in the Matter of B. S. ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00148-CV
IN THE MATTER OF B. S.
On Appeal from the 98th District Court
Travis County, Texas
Trial Court No. JV 34724, Honorable Ami Larson, Presiding
November 17, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Through two issues, juvenile appellant B.S. challenges the sufficiency of the
evidence supporting the trial court’s judgment that he engaged in delinquent conduct by
committing the offense of harassment of a public servant. 1 Finding the evidence
sufficient, we will affirm the judgment of the trial court.
Background
While on patrol in a marked vehicle, a uniformed Austin police officer received a
dispatched call for assistance in locating J.M. a juvenile escapee from the county
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TEX. PENAL CODE ANN. § 22.11(a)(2) (West 2011).
juvenile detention center. The call came after J.M.’s mother reported seeing her son
within the past five minutes in the area of an apartment complex.
The officer spotted a juvenile he believed might be J.M. In fact, it was B.S. B.S.
refused to provide his name when the officer asked. The officer attempted to handcuff
and frisk B.S. As he placed his hand on B.S.’s arm, B.S. jerked away from the officer’s
grasp and attempted to pull away.
A second officer arrived and the two officers took B.S. to the ground. On the
ground, B.S. continued resisting and struggling. When a third officer arrived B.S. was
subdued, handcuffed, and frisked.
Officers noticed B.S.’s nose was bleeding. The first officer told B.S. he was
under arrest for resisting the search. B.S. responded with profanity and racial slurs
directed at the officer and other officers. A group of B.S.’s friends and apartment-
complex residents gathered at the location. With concern for officer safety, and
because EMS personnel will not respond to an unsecure location, officers placed B.S. in
a patrol vehicle and transported him about a half-block away to a youth center.
At the youth center, EMS personnel examined B.S. while the officer stood some
five to ten feet away. As the EMS evaluation concluded, B.S. looked directly at the
officer and spit saliva and blood onto the officer’s uniform, face, and arms. Afterward,
B.S. remarked, “Hoped you liked that, f - - - a - - cop.” The officer then went to a local
hospital for “blood-exposure precautions.”
The State filed a petition alleging B.S. engaged in delinquent conduct by
committing the offenses of harassment of a public servant and resisting arrest. At a
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contested adjudication hearing, tried to the bench, the court found the resisting-arrest
allegation not true but it found the harassment of a public servant charge true. At the
disposition hearing, the court placed B.S. under an order of probation.
Analysis
Through his first issue, B.S. argues the State’s evidence was legally insufficient
because the State failed to prove that the officer was lawfully discharging an official duty
at the time B.S. spit saliva on him.
When a juvenile appellant complains the evidence is insufficient to support the
adjudication of delinquency, an appellate court applies the criminal standard of review.
In re R.A., No. 03-11-00054-CV, 2012 Tex. App. LEXIS 5909, at *7 (Tex. App.—Austin
July 20, 2012, no pet.). In evaluating the sufficiency of the evidence supporting a
conviction, the reviewing court’s inquiry is “whether, after viewing the evidence in a light
most favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Garcia v. State, 367 S.W.3d 683,
686-87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979)). It is the role of the trier of fact to resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from that evidence.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318-19 (1979)). The trier of fact is the sole judge of the credibility of witnesses and the
weight, if any, to be given to their testimony. Garcia, 367 S.W.3d at 686-87; Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
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As alleged in the State’s petition, the elements of harassment of a public servant
are that B.S. “with the intent to assault, harass, or alarm [the officer], cause the said
[officer] (sic) [B.S.] knows to be a public servant to contact the blood and saliva of [B.S.]
while the said [officer] is lawfully discharging an official duty and in retaliation and on
account of an exercise of the said [officer’s] official power and performance of an official
duty.” TEX. PENAL CODE ANN. § 22.11(a)(2).
An officer lawfully discharges his duties if the officer is “acting within his capacity
as a peace officer.” Johnson v. State, 172 S.W.3d 6, 11 (Tex. App.—Austin 2005, pet.
refused) (quoting Guerra v. State, 771 S.W.2d 453, 461 (Tex. Crim. App. 1988); Hughes
v. State, 897 S.W.2d 285, 298 (Tex. Crim. App. 1994)). Determining whether an officer
acted within his capacity as a peace officer, we look to the details of the encounter,
including whether the officer was in uniform, on duty, and whether he was on regular
patrol at the time of the occurrence. Johnson, 172 S.W.3d at 11. An officer is lawfully
discharging his duties if he is not “criminally or tortiously abusing his office as a public
servant.” Id.; Hall v. State, 158 S.W.3d 470, 474-75 (Tex. Crim. App. 2005) (“the ‘lawful
discharge’ of official duties in this context means that the public servant is not criminally
or tortiously abusing his office as a public servant by acts of, for example, ‘official
oppression’ or ‘violations of the civil rights of a person in custody’ or the use of unlawful,
unjustified force”) (footnotes omitted)).
B.S. spends much of his argument under this issue analyzing the detention and
its rationale, and the officer’s use of force. He concludes the use of force was not
justified and “[t]he incident snowballed into an assault of [B.S.].” As such, he continues,
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actions of the officer were not a lawful discharge of official duty. We find no merit to this
assessment.
B.S. chose not to testify at the adjudication hearing and the trial court found the
officer’s testimony credible. The officer’s testimony and other evidence showed the
officer was in uniform in a marked patrol unit investigating a call from dispatch of an
escaped juvenile detainee in the area. Spotting B.S. the officer attempted to make
contact but B.S. refused to provide his name. B.S. resisted the officer’s attempt to
handcuff and frisk him. B.S. was subdued only after a second and third officer arrived.
In the occurrence, B.S. sustained a bloody nose. The officer then transported B.S. to
the parking lot of a youth center for emergency medical evaluation of B.S. As the EMS
worker concluded the examination, and while the officer stood beside his patrol vehicle,
B.S. spat blood and saliva on the officer. We find a reasonable trier of fact could have
found beyond a reasonable doubt that at the time B.S. spat on the officer, the officer
was lawfully discharging his official duty. See Hughes, 897 S.W.2d at 298 (“Whether or
not [a trooper’s] stop of [the defendant] was constitutionally reasonable is not relevant to
determining if [the trooper] was acting in the lawful discharge of his duties. . . . The
record reflects that [the trooper] was acting within his capacity as a peace officer at the
time of the offense. He was on duty, in uniform and patrolling Interstate 10 with his
partner when they heard and responded to the dispatcher’s report” (quotation marks
and citation omitted)); see also Guerra, 771 S.W.2d at 461 (similar analysis). B.S.’s first
issue is overruled
Through his second issue B.S. argues the State’s evidence was factually
insufficient to support his adjudication for harassment of a public servant because the
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State failed to prove that the officer was lawfully discharging an official duty at the time
B.S. spit saliva on him. Appellate courts are authorized to conduct a factual sufficiency
review only if the burden of proof is less than beyond a reasonable doubt. Moon v.
State, 451 S.W.3d 28, 45 (Tex. Crim. App. 2014) (citing In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). In a juvenile adjudication hearing, the State’s burden requires proof
beyond a reasonable doubt. Id. (citing TEX. FAM. CODE ANN. § 54.30(f)). Therefore,
under the criminal standard we apply for measuring the sufficiency of evidence
supporting a juvenile adjudication, the strength of the evidence is not gauged by a
separate factual sufficiency standard. In re R.A., 2012 Tex. App. LEXIS 5909, at *7 (“In
the criminal context, the factual-sufficiency standard has been eliminated, and the
Jackson v. Virginia legal-sufficiency standard is ‘the only standard that a reviewing court
should apply in determining whether the evidence is sufficient’”); In re A.O., 342 S.W.3d
236, 239 (Tex. App.—Amarillo 2011, pet. refused) (refusing in light of Brooks v. State, to
apply a factual sufficiency standard for reviewing a finding that a juvenile engaged in
delinquent conduct). B.S.’s second issue is overruled.
Conclusion
Having overruled B.S.’s two issues, we affirm the judgment of the trial court.
James T. Campbell
Justice
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