Vincent Henry Flowers v. State ( 2003 )

   11th Court of Appeals

Eastland, Texas

          Opinion

Vincent Henry Flowers                       

Appellant

Vs.       No. 11- 02-00338-CR B Appeal from Grayson County

State of Texas

Appellee

Vincent Henry Flowers waived a jury trial, and the trial court convicted appellant of felony assault on a public servant. TEX. PENAL CODE ANN. ' 22.01 (Vernon 2003).  The trial court assessed punishment of two years. TEX. PENAL CODE ANN ' 12.34 (Vernon 2003).  In two points of error, appellant challenges the legal and factual sufficiency of the evidence.  We affirm.

      Background Facts

Appellant had an outstanding arrest warrant for parole violation.  Detectives Brice Smith, Terry Dunn, and Jason Jeffcoat of the Sherman Police Department went to an apartment complex to execute the warrant.  Approaching the apartment in an unmarked police car, Detectives Smith and Dunn noticed appellant=s vehicle sitting in an adjacent parking lot.  As they pulled into the parking lot, appellant came running around a fence and collided with the hood of their unmarked police car. Detective Smith stepped from the car, advised appellant that he was a police officer, and ordered appellant to get on the ground.  Appellant turned and ran away from the officers.  Detective Smith apprehended appellant after a short chase, and a struggle ensued.  Detective Jeffcoat arrived, and a marked police car arrived shortly after the struggle ended.  After he was handcuffed and was being escorted to the marked police car, appellant kicked Detective Dunn in the shin.  Detective Dunn testified that it hurt and that the kick caused an inch and a half abrasion on his shin. Detective Jeffcoat testified that he saw appellant kick Detective Dunn.

Sufficiency of the Evidence

Appellant contends that the evidence is legally and factually insufficient to support his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

A person commits an assault against a public servant if he: (1) intentionally, knowingly, or recklessly causes bodily injury to another and (2) knows the person is a public servant who is lawfully discharging an official duty.  Section 22.01.  Bodily injury means physical pain, illness, or any impairment of physical condition.  TEX. PENAL CODE ANN ' 1.07(8) (Vernon 2003).

Detective Dunn and Detective Jeffcoat testified that appellant kicked Detective Dunn after appellant was handcuffed and was being led to a marked police car.  Detective Dunn also testified that it hurt when he was kicked and that the kick caused an abrasion.  The evidence is legally sufficient to support appellant=s conviction for assault on a public servant.

The evidence is also factually sufficient. While appellant testified that he did not kick Detective Dunn, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992). The fact finder may choose to believe or disbelieve all or any part of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.1986), cert. den=d, 488 U.S. 872 (1988).  We cannot say that the verdict is so greatly outweighed by the overwhelming weight of contrary evidence that the conviction is clearly wrong and manifestly unjust.  Appellant=s points are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 24, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.