Raul Robles Aguilar v. State ( 2006 )

Opinion issued July 13, 2006

Opinion issued July 13, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00140-CR

RAUL ROBLES AGUILAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 46,561

MEMORANDUM OPINION

          Appellant Raul Robles Aguilar pleaded not guilty to a charge of assault on a public servant.  A jury found him guilty and the trial court sentenced him to seven years’ imprisonment.  In one issue, Aguilar contends the trial court erred in failing to charge the jury on a lesser included offense of resisting arrest.  We conclude that the trial court did not abuse its discretion and therefore affirm.

Facts

          In February 2004, Clute Police Department Officer Carlton observed Aguilar standing at the entrance of the Olde Oaks Apartments.  Carlton recognized Aguilar because Carlton was present two days earlier when another officer, Officer Harris, had cited Aguilar with a criminal trespass warning to stay off the property.  Aguilar’s spouse or ex-spouse lived in one of the apartments in the building.  She had reported that Aguilar had been following her while she took the children to school and would attempt to stop her from returning to her apartment, resulting in verbal confrontations.

          Officer Carlton approached Aguilar in the apartment parking lot and asked him to disclose the purpose of his presence. Aguilar stated that he was waiting there to watch his children leave for school.  Carlton asked Aguilar to leave, but he refused to do so.  Carlton asked again and Aguilar continued to refuse.  Carlton then warned Aguilar that if he refused to leave, he would arrest him.  Aguilar verbally refused.  Carlton then exited his patrol car and stated, “You are under arrest.”

          Carlton asked Aguilar to place his hands on the patrol car.  Aguilar refused.  Carlton attempted to grab Aguilar’s arm, and Aguilar took a swing at him.  After Aguilar swung at Carlton a second time, Carlton used pepper spray in an attempt to subdue him.  Shortly thereafter, Officer Harris arrived in another patrol vehicle.  Aguilar had been pepper sprayed, but his eyes were open.  Aguilar ran toward Harris.  Officer Harris grabbed Aguilar, and Aguilar responded by hitting Harris with “full contact punches” twice on the left side of his face.  In Carlton’s opinion, Aguilar intentionally hit Harris.  A struggle ensued, and Aguilar at one point held Harris in a headlock.  Harris told Carlton that Aguilar was choking him.  Carlton pulled Aguilar away from Harris and handcuffed him.  Carlton observed red marks on Harris’s face and around his neck.  A third officer, Belinda Rickman, arrived on the scene.  She arrived while Carlton was attempting to handcuff Aguilar.  She did not witness the assault on Harris.  After the incident, the shift lieutenant sent Harris home for the day.  The next day, Harris sought emergency room treatment for a hand injury and headaches. Harris testified that the punches “rang my bell.”

          Aguilar testified on his own behalf.  He acknowledged standing outside the apartment complex, but was three meters outside the line the police officers had told him that he could not cross in connection with the earlier criminal trespass warnings.  He denied Carlton’s version of the events, stating that he told Carlton that he wanted to take his children to school and that he was outside apartment property.  He stated that he moved when Carlton asked him to do so, but Carlton nonetheless used pepper spray on him.  He denied swinging at Carlton and punching Harris, and said that he was merely trying to “get them off of me like that.”  He stated that the officers punched at him and he tried to defend himself, whereupon all of them fell into a ditch. He denied holding Harris in a headlock. He also denied knowing that he was under arrest, but admitted that he refused to place his hands on the patrol car when Carlton asked him to do so.  Aguilar admitted that “in the movements, in trying to attempt to move, get them off of me, I could have hit them possibly.”  He conceded that he was “reckless” and should not have acted the way he did toward police officers.  He also testified that he could not see for thirty minutes due to the pepper spray.

Lesser Included Offense

In his sole issue, Aguilar contends that the trial court should have instructed the jury as to the lesser included offense of resisting arrest.  The State responds that the trial court correctly denied the request because no evidence exists from which a jury could rationally conclude that Aguilar was guilty only of the lesser included offense. 

Applicable Law

A trial court may instruct the jury on a lesser included offense if (1) the offense in question is a lesser included offense under article 37.09 of the Texas Code of Criminal Procedure and (2) some evidence is presented that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty of the lesser included offense.  Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). This two-prong test is usually known as the Royster test, after the case in which the test was first stated in that exact form.  See Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981).  Under article 37.09(1), an offense constitutes a lesser offense of the offense charged if it is established by proof of the same or less than all the facts that establish the commission of the offense charged.  Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981).  Here, the State does not contest that resisting arrest can be a lesser included offense of assault on a public servant.

In determining whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty only of the lesser included offense, anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.  Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).  We review all evidence introduced at trial to determine whether the trial court erred in failing to instruct the jury on a lesser included offense.  Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000); Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994).  Because the question is one of whether the evidence merely raises the issue, credibility determinations and conflicts in the evidence are not factors to consider in determining whether the trial court erred in failing to instruct the jury on a lesser included offense.  Banda, 890 S.W.2d at 60.  If, however, a defendant presents evidence that he committed no offense at all and no evidence otherwise raises an issue that he is guilty of only the lesser included offense, then the trial court does not err in refusing to submit the lesser included offense to the jury.  Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).

Analysis

A person commits an assault on a public servant by “intentionally, knowingly, or recklessly caus[ing] bodily injury to . . . a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.”  Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp. 2005).  A person resists arrest if he “intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.”  Id. § 38.03(a) (Vernon 2003). 

In his brief, Aguilar contends the evidence raises an issue of resisting arrest because, while suffering the effects of the pepper spray, Aguilar could not have even recklessly struck Harris because Aguilar could not see Harris and did not know where “Harris was standing in relation to himself.” Aguilar thus contends that a lesser included offense instruction regarding resisting arrest was appropriate because he produced some evidence negating any intent to recklessly cause bodily injury.

 The State concedes that Aguilar denied punching Harris, but refers us to Aguilar’s other testimony, in which he acknowledged that he “could have” done so with an open hand in trying to “get them off of me.”  The State contends that Aguilar’s testimony fails to raise an issue as to resisting arrest because it is an offense that requires intentional conduct that prevents the officer from effecting an arrest, whereas assault on a public servant can be proved with evidence that the defendant acted with mere recklessness, and since resisting arrest requires an intentional act, Aguilar’s testimony does not raise the issue of resisting arrest.

Here, however, the issue is not whether Aguilar failed to raise an issue as to his state of mind because resisting arrest requires at least as high a level of intent as assault on a public servant.  Rather, as the Court of Criminal Appeals explained in Lofton v. State, the issue is whether Aguilar fairly raised the issue of resisting arrest when the evidence is that his acts—if the jury believed them to have occurred, and further believed that he intended them or committed them either knowingly or recklessly—caused bodily injury.  45 S.W.3d at 651–52.  In Lofton, a jury convicted the defendant of assault on a public servant. Id. at 649.  At trial, the defendant testified, denying that he struck the officer and further denying that he resisted arrest.  Id. at 651.  On appeal, the defendant maintained that the trial court should have submitted resisting arrest as a lesser included offense.  Id. at 650.  The Court of Criminal Appeals held that the evidence in the record did not raise a lesser included offense of resisting arrest because the evidence raised an issue as to whether the defendant caused the officer to sustain bodily injury, not merely an issue as to whether the defendant engaged in conduct that constituted resisting arrest.  Id. at 652.  As the court observed,

[e]ven if appellant had intended only to prevent his arrest, the force used by appellant against [the officer], at the very least, recklessly caused [the officer] to suffer a bodily injury.  Regardless of appellant’s intent, the State proved that appellant assaulted [the officer]. Resisting arrest was not a rational alternative to assault on a public servant in the instant case.

Id.

Similarly, in this case, the indictment alleged that Aguilar caused bodily injury to Harris “by striking S. Harris with the defendant’s hand,” knowing that he was a public servant discharging an official duty.  Aguilar denies punching Harris and resisting arrest, but admits that he “could have” hit him due to the effects of the pepper spray. This testimony, though it raises an issue as to Aguilar’s intent—whether the alleged conduct was intentional, reckless, or completely unintentional—it does not raise an issue as to whether the force Aguilar used caused Harris to suffer bodily injury.  See id.  Applying Lofton, we hold that the trial court did not err in refusing to submit the lesser included offense of resisting arrest.  Id.; see also Oiler v. State, 77 S.W.3d 849, 852 (Tex. App.—Corpus Christi 2002, pet. ref’d) (applying Lofton and holding that, even if defendant by his actions intended to prevent his arrest, such intent does not negate evidence that his method of doing so was to assault arresting officer).

Moreover, Aguilar is not entitled to a lesser included offense based on conduct other than striking Harris because the State did not allege any other conduct as a basis for the charges as alleged in the indictment.  See Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App. 2005).  In Irving, the State charged the defendant with aggravated assault.  Id. at 845.  The defendant contended that evidence that he grabbed the complainant and fell on top of her during the same transaction in which the State accused him of hitting the complainant with a baseball bat raised a lesser included offense of simple assault.  Id. at 845–46.  The Court of Criminal Appeals concluded that the evidence as presented did not entitle the defendant to a jury charge on the lesser included offense because the conduct establishing the lesser offense was “not ‘included’ within the conduct charged; i.e. within the facts required to prove the charged offense.”  Id. at 846.  Here, the State relied solely upon Aguilar’s conduct in striking Harris with his hand.  Thus, evidence of other conduct that arose during the incident did not require that the trial judge charge the jury as to the offense of resisting arrest.

Conclusion

We hold the trial court did not err in denying a request to charge the jury on the lesser included offense of resisting arrest.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).