in the Matter of T.F. ( 2008 )

Opinion filed January 17, 2008

Opinion filed January 17, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00179-CV

                                                    __________

                                          IN THE MATTER OF T.F.

                                        On Appeal from the County Court at Law

                                                        Midland County, Texas

                                                     Trial Court Cause No. 5533

                                             M E M O R A N D U M   O P I N I O N

This is an appeal from a judgment adjudicating a juvenile of delinquent conduct. The jury found that T.F. engaged in delinquent conduct by committing an assault on a public servant.  The trial court committed T.F. to the Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first birthday.  T.F. challenges the sufficiency of the evidence to sustain his conviction.  Because we find that the evidence is legally and factually sufficient, we affirm.

                                                               Background Facts

T.F. was a ninth grade student at Midland Freshman^[1] and was assigned to the Midland Independent School District=s Alternative Education Program (AEP) for disciplinary reasons.  T.F. and a second student got into a fight in the AEP classroom one morning.  The AEP teacher, Chris Brian, called security.  MISD Police Officer Guadalupe Sanchez, MISD Security Officer James Callow, and Midland Freshman Assistant Principal Jay Leeper responded.  The adults began separating students.  Officer Callow secured T.F.  They struggled because T.F. attempted to continue fighting with the second student.  During this struggle, T.F. hit Officer Callow in the throat with a forearm or elbow.

                                                                         Issues

T.F. challenges his conviction with two issues.  T.F. contends that the evidence is legally insufficient because there was no evidence that Officer Callow was a public servant lawfully discharging an official duty.  T.F. also contends that the evidence is factually insufficient to establish that Officer Callow suffered bodily injury.

                                                              Standard of Review

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. Crim. App. 2000).  To determine if the evidence is factually sufficient, we review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then we determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11.

                                                                        Analysis

Was Officer Callow a Public Servant Discharging an Official Duty?

A person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another.  Tex. Penal Code Ann. ' 22.01(a) (Vernon Supp. 2007).  The offense level is enhanced if the assault is committed against Aa person the actor knows is a public servant while the public servant is lawfully discharging an official duty.@ Tex. Penal Code Ann. ' 22.01(b)(1) (Vernon Supp. 2007).  Public servants include officers, employees, or agents of government.  See Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (HISD police officer is a public servant).  T.F. argues that the State did not carry its burden because there was no evidence that Officer Callow was a public servant.  T.F. acknowledges that Officer Callow testified that he worked for MISD, but T.F. contends that the State was required to specifically prove that MISD was a governmental entity.

No witness testified that MISD stands for Midland Independent School District, but there was sufficient evidence that Officer Callow was a public servant and was struck by T.F. while discharging an official duty.  T.F. testified that he was a ninth grade student at Midland Freshman. Officer Callow testified that he is employed by MISD and that he works at Midland Freshman as a security officer.  His job duties include monitoring student welfare and breaking up fights on campus. Brian testified that he is the Midland Freshman AEP and interschool suspension teacher.  AEP is for students who are in trouble and need to be removed from a regular classroom.  Interschool suspension is for minor infractions such as excessive tardies.  T.F. was assigned to Brian=s AEP class.

When a student is placed in AEP or interschool suspension, his teachers send assignments to Brian.  He works with the students to make sure that they get their school work, and he tutors them as needed to help them maintain their grades.  T.F. and a second student had been having words for a couple of days. Brian sent T.F. to talk to a school counselor in hopes of avoiding conflict. When T.F. returned from counseling, he went to his desk, set down his school materials, and then walked to the second student=s desk.  The two started fighting, and Brian requested assistance on the radio frequency utilized by MISD police and security officers.  MISD Police Officer Sanchez and Security Officer Callow responded.  They were joined by Assistant Principal Leeper.  Officer Callow testified that T.F. struck him in the throat while Officer Callow was trying to stop the fight.

We believe that a rational juror would have known that MISD was the Midland Independent School District and that Midland Freshman was a public high school.  Also, a rational juror could have determined that T.F. was involved in a fight while at school, that a school security officer was required to assist T.F.=s teacher break up that fight, and that the officer was struck while doing so.  T.F.=s assignment to an AEP classroom is evidence that he was attending a public school.  The repeated references to Officer Sanchez as an MISD Police Officer is further evidence that MISD is a governmental entity.  The evidence is legally sufficient to establish that Officer Callow was a public servant discharging an official duty at the time of the altercation.  T.F.=s first issue is overruled.

Did Officer Callow Suffer Bodily Injury?

T.F. next argues that the evidence is factually insufficient because there was insufficient evidence that Officer Callow sustained bodily injury.  Tex. Penal Code Ann. ' 1.07(a)(8) (Vernon Supp. 2007) defines bodily injury as: Aphysical pain, illness, or any impairment of physical condition.@  T.F. admitted struggling with Officer Callow but denied striking him.  Officer Callow testified that, during their struggle, T.F. hit him in the throat.  Officer Callow did not feel anything at first, but after things calmed down, his neck was red and sore.  He compared it to a sore throat.

T.F. contends that more is required to establish bodily injury.  We note that Tex. Penal Code Ann. ' 1.07 (Vernon Supp. 2007) separately defines Abodily injury@ and Aserious bodily injury,@^[2] that Tex. Penal Code Ann. ' 22.01 (Vernon Supp. 2007) only requires proof of bodily injury, and that bodily injury includes physical pain.  Courts have held that this encompasses even relatively minor physical contacts so long as they are more than mere offensive touching.  See Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).  Officer Callow=s testimony that his neck was red and sore is evidence of physical pain and, thus, is evidence of bodily injury.

The jury=s verdict indicates that it believed Officer Callow and not T.F.  This decision is not against the great weight and preponderance of the evidence.  The extent of T.F. and Officer Callow=s struggle was confirmed by both Brian and Officer Sanchez.  Brian testified that T.F. strenuously resisted Officer Callow and that they broke a pole during their struggle.  Officer Sanchez testified that Officer Callow had his hands full because T.F. was not cooperating and was fighting with him.  The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982).  The jury may choose to believe all, some, or none of a witness=s testimony, Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), and is responsible for resolving any conflicts in the evidence.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  Because the jury=s decision reflects a resolution of conflicting evidence, the verdict is not based upon factually insufficient evidence.  T.F.=s second issue is overruled.

                                                                         Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

January 17, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

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     ^[1]The witnesses referred to the school as Midland Freshman.  The school=s assistant principal, Jay Leeper, testified that the school=s name is Midland Freshman High School.  We will refer to the school by its common name, Midland Freshman.

     ^[2]The statute defines serious bodily injury as Abodily 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.@  Section 1.07(a)(46).