Robert Charles Thompson v. State ( 2014 )

AFFIRM; and Opinion Filed December 1, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01620-CR
ROBERT CHARLES THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80385-2012
MEMORANDUM OPINION
Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired 1
Opinion by Justice O’Neill
Appellant Robert Charles Thompson appeals his conviction for the offense of assault on a
public servant. He was found guilty after a bench trial and received a sentence of ten years’
confinement probated for four years. In two issues, appellant contends there was legally
insufficient evidence to support his conviction. We affirm the trial court’s judgment. Because
the issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On September 3, 2011, the manager of a Collin County bar contacted police regarding
problems with a patron. In response, Officer Michael Bogacki, on foot patrol, entered the bar
and observed appellant. Bogacki is employed by the City of Plano as a police officer. Bogacki
1
The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
observed that appellant had watery eyes and that appellant’s breath smelled of alcohol. Bouncers
at the bar told Bogacki that appellant had been asked to leave, but refused, and was
argumentative. One of the bouncers also observed what he believed to be use of cocaine by
appellant and his girlfriend. Bogacki believed that appellant might be committing the offense of
public intoxication. When appellant exited the bar to obtain his car from the valet area, Bogacki
detained appellant to investigate. Appellant refused to give Bogacki his driver’s license when
Bogacki requested it, and walked away. Another police officer instructed appellant to return to
Bogacki. Appellant was argumentative and demanded that Bogacki perform a field sobriety test.
Bogacki did so. He administered the horizontal gaze nystagmus test on appellant, which showed
six out of six clues of intoxication. Appellant refused to take the walk and turn test, and walked
away toward the valet. Bogacki then placed appellant under arrest for public intoxication.
Bogacki then attempted to place appellant in the back seat of a squad car. He opened the
rear side passenger door. Appellant refused to get into the car. Bogacki pushed appellant into
the car, and appellant continued to resist. Appellant refused to pull his legs into the car. When
Bogacki attempted to fasten appellant’s seat belt, appellant kicked Bogacki in the knee. Bogacki
testified that the kick was painful, and his knee “slightly hyperextended” or bent backwards.
Bogacki then grabbed appellant’s foot “and muscled it into the car and shut the door.”
Another City of Plano police officer, Chris Poligala, witnessed the kick. He was standing
on Bogacki’s left, toward the rear of the vehicle. When he witnessed the kick, Poligala pressed
the button on the car’s video recorder so that the previous ten seconds would be captured. He
explained that only the video, not the audio, would be activated. The audio would begin to
record ten seconds later. The video was admitted into evidence at trial. The camera was located
on the driver’s side of the car. Appellant was seated facing outward on the passenger side of the
car. Therefore only appellant’s back is visible on the recording.
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James Appleton testified as a witness for appellant. Appleton owns a video production
company and testified that he is a video and audio expert. He often works for federal and state
law enforcement performing video and audio surveillance analysis. Appleton testified that he
“had some real problems” with the video of appellant taken from the squad car. First, it would
have been possible to obtain a “full screen view” of appellant in the back seat of the car. Second,
there was no audio. Third, the video should have begun earlier, when Bogacki first attempted to
seat appellant in the car. Appleton testified that most systems would allow several minutes or at
least a full minute or to be captured when the button was pressed, rather than ten seconds.
Appleton also testified that he enhanced the video, and stated that in his opinion appellant did not
kick Bogacki: “There is no body language that is associated with that kick. There was no
moving back of the body. There was no extension of the knee.” The enhanced video “clearly
showed” that appellant’s leg was bent, not extended, at the time of the alleged kick. Appleton
also testified that in his opinion the video offered by the State had been altered because it was
“completely inconceivable” that the ten-second recording would begin exactly when Bogacki
said “You kicked me” to appellant.
The video identified by Poligala was admitted into evidence as State’s Exhibit 1. The
enhanced video identified by Appleton was admitted into evidence as Defense Exhibit 2. Both
videos were played for the trial court at the trial and are included in the appellate record.
STANDARD OF REVIEW
In reviewing the legal sufficiency of the evidence, we consider the evidence in the light
most favorable to the verdict to determine whether, based on that evidence and reasonable
inferences from that evidence, a rational finder of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Lucio
v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). Direct and circumstantial evidence are
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treated equally, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Because the fact finder is the sole judge of the
witnesses’ credibility and the weight to be given the evidence, the reviewing court defers to the
trier of fact’s resolution of any conflicts in testimony, weight of the evidence, and inferences
drawn. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
APPLICABLE LAW
A person commits assault on a public servant if he intentionally, knowingly, or recklessly
causes bodily injury to a person the actor knows is a public servant while the public servant is
lawfully discharging an official duty. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1)
(West Supp. 2014). Appellant does not challenge the State’s allegations that Bogacki was a
public servant lawfully discharging an official duty. His only contention is that the evidence is
insufficient to show that he caused bodily injury to Bogacki.
APPLICATION OF LAW TO FACTS
In his first issue, appellant argues that the evidence is insufficient to support the trial
court’s finding of guilty because “the State’s photos and videos clearly show that Appellant did
not commit the offense.” He argues that the trier of fact chose to believe the inconsistent
testimony of two police officers “over the irrefutable video and photographic evidence.” He
contends the evidence must be sufficient for a “rational” trier of fact to find all of the elements of
the offense beyond a reasonable doubt, and it was not rational for the trial court to believe the
police officers when their testimony was inconsistent and was refuted by the video evidence.
Appellant argues the police officers’ testimony is inconsistent about where Poligala was
standing. Poligala testified he was standing toward the rear of the vehicle, to Bogacki’s left,
while Bogacki testified Poligala was near the front door, which would have been to Bogacki’s
right. Appellant argues this is just one of the “material inconsistencies” in the officers’
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testimony. He urges, however, that the “best evidence of what occurred that evening” is in the
State’s own video, and pictures taken from the video. He contends that neither the video nor the
pictures show any “body language that is associated with a kick.” He argues the video shows his
leg was bent, not extended, and he was leaning forward, not back, when the kick allegedly
occurred. He compares the evidence to the hypothetical convenience store robbery described in
Brooks in which a witness identifies person A as the perpetrator, but surveillance video shows
that person B actually committed the offense. See Brooks, 323 S.W.3d at 907. He contends the
video shows he did not commit the offense, and concludes that the State failed to prove each of
the essential elements of assault on a public servant.
The State responds that two officers testified unequivocally that appellant kicked
Bogacki. The officers’ testimony was based on their presence and observations at the scene.
The video, filmed from behind appellant, shows appellant “moving and struggling,” but does not
show his legs at the moment of the kick. The video was not conclusive support for either the
officers’ or appellant’s version of events, and therefore the trial court was required to make its
finding of guilt or innocence based on the credibility of the witnesses.
Although Appleton testified there was no kick, his opinions were based on the limited
view of the video. And Appelton conceded that his expertise extended only to the technical
aspects of the recordings, and did not include any scientific knowledge of human movement.
His testimony about appellant’s movements, or lack of movement, was “common sense” that any
layperson including the trial judge would have. While the trial court could have accepted
Appleton’s interpretation of the video and pictures, and rejected the officers’ testimony, it did not
do so. The trial court was the exclusive judge of the credibility of the witnesses and the weight
to be given their testimony. See Brooks, 323 S.W.3d at 899. “[T]he evidence is not rendered
insufficient simply because appellant presented a different version of the events.” Temple v.
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State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013) (quoting Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993)); see also Castilla v. State, 374 S.W.3d 537, 540 (Tex. App.—San
Antonio 2012, pet. ref’d) (distinguishing Brooks hypothetical where video evidence did not
“conclusively disprove” but “merely called into question” eyewitness’s credibility). We
conclude there was legally sufficient evidence to support each element of the offense of assault
on a public servant. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1). We overrule
appellant’s first issue.
Because of our conclusion that the evidence was legally sufficient to support appellant’s
conviction for assault on a public servant, we need not address his second issue that in the
alternative he should be convicted of the lesser offense of resisting arrest. We affirm the trial
court’s judgment.
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131620F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT CHARLES THOMPSON, On Appeal from the 219th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 219-80385-2012.
No. 05-13-01620-CR V. Opinion delivered by Justice O’Neill; Justice
Fillmore and Chief Justice Thomas (Ret.),
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 1st day of December, 2014.
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