Pamela Ronalda Jacobs v. State ( 2007 )

NO. 07-06-0066-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 27, 2007 ______________________________

PAMELA RONALDA JACOBS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 43,762-C; HONORABLE PATRICK A. PIRTLE, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Pamela Ronalda Jacobs appeals the revocation of her community supervision and sentence of 10 years in the Institutional Division of the Texas Department of Criminal Justice and accompanying restitution. We will affirm the judgment and grant counsel's motion to withdraw.

Appellant was indicted for the offense of intoxicated assault with a vehicle. On April 25, 2002, appellant entered a plea of guilty to the offense. Appellant and her counsel acknowledged she received and reviewed written admonishments. Appellant further signed a judicial confession of her guilt to the offense as alleged in the indictment. Having determined that appellant was mentally competent, and that her actions in court were freely and voluntarily taken, the trial court accepted appellant's plea of guilty. In accordance with the negotiated plea bargain, the trial court sentenced appellant to ten years imprisonment suspended for ten years of community supervision and restitution.

In October 2003 and again in February 2004, the court continued appellant's community supervision but modified its terms after she pled true to allegations in motions the State filed to revoke it. The State filed an additional motion to revoke appellant's community supervision in September 2005, and an amended motion in November 2005.

On January 9, 2006, the State filed its Second Amended Motion to Revoke Order for Community Supervision. In its motion, the State alleged appellant failed to comply with the conditions of her community supervision, specifically alleging six separate violations. On January 27, 2006, appellant entered her plea of true to five of the six allegations in the Second Amended Motion. At the conclusion of the January 27, 2006 hearing, the trial court found appellant had violated the conditions of her community supervision and revoked it. The court ordered her to serve the original sentence imposed on her conviction.

Appellant's counsel has filed a brief stating that he has carefully reviewed the record in this case and concludes there is no reversible error and that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel has also filed a motion to withdraw in the case and, by letter, informed appellant of her right to file a pro se brief. Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet. ref'd). By letter dated July 10, 2006, this court also notified appellant of her opportunity to submit a response to the Anders brief and motion to withdraw filed by her counsel, granting her until August 9, 2006 to do so. This court's letter also reminded appellant to contact her counsel if she needed to review any part of the appellate record to prepare a response. Appellant has not filed a brief or other response.

We have independently examined the entire record in the case to determine whether there are any non-frivolous grounds which might support the appeal. ⁽¹⁾ See Penson v. Ohio, 488 U.S. 75 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. After reviewing the record before us and counsel's brief, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel's motion to withdraw is granted and the judgment is affirmed.

James T. Campbell

Justice

Do not publish.

1. Our review is limited, though, to any issues related to revocation of appellant's community supervision. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999).

ourt is obligated to instruct the jury on the matter. East v. State, 76 S.W.3d 736, 738 (Tex. App.-Waco 2002, no pet.); Gilmore v. State, 44 S.W.3d 92, 96-97 (Tex. App.-Beaumont 2001, pet. ref'd); Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.-Houston [1^st Dist.] 2000, pet. ref'd); accord, Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding that to raise the defense of necessity, the accused must admit that he committed the offense and then offer necessity as a justification).

Issue Three - Legal and Factual Sufficiency  

Through his last issue, appellant argues that the evidence was legally and factually insufficient to support his conviction. That is, he does not question whether the victim of his assault was a public servant. Instead, he questions whether he assaulted the victim as required by penal statute. We overrule the point.

The applicable standards of review are well-settled and adequately discussed in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000). We refer the litigants to those opinions for an explanation of the relevant standards.

Next, it is a felony to assault a person who the actor knows is a public servant while that person is lawfully discharging an official duty. Tex. Pen. Code Ann. §22.01(b)(1) (Vernon 2003). Furthermore, one commits an assault when he intentionally, knowingly, or recklessly causes bodily injury to another. Id. at §22.01(a)(1). Though the term "bodily injury" includes physical pain, illness, or any impairment of physical condition, id. at §1.07(a)(8), it should be construed rather broadly to encompasses even relatively minor physical contact, as long as that contact is more than mere offensive touching. Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.-Beaumont 1993, no pet.).   

Here, the State indicted appellant for assaulting Dustin Lee Aven by "grabbing him around the neck and putting him in a headlock." According to the record, Aven was performing his duties as a guard of the prison facility in which appellant was incarcerated. Furthermore, Aven testified that appellant 1) was belligerent and did not want to accompany him to another area of the facility when directed to do so, 2) stated that if Aven laid hands on him, he would "whoop his bitch ass," 3) doubled both fists, 4) pulled away from Aven and another officer, and 5) jerked away and placed Aven in a headlock after Aven tried to physically coerce appellant into complying with the directive. Other evidence illustrates that appellant's act resulted in Aven suffering a bruise or abrasion near his eye. From the foregoing, a rational jury could have found beyond reasonable doubt that appellant intentionally or knowingly caused Aven to suffer bodily injury. See Wawrykow v. State, 866 S.W.2d 87, 90 (Tex. App.-Beaumont 1993, pet. ref'd) (finding that the appellant's belligerent attitude and pushing the officer was legally sufficient evidence of an assault). Additionally, that appellant denied engaging in the act merely created an issue of fact for the jury to resolve. It could have chosen to believe appellant or Aven. That it chose to credit Aven's testimony does not render the verdict clearly wrong or manifestly unjust. In short, the evidence of guilt is neither legally nor factually insufficient to support the jury's verdict.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).