. Upon Ramos’s successfully removing his hand from the slot and after
exclaiming “He bit me!” appellant uttered, “I’m going to kill you, bitch. Watch.”
Ramos wore latex gloves at the time. Appellant’s bite tore one glove and left
Ramos with a small laceration on his pinkie finger and teeth impressions on the side of
his hand. The area bitten necessitated minor medical care and remained painful for about
a week. Ramos felt most of the pain “in [his] bone.”
The second incident arose when appellant sought medical attention the morning
after biting Ramos. As a corrections officer (Kauffman) arrived to deliver a medical
request form, he saw appellant inside his cell waving his hand around. In addition to
waiving his hand, appellant also threatened to cut Kauffman. Kauffman discovered that
appellant held an object in his hand. The object was a sharpened piece of a plastic
eyeglass lens, about two inches long and having a point. Upon the insistence of several
officers, appellant eventually relinquished the object, which Kauffman described as a
“shank” or “shiv.” Such items generally were used to slice or stab. Testifying corrections
2 officers confirmed that the sharpened lens held by appellant could cause severe injuries
or death.
A latter search of appellant’s cell yielded other objects. One was another
sharpened eyeglass lens. A sharpened plastic pen was the other.
The foregoing incidents resulted in appellant’s convictions for the crimes
mentioned in our opening paragraph. These appeals ensued.
Issue One: Sufficiency of the Evidence—Assault on Public Servant
Through his first issue, appellant contends that the evidence was legally
insufficient to support the assault conviction. Allegedly, the evidence failed to establish
that appellant bit Ramos. We overrule the issue.
One commits the offense of assault on a public servant if he intentionally,
knowingly, or recklessly causes bodily injury to a person the actor knows to be a public
servant while the public servant is lawfully discharging an official duty. See 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(a)(8). It includes “even relatively minor
physical contacts so long as they constitute more than mere offensive touching.” See
Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (en banc).
Appellant does not challenge the evidence establishing that he knew Ramos to be
a public servant or that Ramos was lawfully discharging an official duty when the
encounter occurred. Instead, he maintains that no more than a mere modicum of
evidence indicates Ramos bit him. Yet, Ramos so testified. The jury was free to believe
the officer and discredit appellant’s contrary testimony. See Metcalf v. State, 597 S.W.3d
847, 855 (Tex. Crim. App. 2020) (stating that the jury is free to weigh the evidence and
3 determine whom to believe). So too was it free to believe the guard’s testimony about
experiencing pain for about a week after being bitten by appellant. Thus, some evidence
appears of record upon which a rational factfinder could conclude, beyond reasonable
doubt, that appellant assaulted a public servant. See id. at 855–56 (describing the
standard of review when assessing the sufficiency of the evidence to support a
conviction).
Issue Four—Deadly Weapon Finding
The remaining issues deal with the deadly weapon finding entered in cause
079837-E-CR, i.e., the conviction for possessing a deadly weapon in a penal institution.
The fourth issue is dispositive, and we address it.
Through Issue Four, appellant contends that the jury, as opposed to the court, was
obligated to determine whether or not he used or exhibited the deadly weapon in some
way when possessing it. Because it did not, the trial court was precluded from entering
an affirmative finding on the matter. That affirmative finding nonetheless appears in the
judgment under the category “Finding on Deadly Weapon.” There, we see the statement
“Yes, not a firearm.” In entering it, the trial court allegedly erred. We sustain the issue.
When, as here, the jury determines both guilt and punishment, it is the proper
factfinder to determine whether a defendant used a deadly weapon. Walker v. State, No.
05-13-01082-CR, 2014 Tex. App. LEXIS 11869, at *5 (Tex. App.—Dallas Oct. 29, 2014,
no pet.) (mem. op., not designated for publication); see Fann v. State, 702 S.W.2d 602,
604 (Tex. Crim. App. 1986) (en banc) (acknowledging that the trial court may make the
finding when it is the trier of fact). How the jury makes its affirmative findings underwent
debate years ago. That led to our Court of Criminal Appeals specifying the ways it could
4 be done. Three were initially mentioned in Lafleur v. State, 106 S.W.3d 91 (Tex. Crim.
App. 2003) (en banc). They were as follows: 1) through the trier of fact’s verdict on the
indictment when the indictment itself alleges the use of a deadly weapon; 2) when “the
instrument used is a per se deadly weapon, such as a pistol or a firearm”; and 3) when
the jury makes an affirmative finding through a deadly weapon special issue included in
the jury charge. Id. at 95–96. These modes were intended to pretermit consideration of
the facts of the case as a means of implying an affirmative finding from them. Id. To the
foregoing, another avenue was added. It entailed consideration of the application
paragraph of the indictment. If that paragraph “explicitly and expressly requires the jury
to find that the defendant used a deadly weapon in the commission of the offense” and
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00185-CR No. 07-22-00186-CR
MICHAEL PAUL CONTRERAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 079837-E-CR & 079836-E-CR, Honorable Douglas R. Woodburn, Presiding
June 5, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Michael Paul Contreras appeals his convictions for assaulting a public
servant (trial court cause number 079836-E-CR) and possessing a deadly weapon in a
penal institution (trial court cause number 079837-E-CR). The jury assessed punishment
at seventy-five years’ incarceration for each offense, to run concurrently. Additionally, the
trial court entered a deadly weapon finding in cause number 079837-E-CR (possessing
a deadly weapon in a penal institution). On appeal, appellant challenges the sufficiency of the evidence to support the assault conviction and, by three issues, the propriety of the
deadly weapon finding. We modify the judgment in cause number 079837-E-CR and
affirm both judgments.
Background
Two incidents are at issue here. The first involved appellant, an imprisoned felon,
grabbing a prison guard, Ramos, by the collar of his uniform and pulling Ramos’s hand
through the food slot in the cell’s door, at which time appellant bit Ramos’s hand and
pinkie finger. Ramos then felt appellant bite his hand “very hard,” which bite lasted about
three seconds. Upon Ramos’s successfully removing his hand from the slot and after
exclaiming “He bit me!” appellant uttered, “I’m going to kill you, bitch. Watch.”
Ramos wore latex gloves at the time. Appellant’s bite tore one glove and left
Ramos with a small laceration on his pinkie finger and teeth impressions on the side of
his hand. The area bitten necessitated minor medical care and remained painful for about
a week. Ramos felt most of the pain “in [his] bone.”
The second incident arose when appellant sought medical attention the morning
after biting Ramos. As a corrections officer (Kauffman) arrived to deliver a medical
request form, he saw appellant inside his cell waving his hand around. In addition to
waiving his hand, appellant also threatened to cut Kauffman. Kauffman discovered that
appellant held an object in his hand. The object was a sharpened piece of a plastic
eyeglass lens, about two inches long and having a point. Upon the insistence of several
officers, appellant eventually relinquished the object, which Kauffman described as a
“shank” or “shiv.” Such items generally were used to slice or stab. Testifying corrections
2 officers confirmed that the sharpened lens held by appellant could cause severe injuries
or death.
A latter search of appellant’s cell yielded other objects. One was another
sharpened eyeglass lens. A sharpened plastic pen was the other.
The foregoing incidents resulted in appellant’s convictions for the crimes
mentioned in our opening paragraph. These appeals ensued.
Issue One: Sufficiency of the Evidence—Assault on Public Servant
Through his first issue, appellant contends that the evidence was legally
insufficient to support the assault conviction. Allegedly, the evidence failed to establish
that appellant bit Ramos. We overrule the issue.
One commits the offense of assault on a public servant if he intentionally,
knowingly, or recklessly causes bodily injury to a person the actor knows to be a public
servant while the public servant is lawfully discharging an official duty. See 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(a)(8). It includes “even relatively minor
physical contacts so long as they constitute more than mere offensive touching.” See
Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (en banc).
Appellant does not challenge the evidence establishing that he knew Ramos to be
a public servant or that Ramos was lawfully discharging an official duty when the
encounter occurred. Instead, he maintains that no more than a mere modicum of
evidence indicates Ramos bit him. Yet, Ramos so testified. The jury was free to believe
the officer and discredit appellant’s contrary testimony. See Metcalf v. State, 597 S.W.3d
847, 855 (Tex. Crim. App. 2020) (stating that the jury is free to weigh the evidence and
3 determine whom to believe). So too was it free to believe the guard’s testimony about
experiencing pain for about a week after being bitten by appellant. Thus, some evidence
appears of record upon which a rational factfinder could conclude, beyond reasonable
doubt, that appellant assaulted a public servant. See id. at 855–56 (describing the
standard of review when assessing the sufficiency of the evidence to support a
conviction).
Issue Four—Deadly Weapon Finding
The remaining issues deal with the deadly weapon finding entered in cause
079837-E-CR, i.e., the conviction for possessing a deadly weapon in a penal institution.
The fourth issue is dispositive, and we address it.
Through Issue Four, appellant contends that the jury, as opposed to the court, was
obligated to determine whether or not he used or exhibited the deadly weapon in some
way when possessing it. Because it did not, the trial court was precluded from entering
an affirmative finding on the matter. That affirmative finding nonetheless appears in the
judgment under the category “Finding on Deadly Weapon.” There, we see the statement
“Yes, not a firearm.” In entering it, the trial court allegedly erred. We sustain the issue.
When, as here, the jury determines both guilt and punishment, it is the proper
factfinder to determine whether a defendant used a deadly weapon. Walker v. State, No.
05-13-01082-CR, 2014 Tex. App. LEXIS 11869, at *5 (Tex. App.—Dallas Oct. 29, 2014,
no pet.) (mem. op., not designated for publication); see Fann v. State, 702 S.W.2d 602,
604 (Tex. Crim. App. 1986) (en banc) (acknowledging that the trial court may make the
finding when it is the trier of fact). How the jury makes its affirmative findings underwent
debate years ago. That led to our Court of Criminal Appeals specifying the ways it could
4 be done. Three were initially mentioned in Lafleur v. State, 106 S.W.3d 91 (Tex. Crim.
App. 2003) (en banc). They were as follows: 1) through the trier of fact’s verdict on the
indictment when the indictment itself alleges the use of a deadly weapon; 2) when “the
instrument used is a per se deadly weapon, such as a pistol or a firearm”; and 3) when
the jury makes an affirmative finding through a deadly weapon special issue included in
the jury charge. Id. at 95–96. These modes were intended to pretermit consideration of
the facts of the case as a means of implying an affirmative finding from them. Id. To the
foregoing, another avenue was added. It entailed consideration of the application
paragraph of the indictment. If that paragraph “explicitly and expressly requires the jury
to find that the defendant used a deadly weapon in the commission of the offense” and
the jury finds the accused committed the offense, then it can be said the jury also found
that a deadly weapon was used or exhibited in the crime’s commission. Id. at 98.
Eventually, one other less explicit way was suggested by our Court of Criminal
Appeals. It concerned the use of deductive reasoning. That is, in situations where there
would be no way the accused could have been found guilty of the crime without having
used or exhibited a deadly weapon, then an affirmative finding of a deadly weapon may
be appropriate. Duran v. State, 492 S.W.3d 741, 747–48 (Tex. Crim. App. 2016),
(explaining Crumpton v. State, 301 S.W.3d 663 (Tex. Crim. App. 2009)). But we say “may
be appropriate” since, in Duran, the Court of Criminal Appeals also questioned the use of
that method. Duran, 492 S.W.3d at 748. For purposes of this case, we assume arguendo
that the deductive reasoning approach is a viable avenue and apply all five modes
discussed above.
5 Though the State accused appellant, through the indictment, of possessing a
deadly weapon, its use or exhibition was not elemental to conviction. Like the situation
where a felon is not deemed to have used or exhibited a deadly weapon by simply
possessing a firearm (a per se deadly weapon), see Plummer v. State, 410 S.W.3d 855,
865 (Tex. Crim. App. 2013) (noting that the deadly weapon must facilitate commission of
the crime to support a deadly weapon finding since mere possession of it is insufficient),
appellant could well have possessed the deadly weapon at bar without engaging in an
act exemplifying use or exhibition. So, application of the deductive mode does not support
the affirmative finding. Nor did the indictment or jury charge include allegations exceeding
mere possession. In other words, none alluded to appellant’s using or exhibiting the
deadly weapon to facilitate his possession of it. And, that the use or exhibition of a deadly
weapon was not presented to the jury via a special issue is also clear. Consequently,
application of none of the modes contrived by the Court of Criminal Appeals illustrate that
the jury affirmatively found appellant used or exhibited the deadly weapon while
possessing it.
Indeed, the State concedes the absence of an express finding by the jury and
argues it does not matter. This is purportedly so because appellant failed to preserve the
debate for appeal by first broaching it below. We conclude otherwise for the following
reason. A trial court has a sua sponte duty to sign and enter a proper judgment. Mayes
v. State, 536 S.W.3d 102, 112 (Tex. App.—Amarillo 2017, pet. ref’d). In so holding, we
viewed that obligation as relieving an appellant of raising before the trial court a complaint
about its failure to enter a judgment comporting with the jury’s verdict. Id. Determining
whether appellant used or exhibited the deadly weapon fell within the bailiwick of the jury.
6 The latter made no such finding within its verdict. Furthermore, the trial court had the sua
sponte obligation to enter a verdict reflecting that. To paraphrase Sam Mussabini, the
trial court can’t put in what the jury left out. 1 In other words, it had the sua sponte duty to
forgo entry of an affirmative deadly weapon finding. By nonetheless entering it, the trial
court’s judgment failed to comport with the verdict. So, appellant had no obligation to
bring the mistake to its attention as a prerequisite to our consideration of the matter.
Having overruled appellant’s first issue, we affirm the trial court’s judgment in
cause number 079836-E-CR. Having sustained appellant’s fourth issue, we delete from
the trial court’s judgment in cause number 079837-E-CR the affirmative deadly weapon
finding; as modified, said judgment is affirmed. 2
Brian Quinn Chief Justice
Do not publish.
CHARIOTS OF FIRE (Allied Stars Ltd & Enigma Prods. 1981) (“You can’t put in what God’s left out.”– 1
Sam Mussabini). 2 Sustaining the fourth issue relieved us of the need to address issues two and three. 7