ACCEPTED 02-15-00113-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 9/14/2015 8:10:40 AM DEBRA SPISAK CLERK
NO. 02-15-00113-CR
FILED IN 2nd COURT OF APPEALS COURT OF APPEALS FORT WORTH, TEXAS FOR THE SECOND DISTRICT OF TEXAS 9/14/2015 8:10:40 AM DEBRA SPISAK Clerk
ZACHARY R. ROBINSON
V.
STATE OF TEXAS
ON APPEAL FROM COUNTY CRIMINAL COURT NO. 1, DENTON COUNTY, TEXAS THE HONORABLE JIM E. CROUCH PRESIDING
BRIEF OF APPELLANT
SUBMITTED BY:
Seth Kretzer Law Offices of Seth Kretzer 440 Louisiana Street; Suite 200 Houston, TX 77002 Bar Number: 24043764 Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Appellent/Defendant:
Counsel for Appellant:
Seth Kretzer Law Offices of Seth Kretzer 440 Louisiana Street; Suite 200 Houston, TX 77002 713-775-3050 (Direct) seth@kretzerfirm.com (email)
Appellee/Plaintiff:
The State of Texas
Counsel for Appellee:
Catherine Luft Assistant Criminal District Attorney 1450 East McKinney Denton, TX 76209
i TABLE OF CONTENTS
Page IDENTITIES OF PARTIES AND COUNSEL………………..………………...….i
INDEX OF AUTHORITIES…..………………………………………………..…iii
RECORD REFERENCES………...……………...……………………………..…iv
STATEMENT OF THE CASE………………………..……………………..…….v
ISSUES PRESENTED……………….……………………………………..……...v
STATEMENT OF FACTS……………………………..……………………..…....1
SUMMARY OF ARGUMENT……………………..………………………..…….9
ARGUMENT……………………………………..…………………………..…….9
A. Elements of Interference with an Emergency Call………………..……..9
B. Ms. Kimberling Did Not Reasonably Believe That She Was In Fear of Imminent Assault……………………………………...………..10
C. Mr. Robinson Did Not Know That He Was Preventing or Interfering With An Emergency Call……….…………………………….………...13
PRAYER…………………………….……………………………………………14
CERTIFICATE OF COMPLIANCE…………………………..………………….15
CERTIFICATE OF SERVICE………………………………………..…………..15
APPENDIX
ii INDEX OF AUTHORITIES
Page
Federal Case
Jackson v. Virginia, 443 U.S. 307 (1979)……………………………………….…8
State Cases
Louis v. State, 393 S.W.3d 246 (Tex.Crim.App.2012)…………………………….8
Matlock v. State, No. 12–05–00413–CR, 2006 WL 2106951 (Tex.App. July 31, 2006)……………………………………………….......10,11,13
Statutes
Tex. Pen. Code § 1.07…………………………………………………….…....10,11
Tex. Pen. Code § 22.01……………………………………………………………11
Tex. Pen. Code § 42.062…………………………………………………......9,10,11
iii RECORD REFERENCES
The Record citing convention contained below is used throughout Appellant’s Brief.
CR Vol. 1 p. ___ Clerk’s Record Volume 1, page ___
CR Vol. 2, p. ___ Clerk’s Record Volume 2, page ___
CR Vol. 3, p. ___ Clerk’s Record Volume 3, page ___
iv STATEMENT OF THE CASE
Zachary Robinson was charged with Assault Family Violence and
Interference with an Emergency Call. CR Vol. 2, p. 5-6. The jury returned a
unanimous verdict of not guilty of the charge of assault but guilty of the charge of
interference. See Robinson Judgment. This appeal challenges the legal sufficiency
of the jury’s finding with regard to the interference charge.
ISSUES PRESENTED
1. Whether a rational trier of fact could have found beyond a reasonable doubt that Ms. Kimberling reasonably believed herself to be in fear of imminent assault.
2. Whether a rational trier of fact could have found beyond a reasonable doubt that Mr. Robinson knowingly prevented Ms. Kimberling from making a phone call, or interfered with her ability to make a phone call.
v STATEMENT OF FACTS
A. Introduction
This case involves a he-said/she-said dispute of facts with very little third-
party or objective evidence. Because this Court reviews sufficiency challenges in
the light most favorable to the State’s theory of inculpation, the following
statement of facts is based almost entirely on Ms. Kimberling’s sworn version of
events.
B. Ms. Kimberling’s Version of Events
On the night of September 8, 2014, Mr. Robinson was an invited guest of
Rachel Kimberling at her house in Denton, Texas. They had dinner, watched a
movie, and went to bed together. CR. Vol. 2, p. 61. In bed, they argued, Mr.
Robinson touched Ms. Kimberling, she asked him to leave, and he got up and
walked to the front room of the house. CR Vol. 2, p. 62. Ms. Kimberling
explained:
Q. Let’s get the sequence down. You’re in bed. You’re arguing. He then grabs your arm and squeezes you tight. He then gets up on his own accord to leave, and then you followed him down the hallway . . . A. Yes.
CR Vol. 2, p. 86.
Ms. Kimberling admitted several times at trial that she told Mr. Robinson
that she was going to call 911 not because she was in fear of an assault, but out of
1 spite simply because she wanted him to leave. For example, Mr. Kimberling
testified on direct examination:
Q. Okay. So you follow him out into the hallway. What happened next?
A. I just remember he was walking in front of me and we were walking the same direction and we're yelling at each other, and I just remember him kind of like backing into me, like pushing me back. And I got upset, and we kept arguing, and I asked him to leave. And I told him that if he didn’t leave, I was going to call the cops.
Q. Okay. And once you told him you were going to call the police, what happened at that point?
A. He took my [white Iphone 5C].
Q. And where was your phone when he took it? A. Out of my hand.
Q. Now, once he took your phone, what happened next?
A. He went back into the master bedroom, and I followed him back there to try to get it back. And I was trying to fight to get into the bedroom. He was trying to fight to keep me out, and he smashed my hand in the door several times.
CR Vol. 2, P. 62-63.
On subsequent cross examination, she testified:
A. Yeah. When we’re fighting and I would have to threaten to call the cops before, yes, I would.
Q. You threatened to call the cops before?
A. Yes, I have.
Q. And did you tell the cops when they responded to this incident about all these other times?
2 A. I told them that I had threatened him before, that I had threatened to call the cops before, or his mother, and I've called his mother before. ... Q. So he’s now taking your phone. Did you say, no, that’s not – don’t take it; it’s my phone?
A. Yeah. Anytime that’s happened, yes.
Q. And why did you, as you’re chasing Mr. Mr. Robinson out of the house, why did you grab your phone to do so?
A. Like I said, anytime that we have fought in --in the past couple times, I’ve had to threaten to call the cops to get him to leave, and so I had it with me.
Q. So from the walk to (sic) the bedroom to the hallway, you didn't dial 911 at that point?
A. No.
Q. You were still –
A. We had just started arguing.
Q. It was just still a threat?
A. And, yeah, it was a threat. It's always just been a threat to leave. It wasn't my intention to actually have to need to call the cops, but it was a way to get him to leave.
Q. And then what happens? Does he get your phone out of your hand?
A. Uh-huh.
Q. What happens then?
A. He ran back to the bedroom, and I followed him. And he tried to shut the door, and I was trying to get in through the door.
3 Q. So you followed him, now, back to the bedroom, and you were trying -- he wouldn't let you inside the bedroom door?
A. Correct.
Q. And so you fought to get inside the bedroom door?
Q. Wouldn't you agree with me that your pattern of -- of activity at this point is just you chasing him around the house?
A. To get my phone.
Q. I mean, why would -- why is this phone so important? Why can't you just let him have it and get it later?
A. First off, he’s in my house, and second of all, I wanted to call the cops to get him to leave.
In sum, Ms. Kimberling’s testimony confirms that she was not in fear of Mr.
Robinson, but, rather, was using the threat of calling the police in order to get him
out of her house. As she testified, this was a regular pattern of behavior in their
typical arguments.
With regard to the remainder of their fight, Ms. Kimberling’s version is
summarized as follows: after fighting to get into the bedroom where Mr. Robison
was hiding, and in the process having her hand slammed in the doorway, Ms.
Kimberling then followed Mr. Robinson into the foyer area where she tripped over
an ottoman that he had pushed into her way, and then followed Mr. Robinson back
to the bedroom, where she struggled to get through the door and her foot was
4 slammed in the doorway. Ms. Kimberling then explained that she was locked in
the bedroom closet, and, uncertain of how she got out of the closet, then kicked
through and shattered the bedroom window, after which Mr. Robinson put her on
the bed and covered her with blankets. CR Vol. 3, p. 12-13. She says that Mr.
Robinson then lost interest in her, and she walked to her neighbor’s house, at
which point the 911 call was made. CR Vol. 2, p. 68-69.
C. Mr. Robinson’s Version of Events
Mr. Robinson’s version of events is not all that different from Ms.
Kimberling’s, with two important exceptions. First, while Ms. Kimberling claims
that Mr. Robinson was acting aggressively, he explains that he was merely trying
to get away from her, and that any injuries suffered by Ms. Kimberling were the
result of his efforts to get away from her (e.g., pushing an ottoman behind him into
her way, causing the “hysterical” Ms. Kimberling to trip; closing the doors behind
him so that she could not get to him, but accidentally catching her hand or foot in
the doorway) and de-escalate their argument. See CR Vol. 3, p. 166-70. And,
second, he claims that he grabbed Ms. Kimberling’s phone (a white IPhone 5C) by
mistake from a nightstand in the bedroom as he was gathering his belongings in his
attempt to leave the house, and did not intentionally take her phone from her hand.
CR Vol. 3, p. 164, 182. He testified that, unaware of the fact that he had left his
phone in Ms. Kimberling’s car, he believed that the phone he grabbed as he was
5 trying to leave the house was his phone (a white IPhone 5S), because their phones
are very similar. CR Vol. 3, p. 174.
Mr. Robinson’s account was substantiated in at least two significant areas.
First, Ms. Kimberling confirmed that Mr. Robinson had unknowingly left his
phone in her car.
Q. And later on, after this had all transpired, after you had talked to police, did you actually find the defendant’s phone somewhere?
A. Yes.
Q. And where was that?
A. Me and the officer found it in my car on the passenger side.
Q. And do you know how it had gotten there?
A. I assume that it fell out of his pocket on our ride to dinner.
CR Vol. 2, p. 74. And, second, Officer Hooton, one of the police officers who
responded to the 911 call, testified that Mr. Robison’s behavior was defensive, in
other words not something of which to be fearful:
Q. You referred several times to a term similar to or including a “defensive manner,” that Mr. Robinson was acting basically in a defensive manner.
Q. And sometimes you would include a word like “retreat” and use those as synonyms. Is that fair to say?
6 Q. So my question is, by using the term “defensive manner,” you mean that he was retreating from the situation and removing himself from the situation. Is that accurate?
CR Vol. 3, p. 84-85.
D. The Emergency Call
Ms. Kimberling eventually did decide to leave her house to use her
neighbor’s phone to call the police. Mr. Robinson did not prevent her from doing
so; in fact, he gathered his things and got into his truck to leave. She explained it
this way:
I was able to actually -- he wasn't paying attention to me anymore. I really think it was over, and he was trying to get his stuff, and I went out front and my neighbor was out front. I asked him to call the police.
CR Vol. 2, p. 68-69. The neighbor, Josh Johnson, testified about seeing Ms. Kimberling and then Mr. Robinson as follows:
A. [Ms. Kimberling] was like, please call 911, my boyfriend has gone crazy.
Q. Okay. So did -- did you end up calling 911?
A. I did. … Q. And when they were exchanging words, Rachel was in your front yard, or porch?
A. Yeah, she's pretty much on the front porch, if-- if you want to call it a front porch. There's a --kind of an extended concrete pad that runs the majority of the width of the house.
Q. And Mr. Robinson was in the driveway? Where was he?
7 A. There's not a driveway in the front of the house. He's -- he's on the curb.
Q. Near his truck? A. He's in his truck, in the driver’s seat.
Q. Okay. And then Ms. Kimberling . . . asks him, begs him, not to leave?
A. She's saying, you need to stop, please get out of the truck. Now, there were more things said. I don't know what was said, but that -- that is stuck in my mind.
CR Vol. 2, p. 40. This testimony shows that Ms. Kimberling was able to make an
emergency call. It further shows that Ms. Kimberling, who asked Mr. Robinson to
get out of his truck, was not scared of him.
STANDARD OF REVIEW
In assessing the legal sufficiency of the evidence to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);
Louis v. State, 393 S.W.3d 246, 249 (Tex.Crim.App.2012) (internal citations
omitted).
8 SUMMARY OF ARGUMENT
No rational trier of fact could have found Mr. Robinson guilty of
interference with an emergency call because the elements of that charge were not
proven in this case. Tex. Pen. Code § 42.062(a). Specifically, there was no
emergency, and there was no record evidence that Mr. Robinson knew or had
reason to know that he was preventing Ms. Kimberling from making an emergency
call. Because the elements of the charge were clearly not satisfied, no rational trier
of fact could have found Mr. Robinson guilty and, as a result, the conviction must
be overturned.
ARGUMENT
A. Elements of Interference with an Emergency Call
Interference with an emergency phone call is proscribed by Section
42.062(a) of the Texas Penal Code, which reads as follows:
(a) An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency telephone call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.
Tex. Pen. Code § 42.062(a). As the trial court stated, 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. CR Vol. 3, p. 209. “Emergency”
is defined as
9 (d) [A] condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.
Id. § 42.062(d). And finally, a reasonable belief is “a belief that would be held by
an ordinary and prudent man in the same circumstances as the actor.” Id. §
1.07(a)(42). Thus, in order to find Mr. Robinson guilty of this offense, the jury
must find the following:
1) Ms. Kimberling reasonably believed she was in fear of imminent assault; 2) Ms. Kimberling’s phone call was knowingly prevented or interfered with.
Here, the State did not prove these elements because the record does not show that
Ms. Kimberling reasonably believed she was in fear of imminent assault, that Mr.
Robinson had reason to know that Ms. Kimberling even could have been in fear of
imminent assault, or that Ms. Kimberling’s ability to make a phone call was
prevented or interfered with.
B. Ms. Kimberling Did Not Reasonably Believe That She Was In Fear Of Imminent Assault.
Even if one believes Ms. Kimberling’s unsupported testimony that Mr.
Robinson was attacking her, one cannot also believe that Ms. Kimberling was
actually trying to make an emergency call. This case is very similar to Matlock v.
State, No. 12–05–00413–CR, 2006 WL 2106951, at *2 (Tex.App.-Tyler July 31,
2006, no pet.) (mem. op., not designated for publication), where the Tyler Court of
10 Appeals considered whether there was legally sufficient evidence that an
interrupted call to 911 constituted an emergency call for purposes of Section
42.062(d). In that case, the defendant, who had entered living room of wife’s
apartment through a window, grabbed phone from wife’s hand after the 911
operator answered, and he pushed his wife away as she tried to reach for the phone.
Yet, the record contained no evidence that the wife, when she made the 911 call,
was afraid of her husband, or that she reasonably feared that she was in danger of
imminent assault. Tex. Pen. Code §§ 1.07(a)(42), 22.01(a), 42.062(a). Because
there was no proof of facts of circumstances from which one could infer that the
wife reasonably feared he would assault her, and no evidence that he had
threatened her, the court overturned the husband’s conviction. Matlock, at *2-3.
While Ms. Kimberling may have stated that she was scared of Mr. Robinson,
the record does not support that statement. Ms. Kimberling invited Mr. Robinson
to her house, she invited him to go to dinner with her, and she invited him to return
to her house and sleep with her. CR. Vol. 2, p. 61. After their argument began,
Mr. Robinson walked to the front of the house to leave. Instead of letting him
go—which a fearful person unquestionably would have done—she testified that
she followed him. CR. Vol. 2, p. 62. She admits that when he left the front room
to get away from her, instead of walking directly out of the house and to her
neighbors, she followed him toward the bedroom, where he was trying to hide.
11 (“He went back into the master bedroom, and I followed him back there . . . And I
was trying to fight to get into the bedroom.” CR Vol. 2, p. 62-63.) Furthermore, it
would not be reasonable to infer that she was trying to make an emergency call
because, as she testified, she repeatedly in the past had threatened to call the police
during their arguments, but they were only threats to get Mr. Robinson to leave—
not to report an emergency:
A. Like I said, anytime that we have fought in --in the past couple times, I've had to threaten to call the cops to get him to leave, and so I had it with me.
Q. So from the walk to (sic) the bedroom to the hallway, you didn’t dial 911 at that point?
A. No. ... Q. It was just still a threat?
A. And, yeah, it was a threat. It's always just been a threat to leave. It wasn’t my intention to actually have to need to call the cops, but it was a way to get him to leave.
CR Vol. 2, p. 62-63. Based on Ms. Kimberling’s own testimony, one must
conclude that she did not actually believe there was an emergency. Furthermore,
based on the testimony of the neutral neighbor, there is no basis to infer that Ms.
Kimberling was afraid:
Q. Okay. And then Ms. Kimberling . . . asks him, begs him, not to leave?
A. She's saying, you need to stop, please get out of the truck. Now, there were more things said. I don't know what was said, but that -- that is stuck in my mind.
12 CR Vol. 2, p. 40.
The Matlock court sustained the appellant husband’s sufficiency challenge
because there was no record evidence that the complainant wife was afraid of the
appellant or upon which one could infer that she reasonably feared he would
assault her. Matlock, at *2–3. In the case sub judice, the evidence militates even
more strongly in Mr. Robison’s favor: Ms. Kimberling’s own testimony and the
testimony of a neutral non-party establishes an undisputable lack of emergency.
The conviction of interference with an emergency call fails the legal sufficiency
test and must be overturned.
C. Mr. Robinson Did Not Know That He Was Preventing or Interfering With An Emergency Call.
Not only was there no record evidence on which the trier of fact could infer
that Ms. Kimberling was trying to make an emergency call, there is no evidence
that Mr. Robinson had reason to know that he was preventing or interfering with
Ms. Kimberling’s ability to make a phone call, let alone an emergency phone call.
This is because, for the same reasons that the trier of fact could not infer that Ms.
Kimberling was fearful, Mr. Robinson could not infer that Ms. Kimberling was
fearful. As stated above, Ms. Kimberling had made similar threats regarding
emergency calls in the past, and those threats were based on her desire to get him
out of the house, not her fear of him.
13 It is also because, as Officer Hooton attests, Mr. Robinson was acting
defensively while Ms. Kimberling was chasing him around.
Q. So my question is, by using the term “defensive manner,” you mean that he was retreating from the situation and removing himself from the situation. Is that accurate?
CR Vol. 3, p. 84-85. It is hard to imagine any circumstance wherein the “chaser”
would reasonably fear the “chasee.”
Finally, Mr. Robinson could not have known that he was preventing or
interfering with an emergency call because there was no actual prevention or
interference. Once Ms. Kimberling regained calm and levelheadedness, she was
able to simply walk out of the house and ask her neighbor to make a call. Ms.
Kimberling explained it this way:
I was able to actually -- he wasn't paying attention to me anymore. I really think it was over, and he was trying to get his stuff, and I went out front and my neighbor was out front. I asked him to call the police.
CR Vol. 2, p. 68-69.
PRAYER
For the foregoing reasons, the jury’s finding with respect to the charge of
Interference with an Emergency Call is legally insufficient, and Mr. Robinson
respectfully requests that this Court reverse and render.
14 Respectfully submitted,
________________________ Seth Kretzer Law Offices of Seth Kretzer 440 Louisiana Street; Suite 200 The Lyric Center Houston, TX 77002 (713) 775-3050 (Direct) seth@kretzerfirm.com (email)
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 3,364 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
____________________ Seth Kretzer
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Appellant Brief was served by First-Class Mail on the 14th day of September, 2015, to the following address:
Catherine Luft Assistant Criminal District Attorney 1450 East McKinney Denton, TX 76209
___________________ Seth Kretzer
15 NO. 02-15-00113-CR
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
ON APPEAL FROM COUNTY CRIMINAL COURT NO. 1, DENTON COUNTY, TEXAS THE HONORABLE JIM E. CROUCH PRESIDING
APPENDIX TO BRIEF OF APPELLANT
Seth Kretzer Law Offices of Seth Kretzer 440 Louisiana Street; Suite 200 Houston, TX 77002 Bar Number: 24043764 TABLE OF CONTENTS
Tab
Judgment of Community Supervision……………………………………………A
Texas Penal Code §1.07………………………………………………………….B
Texas Penal Code § 22.01………………………………………………………..C
Texas Penal Code § 42.062………………………………………………………D APPENDIX TO BRIEF OF APPELLANT TAB A APPENDIX TO BRIEF OF APPELLANT TAB B PENAL CODE TITLE 1. INTRODUCTORY PROVISIONS CHAPTER 1. GENERAL PROVISIONS
Sec. 1.07. DEFINITIONS. (a) In this code: (1) "Act" means a bodily movement, whether voluntary or involuntary, and includes speech. (2) "Actor" means a person whose criminal responsibility is in issue in a criminal action. Whenever the term "suspect" is used in this code, it means "actor." (3) "Agency" includes authority, board, bureau, commission, committee, council, department, district, division, and office. (4) "Alcoholic beverage" has the meaning assigned by Section 1.04, Alcoholic Beverage Code. (5) "Another" means a person other than the actor. (6) "Association" means a government or governmental subdivision or agency, trust, partnership, or two or more persons having a joint or common economic interest. (7) "Benefit" means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested. (8) "Bodily injury" means physical pain, illness, or any impairment of physical condition. (9) "Coercion" means a threat, however communicated: (A) to commit an offense; (B) to inflict bodily injury in the future on the person threatened or another; (C) to accuse a person of any offense; (D) to expose a person to hatred, contempt, or ridicule; (E) to harm the credit or business repute of any person; or (F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action. (10) "Conduct" means an act or omission and its accompanying mental state. (11) "Consent" means assent in fact, whether express or apparent. (12) "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code. (13) "Corporation" includes nonprofit corporations, professional associations created pursuant to statute, and joint stock companies. (14) "Correctional facility" means a place designated by law for the confinement of a person arrested for, charged with, or convicted of a criminal offense. The term includes: (A) a municipal or county jail; (B) a confinement facility operated by the Texas Department of Criminal Justice; (C) a confinement facility operated under contract with any division of the Texas Department of Criminal Justice; and (D) a community corrections facility operated by a community supervision and corrections department. (15) "Criminal negligence" is defined in Section 6.03 (Culpable Mental States). (16) "Dangerous drug" has the meaning assigned by Section 483.001, Health and Safety Code. (17) "Deadly weapon" means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. (18) "Drug" has the meaning assigned by Section 481.002, Health and Safety Code. (19) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if: (A) induced by force, threat, or fraud; (B) given by a person the actor knows is not legally authorized to act for the owner; (C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or (D) given solely to detect the commission of an offense. (20) "Electric generating plant" means a facility that generates electric energy for distribution to the public. (21) "Electric utility substation" means a facility used to switch or change voltage in connection with the transmission of electric energy for distribution to the public. (22) "Element of offense" means: (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense. (23) "Felony" means an offense so designated by law or punishable by death or confinement in a penitentiary. (24) "Government" means: (A) the state; (B) a county, municipality, or political subdivision of the state; or (C) any branch or agency of the state, a county, municipality, or political subdivision. (25) "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. (26) "Individual" means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth. (27) Repealed by Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.144, eff. September 1, 2009. (28) "Intentional" is defined in Section 6.03 (Culpable Mental States). (29) "Knowing" is defined in Section 6.03 (Culpable Mental States). (30) "Law" means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. (31) "Misdemeanor" means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail. (32) "Oath" includes affirmation. (33) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant. (34) "Omission" means failure to act. (35) "Owner" means a person who: (A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or (B) is a holder in due course of a negotiable instrument. (36) "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law. (37) "Penal institution" means a place designated by law for confinement of persons arrested for, charged with, or convicted of an offense. (38) "Person" means an individual, corporation, or association. (39) "Possession" means actual care, custody, control, or management. (40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. (41) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of government; (B) a juror or grand juror; or (C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or (D) an attorney at law or notary public when participating in the performance of a governmental function; or (E) a candidate for nomination or election to public office; or (F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so. (42) "Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. (43) "Reckless" is defined in Section 6.03 (Culpable Mental States). (44) "Rule" includes regulation. (45) "Secure correctional facility" means: (A) a municipal or county jail; or (B) a confinement facility operated by or under a contract with any division of the Texas Department of Criminal Justice. (46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. (46-a) "Sight order" means a written or electronic instruction to pay money that is authorized by the person giving the instruction and that is payable on demand or at a definite time by the person being instructed to pay. The term includes a check, an electronic debit, or an automatic bank draft. (46-b) "Federal special investigator" means a person described by Article 2.122, Code of Criminal Procedure. (47) "Swear" includes affirm. (48) "Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege. (49) "Death" includes, for an individual who is an unborn child, the failure to be born alive. (b) The definition of a term in this code applies to each grammatical variation of the term. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 1, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 2123, ch. 848, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1113, ch. 530, Sec. 1, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 1520, ch. 655, Sec. 1, eff. Sept. 1, 1979; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(43), eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 997, Sec. 1, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 543, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 822, Sec. 2.01, eff. Sept. 1, 2003. Amended by: Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.144, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 421 (H.B. 2031), Sec. 1, eff. September 1, 2009. Acts 2011, 82nd Leg., R.S., Ch. 839 (H.B. 3423), Sec. 1, eff. September 1, 2011. APPENDIX TO BRIEF OF APPELLANT TAB C PENAL CODE TITLE 5. OFFENSES AGAINST THE PERSON CHAPTER 22. ASSAULTIVE OFFENSES
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; 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. (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth; (3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person: (A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or (B) in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract; (4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or (5) a person the actor knows is emergency services personnel while the person is providing emergency services. (b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if: (1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; (2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and (3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. (c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is: (1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or (2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either: (A) while the participant is performing duties or responsibilities in the participant's capacity as a sports participant; or (B) in retaliation for or on account of the participant's performance of a duty or responsibility within the participant's capacity as a sports participant. (d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer or emergency services personnel. (e) In this section: (1) "Emergency services personnel" includes firefighters, emergency medical services personnel as defined by Section 773.003, Health and Safety Code, emergency room personnel, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations. (3) "Security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code. (4) "Sports participant" means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member. (f) For the purposes of Subsections (b)(2)(A) and (b-1)(2): (1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and (2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed. (g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, Sec. 12, 13, eff. July 22, 1977; Acts 1979, 66th Leg., p. 260, ch. 135, Sec. 1, 2, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 367, ch. 164, Sec. 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311, ch. 977, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 2.08, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 739, Sec. 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(23) to (26), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 334, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 366, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 27.01, eff. Sept. 1, 1997; Acts 1995, 74th Leg., ch. 318, Sec. 5, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 659, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 27.01, 31.01(68), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(a), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1158, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 294, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1019, Sec. 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1028, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 16.002, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 1, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 2, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 788 (S.B. 91), Sec. 6, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495), Sec. 1, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 623 (H.B. 495), Sec. 2, eff. September 1, 2007. Acts 2009, 81st Leg., R.S., Ch. 427 (H.B. 2066), Sec. 1, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 665 (H.B. 2240), Sec. 2, eff. September 1, 2009. Acts 2013, 83rd Leg., R.S., Ch. 875 (H.B. 705), Sec. 1, eff. September 1, 2013. APPENDIX TO BRIEF OF APPELLANT TAB D PENAL CODE TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES
Sec. 42.062. INTERFERENCE WITH EMERGENCY REQUEST FOR ASSISTANCE. (a) An individual commits an offense if the individual knowingly prevents or interferes with another individual's ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (b) An individual commits an offense if the individual recklessly renders unusable an electronic communications device, including a telephone, that would otherwise be used by another individual to place an emergency call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (c) An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if the actor has previously been convicted under this section. (d) In this section, "emergency" means a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction. Added by Acts 2001, 77th Leg., ch. 690, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 460, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1164, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2013, 83rd Leg., R.S., Ch. 331 (H.B. 1972), Sec. 7, eff. September 1, 2013. Acts 2013, 83rd Leg., R.S., Ch. 331 (H.B. 1972), Sec. 8, eff. September 1, 2013.