Richard Thornton v. State

• Court: Court of Appeals of Texas
• Decided: February 10, 2006
• Docket: 12-04-00045-CR
• Status: Published

Opinion

                                  NO. 12-04-00045-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

RICHARD E. THORNTON,                             '     APPEAL FROM THE 145TH

APPELLANT

V.                                                                         '     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        '     NACOGDOCHES COUNTY, TEXAS

                                                      MEMORANDUM OPINION

Appellant Richard E. Thornton was convicted of aggravated assault, sentenced to ninety-nine years of imprisonment, and assessed a $10,000.00 fine.  Appellant raises five issues for review.^[1]  We affirm.

Background

On July 25, 2003, Appellant was indicted for the offense of aggravated assault.  The first count of the indictment specifically alleged that on or about May 25, 2003, Appellant

did then and there intentionally, knowingly, or recklessly cause bodily injury to Martha Rocka by choking her, and [Appellant] did then and there use or exhibit a deadly weapon, to-wit: an electrical cord, during the commission of said assault.

The second count of the indictment alleged that on or about May 25, 2003, Appellant   

did then and there intentionally or knowingly threaten Martha Rocka with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: a knife, during the commission of said assault. . . .

The indictment also alleged that on April 23, 1984, Appellant was convicted of the felony offense of aggravated sexual abuse of a child in the 176th Judicial District Court of Harris County.

On September 11, the deputy district clerk of Nacogdoches County issued a criminal subpoena for Martha Rocka to appear in court on November 10, 2003 to testify as a witness at Appellant=s trial.  The officer=s return on the subpoena is blank, indicating that it was never served on Rocka.

On October 24, Appellant filed a AMotion for Notice of State=s Intention to Use Evidence of Extraneous Offenses at Trial,@ asking the trial court to order the State to give him notice of its intent to use evidence of any of Appellant=s 1) prior crimes, wrongs, or acts and  2) prior convictions used to impeach Appellant=s credibility, including sexual and assaultive offenses.  The trial court granted Appellant=s motion, and the State complied with the order on October 30.  That same day, the State filed a motion to amend the first count of the indictment, asking the trial court to change the deadly weapon from Aan electrical cord@ to Ahis hands.@  The State did not ask for any other amendments to the indictment.  The trial court granted the State=s motion on October 31.

Appellant=s case went to trial on November 10.  At the conclusion of the trial, the jury found Appellant Aguilty@ of aggravated assault.  Following the punishment phase of the trial, the jury sentenced Appellant to ninety-nine years of imprisonment and assessed a $10,000.00 fine.

Appellant filed a motion for new trial, which was denied.  Appellant timely filed a notice of appeal and now challenges his conviction in five issues.^[2]

Denial of Appellant=s Right to Confront His Accuser

The record reflects that Rocka testified at the punishment phase of the trial only.  Although Rocka did not testify during the guilt/innocence phase, the State elicited testimony from four witnesses that Rocka spoke to about the assault that took place on May 25.  In his first issue, Appellant contends that the trial court violated his Sixth Amendment right to confront his accuser during the guilt/innocence phase of the trial when it allowed, under the excited utterance exception to the hearsay rule, four of the State=s witnesses to testify as to what Rocka told them on May 25, 2003.  See U.S. Const. amends. VI, XIV; Tex. R. Evid. 803(2).  Specifically, Appellant complains that the trial court erred by allowing testimony from Rita Butler, Nacogdoches County Sheriff=s Deputies Shane Johnson and Kerry Williamson, and Timothy Hooper.

Standard of Review

We review a trial court=s rulings on whether to admit or exclude evidence for an abuse of discretion.  Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh=g).  If the court=s ruling is within the zone of reasonable disagreement, we will not disturb it on appeal.  Metts v. State, 22 S.W.3d 544, 550 (Tex. App.BFort Worth 2000, pet. ref=d).  If we can uphold the trial court=s decision on any theory applicable to the case, we will do so.  Id.  In considering this constitutional issue, we review the trial court=s ruling de novo.  Muttoni v. State, 25 S.W.3d 300, 304 (Tex. App.BAustin 2000, no pet.).

Applicable Law

The accused in a criminal case has a constitutional right to confront and cross examine the witnesses against him.  U.S. Const. amends. VI, XIV.  The admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause because the defendant is not afforded the opportunity to confront the out of court declarant and cross examine him or her regarding any testimonial statements.  U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 41, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (2004); Wall v. State, 2006 WL 119575, at *3 (Tex. Crim. App. Jan. 18, 2006); Key v. State, 173 S.W.3d 72, 74 (Tex. App.BTyler 2005, pet. ref=d).  To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for such objection becomes apparent.  Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).  A hearsay objection does not preserve error on Confrontation Clause grounds.  Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004).

Testimony of Rita Butler

Butler stated that on May 25, she was in her front yard and saw a naked female Acoming over@ the four foot high fence that surrounds her property.  After the female climbed over the fence, she ran up to Butler and began mumbling.  Both of the female=s eyes were black and one was swollen shut.  The female asked to come into Butler=s house to use the phone to call the police.  Butler did not know the female, but she later told Butler that her name was Martha Rocka.  When the State asked Butler if the female told her her name, Appellant=s counsel objected on the basis that the statement was hearsay.  The State argued that the statement was one of identification and was also an excited utterance.  The trial court overruled the objection.

 Butler further testified that Rocka was Aterrified@ and Afrightened.@  Butler stated that Rocka told her she was scared because Ashe [had] been beaten all night.@  At this time, Appellant renewed his objection to any statements Rocka made to Butler on the basis that they were hearsay and that Butler=s testimony violated Athe Confrontation Clause under the Constitution.@  The trial court overruled his objections and allowed him Aa running objection for any statements made by Martha Rocka@ to Butler, but did not specify the grounds.  Butler stated that Rocka told her ARicky Thornton@ was the person who Ahad beat her all night@ and that Rocka told her she Agot away@ when Appellant had gone to sleep.  Rocka also told Butler that Appellant Ahad done some things to her breast and vagina.@  When asked if Rocka told her whether Appellant had restrained her in any way, Butler testified that Rocka said Appellant Ahad tied her up.@

Testimony of Timothy Hooper

Hooper stated that he is a full time Emergency Medical Technician for Nacogdoches County Memorial Hospital.  At 8:34 a.m. on May 25, 2003, he and another EMT, Bill Kopper, responded to a call in Douglas, Texas in Nacogdoches County regarding an injured person.  When they arrived at the scene at 8:52 a.m., Kopper got out of the ambulance first while Hooper stayed behind Ato check on the radio.@  Hooper then exited the ambulance and went around the back of Butler=s house, where he saw Kopper talking to Aa lady who appeared to [have been] beaten.@  Hooper noticed that the woman had two black eyes, a swollen nose, dried blood on her face, and Aa lot of bruising around her neck@ and wrists.  When the State asked what Rocka had told him, Hooper stated that she said she had Abeen beaten throughout the prior evening, and tied up.@  Appellant=s counsel lodged a global  Ahearsay@ objection to the statement Rocka made to Hooper about what had happened to her.  This objection was overruled.

Rocka also told Hooper that Appellant poured hot candle wax on her body Ain particular areas@ and that the bruising around her neck occurred as a result of Appellant=s choking her Aduring the beatings.@  The trial court granted Appellant a running objection based on hearsay as to Hooper=s testimony regarding Rocka=s statements about being choked.  Rocka further related to Hooper that Appellant choked her with his hands Anumerous times,@ which resulted in her passing out Anumerous times.@

Testimony of Deputy Shane Johnson

Shane Johnson, a Patrol Deputy with the Nacogdoches County Sheriff=s Department, testified that at 8:31 a.m. on May 25, 2003, he was called to a location in Douglas, Texas, where he Adiscovered a lady that had been assaulted.@  He first talked to Butler and then began talking to Rocka.  When he saw Rocka, he noticed that her face had bruising and swelling and that one of her eyes was swollen completely shut.  Rocka=s other eye was Apartially closed.@  Johnson also noticed that Rocka had Amarks and redness around her neck area, and also some more bruising on her forearms.@  He stated that Rocka was Avery upset,@ Adistraught,@ and Avery timid,@ Akind of like an abused animal.@  

When asked what Rocka was able to tell him, Johnson said that she told him ARicky Thornton had beat her up and had choked her@ several times.  Appellant=s counsel objected to this question on the basis that it asked for a hearsay response.  The State contended that Rocka=s statement was an excited utterance and was excluded from the hearsay rule because it was made  before the paramedics arrived.  The trial court overruled the objection, but gave Appellant a running hearsay objection to the remainder of Johnson=s testimony.

Johnson further stated that after he obtained Rocka=s information, and after the paramedics had taken her to the hospital, he and Deputy Kerry Williamson went to Appellant=s home and arrested him.  They went to Appellant=s house because Rocka told them that after Aher attack, she, during the morning, was able to get away from the Thornton residence and fle[e].@  Johnson later obtained a search warrant for Appellant=s residence and surroundings and searched a Abox van@ on Appellant=s premises, which Ais where the alleged assault took place.@ 

With regard to some flashlights that were found in the van when the warrant was executed, Johnson testified that before the medical personnel took Rocka to the hospital, she told him a red flashlight had been used to penetrate her vagina.  When asked who did this to her, Rocka replied, ARicky Thornton.@  Appellant raised a hearsay objection after Johnson said ARicky Thornton.@  The trial court overruled the objection.  On redirect examination, Johnson stated that Rocka also told him that she had been whipped and beaten with an extension cord.  He also said he did not see anything about Rocka that led him to believe that she was intoxicated as a result of ingesting an illegal substance.

Testimony of Kerry Williamson

Kerry Williamson, a deputy sheriff with the Nacogdoches County Sheriff=s Office, stated that when he and Johnson arrived at the Butler residence on May 25, Butler told him that Ashe had a lady sitting on her back porch that had been assaulted.@  When he saw the woman, who later identified herself as Rocka, he noticed that she Ahad been beaten severely.  She was very traumatized.@  He saw that she was Aterrified, shaking@ and was Anude, but she was covered with something that [Butler] had given her.@  Rocka was Ajust very emotional, crying, [and] scared.@ 

When asked what Rocka told him, Williamson said she told him that over the course of the night, she had Abeen beaten several times, choked, tied up, hanged with a cord, [and had] hot wax poured in her eyes, her breasts, and her vagina.@  Rocka also told him that she had been Aviolated with a flashlight,@ meaning that Athe flashlight was used to penetrate her vagina.@  She further stated that she had been Achoked manually with hands, and also a ligature or a cord, some type of cord.@

Appellant=s counsel did not lodge any hearsay or Confrontation Clause objections to Williamson=s testimony.

Analysis

The Texas Court of Criminal Appeals recently addressed post-Crawford Confrontation Clause arguments in the Wall decision and gave courts guidance as how to determine whether statements are excited utterances or testimonial in nature.  See Wall, 2006 WL 119575, at *3.  However, in the instant case, we need not address the issue.  Although Appellant objected to one portion of Butler=s testimony on the basis that it violated the Confrontation Clause, his global Ahearsay@ objections to the remainder of Butler=s testimony and to the testimonies of Hooper and Johnson did not preserve error on Confrontation Clause grounds.  See Paredes, 129 S.W.3d at 535.  Because Appellant=s Confrontation Clause issue on appeal does not comport with the global hearsay objections made at trial, he has waived error.  See Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994).  With regard to the running hearsay and Confrontation Clause objection to one portion of Butler=s testimony, Appellant has waived any error regarding this testimony because the same facts were elicited through the other three witnesses without Confrontation Clause objections. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (any error regarding improperly admitted evidence is waived if that same evidence is later admitted without objection).   Appellant also waived any hearsay or Confrontation Clause challenges to Williamson=s testimony by failing to lodge any objections to Williamson=s statements of what Rocka had told him about Appellant=s actions.  See Tex. R. App. P. 33.1; Wright, 28 S.W.3d at 536 (holding any error under Confrontation Clause waived because of failure to object at trial).  Accordingly, Appellant=s first issue is overruled.

Legal Sufficiency of the Evidence

In his second issue, Appellant contends that the evidence adduced at trial is legally insufficient to sustain his conviction for aggravated assault because the State did not prove that he used his hands in a manner that could have caused death or serious bodily injury.

Standard of Review

In a legal sufficiency review, we view all of the evidence in a light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2879, 61 L. Ed. 2d 560, 573 (1979)).  Applicable Law

A person commits the offense of aggravated assault if the person commits an assault on another person and 1) causes serious bodily injury to that person or 2) uses or exhibits a deadly weapon during the commission of the assault.  Tex. Pen. Code Ann. ' 22.02(a) (Vernon Supp.  2005).^[3]  Serious bodily injury is defined as bodily injury that 1) creates a substantial risk of death, 2) causes death, 3) causes serious permanent disfigurement, or 4) causes protracted loss or impairment of the function of any bodily member or organ.  Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2005).  A deadly weapon is 1) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or 2) anything that in the manner of its use is capable of causing death or serious bodily injury.  Tex. Pen. Code Ann. ' 1.07(a)(17) (Vernon Supp. 2005).       

The first count of the indictment alleged that Appellant's hands constituted a deadly weapon.  Body parts, such as hands and knees, may be deadly weapons based on their manner of use or intended use and their capacity to produce death or serious bodily injury.  Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983); Petruccelli v. State, 174 S.W.3d 761, 770 (Tex. App.BWaco 2005, no pet.).  To determine whether something is a deadly weapon, the jury may consider all the surrounding facts, including the defendant's words and whether the victim feared death or serious bodily injury.  English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978).  The State does not have to prove that the complainant actually sustained serious bodily injuries.  Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.BAustin 1998, no pet.); Clark v. State, 886 S.W.2d 844, 845 (Tex. App.BEastland 1994, no pet.).  The State must only prove that the hands were capable of causing serious bodily injury in the way they were used or intended to be used.  Hill v. State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996); Jefferson, 974 S.W.2d at 892 (emphasis added).

Hooper, Johnson, and Williamson all testified that Rocka stated Appellant choked and beat her with his hands.  Hooper, an emergency medical technician, stated that when a person chokes another person with his hands, the person=s hands are capable of causing serious bodily injury or death.  He said that when a person is choked, the blood circulation is cut off to the brain, which causes a person to pass out.  As an EMT, he has seen and investigated cases where a person was killed by being choked.  Bill Koppel, the paramedic who arrived at the scene with Hooper, testified that when a person is choked, the trachea can be crushed, which can shut off the airway and the air supply to the lungs.  Alternatively, the trachea can be squeezed long enough to cut off the air supply to the person, which can cause death.  Based on this testimony, we hold the jury could have rationally concluded that Appellant's hands, in the manner of their use or intended use, were capable of causing serious bodily injury. Appellant=s second issue is overruled.

Fatal Variance in Proof and Indictment

In his third issue, Appellant contends that his due process rights were violated because of a

fatal variance in the proof adduced at trial and the allegations in the indictment.  Specifically, Appellant argues that the State proved he committed, in addition to aggravated assault, a sexual assault by penetrating Rocka=s vagina with a flashlight.  Since sexual assault and aggravated assault are different offenses, Appellant contends that the indictment fatally varied from the proof adduced at trial.

As a general rule, an indictment that mirrors the language of the statute creating and defining the offense charged will be sufficient.  Boney v. State, 572 S.W.2d 529, 532 (Tex. Crim. App.1978).  A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.  Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).  In a variance situation, the State has proven the defendant guilty of a crime but has proven its commission in a manner that varies from the allegations in the charging instrument.  Id.

In the case before us, the State's indictment mirrored the language of the statute that defines the offense of aggravated assault.  The State also introduced evidence showing that Appellant committed aggravated assault against Martha Rocka in the manner alleged in the indictment. Appellant's variance claim is misplaced. Although more information about the events was elicited at trial than was alleged in the indictment, this additional testimony did not create a variance in the allegations in the indictment and the proof elicited at trial.  Appellant=s third issue is overruled.

State=s Failure to Disclose Favorable Evidence

In his fourth issue, Appellant maintains that the State violated his due process rights by failing to disclose exculpatory evidence, namely, an affidavit Rocka filed on August 19, 2003.  See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963).  The affidavit stated, in pertinent part, that 1) Appellant=s conduct was performed with Rocka=s consent because she and Appellant enjoyed masochistic sex, 2) Rocka was Anot in her right mind@ because she Awas on drugs for three days@ prior to the time she escaped from Appellant=s residence, and 3) Rocka was Aasking the State to drop the assault and kidnaping [sic] charges against Richard Thornton because none of it is true.@  The affidavit was signed by Martha Rocka and was notarized by a notary public on August 18. 

A Brady violation occurs when the State suppresses, willfully or inadvertently, evidence favorable to a defendant.  Harm v. State, 2006 WL 168374, at *2 (Tex. Crim. App. Jan. 25, 2006). There can be no Brady violation without suppression of favorable evidence.  Id.  The State's duty to reveal Brady material to the defense attaches when the information comes into the State's possession, whether or not the defense requested the information.  Thomas, 841 S.W.2d at 407. However, the State is not required to seek out exculpatory evidence independently on a defendant=s behalf or furnish a defendant with exculpatory or mitigating evidence that is fully accessible to the defendant from other sources.  Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App.1976).

The record in this case demonstrates that Rocka=s affidavit was filed in the Nacogdoches County District Clerk=s Office on August 19, 2003.  There is no evidence in the record to show that the State ever came into possession of Rocka=s affidavit.  Both the State and Appellant had access to the affidavit because it was filed in the district clerk=s office.  Appellant presents us with no proof to demonstrate that the State suppressed any evidence favorable to him; therefore, we cannot conclude that a Brady violation occurred.  Appellant=s fourth issue is overruled.

Denial of Effective Assistance of Counsel

In his fifth and final issue, Appellant argues that his counsel=s Afailure to investigate and interview the complainant and make the proper objections at the proper time fell below an objective standard of reasonableness and compels a finding of ineffectiveness.@  Specifically, Appellant complains that his counsel was ineffective because he failed to 1) interview Rocka before trial and  2) object when the State did not prove that Rocka sustained serious bodily injury. 

Claims of ineffective assistance of counsel are evaluated under the two‑step analysis articulated in Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L. Ed. 674 (1984).  The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.  See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.  To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness.  See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  The reviewing court will not find ineffectiveness by isolating any portion of trial counsel=s representation, but will judge the claim based on the totality of the representation.  See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney.  See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).  To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  Before we will sustain an ineffective assistance of counsel claim related to a failure to object, the appellant must show that the trial court would have erred had it overruled such an objection.  Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  We must presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See id.  Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did.  See id.  Appellant cannot meet this burden if the record does not affirmatively support the claim.  See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.BCorpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim).  A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim.  See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd).

In the case at hand, the record does not show 1) whether counsel interviewed Rocka before trial or 2) the reasoning underlying counsel=s decisions concerning who to interview and call as a witness.  Therefore, Appellant has not rebutted the presumption that his counsel=s actions and decisions were motivated by sound trial strategy.  See Jackson, 877 S.W.2d at 771.  With regard to Appellant=s argument that his counsel was ineffective for failing to object when the State did not prove Rocka sustained a serious bodily injury, the testimonies of Hooper and Kopper demonstrate that even if such an objection was lodged, the trial court would not have erred had it overruled such an objection.  See Vaughn, 931 S.W.2d at 566.  It is not ineffective assistance for counsel to forgo making futile objections.  See Wood v. State, 4 S.W.3d 85, 91 (Tex. App.BFort Worth 1999, pet. ref=d). 

We hold that Appellant has not met the first prong of Strickland because he has not shown that his counsel=s performance fell below an objective standard of reasonableness.  Therefore, we cannot conclude that Appellant's trial counsel was ineffective.  Appellant=s fifth issue is overruled.

Conclusion

Appellant=s issues are without merit because 1) he failed to properly preserve any error regarding the Confrontation Clause during the testimony of the witnesses, 2) the evidence adduced at trial was legally sufficient to support the jury=s verdict, 3) there was no fatal variance between the proof and the indictment, 4) no Brady violation was shown, and 5) the record does not support his claim of ineffective assistance of counsel.  Accordingly, the judgment of the trial court is affirmed.

    SAM GRIFFITH   

   Justice

Opinion delivered February 10, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                             (DO NOT PUBLISH)

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^[1] Appellant filed his brief pro se.

^[2] The State did not file a brief in this case. 

^[3] A person commits the offense of assault if the person 1) intentionally, knowingly, or recklessly causes bodily injury to another, 2) intentionally or knowingly threatens another with imminent bodily injury, or 3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.  Tex. Pen. Code Ann. ' 22.01(a) (Vernon Supp. 2005).