Wood v. State

577 S.W.2d 477, 1978 Tex. Crim. App. LEXIS 1477

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for making a false report to a police officer. V.T.C.A. Penal Code, Sec. 37.08. Trial was to the court. Punishment was assessed at 180 days, probated, and a fine of $200.

Appellant contends that the evidence is insufficient to support the conviction and challenges the statute upon which the conviction is based on various constitutional grounds. The challenge to the sufficiency of the evidence necessarily requires a detailed review of the evidence.

On August 15, 1975, the appellant, Anita Sue Wood, made a complaint to the Irving Police Department accusing Officer George Wolf of being intoxicated while on duty. The complaint, originally made to Captain Lowe, was referred to Lieutenant Glen Mariner who immediately investigated by contacting Officer Wolf. He determined that Wolf had not been drinking nor showed any signs of intoxication. The appellant, when confronted with Mariner’s findings and told that no further action would be taken without a written statement, made the statement set out below.

“VOLUNTARY STATEMENT. Not under Arrest.

City of Irving Police Department

Before me, the undersigned authority, on this the 15th day of AUGUST A.D. 1975 personally appeared ANITA SUE WOOD, W/F/23, Address 810 Cherrywood Ct Irving, Texas Age 23, Phone No. 254-8550.

Deposes and says: About 4:20 PM on Friday, 8/15/75,1 parked outside the Irving Bank & Trust on Main Street.

I was parked next to a fire zone. I was in the bank for about 5 minutes and when I came out, the officer was writing a ticker [sic] for my car. I asked him if this was a ticket for my car and he said yes. I was standing there talking to the officer and I could smell liquor on his breath. I was about five (5) feet from him and could smell it strongly. I was upset when I left but I told him that I did not intend to pay the ticket. He just looked at me and I went on and left. Later I contacted Captain Lowe of the Irving Police Department and told him what had happened and that Officer Bill Wolf had been drinking and was in uniform and was intoxicated. Later I was contacted by Lieutenant Mariner on the phone, where I told him what had happened. I came to the Irving Police station, where I freeely [sic] gave the above information to Lieutenant Mariner. This statement is true and correct to the best of my knowledge.

/a/ Anita Wood

witt: /s/ Rachel Castro 8/15/75

Subscribed and sworn to before me on this the 15th day of August A.D. 1975

[Seal on original] /s/ G. B. Mariner _

Notary Public, Dallas County, Texas”

The appellant’s testimony mirrored the facts set out in her statement. Her testimony also showed that her assessment of Wolf’s intoxication was based solely on the smell of alcohol on his breath, not on any physical signs of intoxication.

Officer Wolf’s account of the transaction regarding the traffic citation confirmed the appellant’s testimony in all but two areas. Wolf stated that the appellant was parked in a fire lane and denied the allegation that he had been drinking that afternoon. Wolf added that at the end of this 4 or 5 minute exchange, the appellant called him a bastard. Wood’s testimony also reflected that the insult had occurred.

In support of Wolf’s testimony, Mariner and four other witnesses testified that Wolf had not been drinking. Each of these witnesses had observed Wolf on the afternoon in question, and each maintained that Wolf exhibited no signs of intoxication.

On cross-examination, Wolf recalled that he had applied after-shave lotion about an hour before the exchange, and that he had smoked cigarettes earlier in the day. The evidence reflected that there was a restaurant near the scene of the encounter and that exhaust fumes from heavy traffic were present.

On cross-examination of the appellant, the State established that her brothers “had a lot of contact with,” “had been handled by,” and “were no strangers to” the Irving Police Department. The appellant denied, however, that she harbored any ill feelings toward the Irving Police Department.

We find the evidence insufficient to support a conviction, thus it is unnecessary to reach appellant’s claim that the statute is unconstitutional. In considering the sufficiency of the evidence, we are, however, confronted with questions of constitutional dimension.

The appellant urges that her conviction was in violation of Article I, Sec. 8, and Article I, Sec. 27, of the Texas Constitution and the First Amendment of the United States Constitution.¹ Appellant contends that any act seeking redress or involving free speech would be privileged from prosecution. As set out in this opinion, all such acts are not privileged, but instead must depend on the surrounding circumstances to bring them within the privilege. The conduct prohibited by Y.T. C.A. Penal Code, Section 37.08(a)(1), and the freedoms guaranteed by these constitutional provisions must be reconciled.

Article I, Sec. 27, of the Texas Constitution provides that:

“RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.”

Applying this provision in a civil libel case, the Court in Connellee v. Blanton, 163 S.W. 404, 406 (Tex.Civ.App., Ft. Worth, 1913, no writ), held that “[e]very communication is privileged which is made in good faith with a view to obtain redress for some injury received or to prevent some public abuse.” The appellant’s actions were an attempt to obtain redress for what she arguably perceived as official misconduct, thus the State must prove that her allegations were in bad faith and for reasons other than to obtain action on a valid grievance.

The appellant was convicted under V.T.C.A. Penal Code, Sec. 37.08(a)(1), which provides that:

“(a) A person commits an offense if he: “(1) reports to a peace officer an offense or incident within the officer’s concern, knowing that the offense or incident did not occur;

The culpable mental state required by this statute, knowing, is defined in V.T.C.A. Penal Code, Sec. 6.03(b), as:

“(b) A 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.”

Thus, the mental state requisite to convict under Sec. 37.08(a)(1) would normally require a showing that the defendant was aware that the circumstances surrounding her conduct existed. In most cases, the State relies on circumstantial evidence to prove the required culpable mental state. Thus, the culpable mental state required by statute could be shown by an inference arising from the proof of the actual state of the facts coupled with the defendant’s opportunity to perceive them.

A greater showing is necessary to prove the bad faith required in this case. Under Connellee v. Blanton, supra, the State must go further and prove that appellant’s representations were in bad faith and for reasons other than to obtain action on a valid grievance. The State must introduce evidence showing that the appellant did actually perceive the facts as they existed in addition to evidence proving the state of the facts and showing her opportunity to perceive them. Viewing the evidence in the light most favorable to the conviction, the evidence shows that Wolf was not intoxicated and that appellant had ample opportunity to perceive this. The State’s evidence that appellant knew that Wolf was not intoxicated is, however, insufficient.

The State seeks to show the appellant’s actual knowledge by evidence of both a motive to fabricate her allegations and the narrow factual basis for her claim. This evidence is too meager to support such an inference of actual knowledge.

To find a motive from her brothers’ involvements with the Irving police would require more evidence that she harbored resentment for the police department’s actions. Her reaction to being issued a citation is equivocal, insofar as it cannot be used to show that she had ill feelings toward the department because of her brothers’ involvements. Her resentment at being given the ticket alone could have supplied the motivation for her actions during the incident. However, it does not follow that a motive to falsity would stem from one such incident. Thus this evidence is insufficient to infer she actually knew the officer was not intoxicated and that she acted in bad faith.

Her conclusion that the officer was intoxicated based solely on the odor of alcohol on his breath does not give rise to the inference that she knew that he was not intoxicated.

The evidence of her motive or narrow factual basis for her conclusion infers no more than a suspicion. In no way has every other reasonable hypothesis been excluded. We conclude that the circumstantial evidence in this case is insufficient to support the conviction.²

Having found that reversal must result, as the evidence is insufficient, the Supreme Court’s decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (June 14, 1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (June 14, 1978), dictate that no further prosecution be had in this case.

The judgment is reversed and reformed to show acquittal.

Before the Court en banc.

1 . Appellant’s contention that her right to free speech was violated is founded on both Tex. Const. Art. I, Sec. 8,

“FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

and U.S.Const. Amend. I:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The rights guaranteed by these provisions are delineated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In Sullivan, supra, the Supreme Court held that liability for criticism of a public official could be imposed only for a false statement made with malice. The Supreme Court later made the holding in Sullivan applicable to criminal prosecutions as well. Garrison v. Louisiana, 379 U.S. 64, 67, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). It is not necessary for the Court to reach this contention, however, as Tex.Const. Art. I, Sec. 27, is dispositive on the constitutional issues.

2 . This Court holds only that the evidence was insufficient and does not pass on the constitutionality of the statute. Nor does this Court hold that every prosecution under this statute must meet the standard of proof set out above. In Norton v. State, 564 S.W.2d 714 (Tex.Cr. App.1978), this Court was presented with an appeal from a conviction under Sec. 37.08, supra. The facts showed that the defendant had procured marihuana, secreted it in his ex-wife’s car, and then informed the police that his ex-wife was selling narcotics out of her car. He raised no constitutional claims, nor did the facts indicate any were present. The defendant’s actions in Norton, in contrast to the appellant’s actions in the present case, did not entitle the defendant to the constitutional protection present in this case.