Mario Dwayne Brown v. the State of Texas ( 2021 )

Opinion filed December 16, 2021
In The
Eleventh Court of Appeals
__________
No. 11-20-00033-CR
__________
MARIO DWAYNE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR52672
MEMORAND UM OPI NI ON
The jury found Appellant, Mario Dwayne Brown, guilty of the third-degree
felony offense of assault on a public servant. See TEX. PENAL CODE ANN.
§ 22.01(a)(1), (b)(1) (West Supp. 2021). Upon Appellant’s election, the trial court
assessed punishment. After it found the two enhancement paragraphs alleged in the
indictment to be true, the trial court sentenced Appellant to imprisonment in the
Institutional Division of the Texas Department of Criminal Justice for twenty-five
years. See id. § 12.42(d) (West 2019).
Appellant presents four issues on appeal. In his first issue, Appellant
challenges the sufficiency of the evidence to support his conviction. In his second
and third issues, Appellant challenges the trial court’s findings of true as to the two
enhancement allegations. In his fourth issue, Appellant asserts that the district clerk
improperly assessed court-appointed attorney’s fees against him. We modify and
affirm.
I. Factual Background
Appellant was indicted for assaulting Zachary McCammond, an officer with
the Midland Police Department. Officer McCammond was the only witness to
testify at Appellant’s trial.
On the night of Appellant’s arrest, Officer McCammond had been dispatched
to the scene of a vehicular accident that occurred in front of a Kent Kwik
convenience store in Midland. Law enforcement was still on scene, working to
impound the vehicles involved in the collision, when Officers McCammond and
Fulton were informed that two men were fist-fighting in the alley next to the Kent
Kwik. Both officers ran toward the alley, and Officer McCammond identified
himself as a police officer. Appellant and an unknown individual stepped away from
each other; Appellant then started to flee and Officer McCammond pursued him.
Seconds into the chase, Appellant tripped and fell, landing in a prone position on the
ground.
Officer McCammond kneeled down, straddling Appellant, and attempted to
handcuff him. He initially secured Appellant’s right arm behind Appellant’s back.
Appellant’s left arm was tucked underneath Appellant’s body on the ground. Officer
McCammond testified that, while he attempted to secure Appellant’s left arm,
Appellant’s right hand grabbed “at the crotch area of [Officer McCammond’s]
pants.” With his left hand, Appellant grabbed Officer McCammond’s fingers and
twisted them. Officer McCammond testified that Appellant “continued to twist” his
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fingers as he and other officers gave Appellant “verbal commands to stop.” In the
heat of the moment, Officer McCammond did not feel any physical pain in his
fingers. After Appellant was secured, Officer McCammond transported Appellant
to the Midland County Jail.
They arrived at the jail within ten minutes of the incident. Around that time,
Officer McCammond “realized that [his] fingers were aching pretty bad.” He felt a
“pretty constant sense of pain from [his] pinkie and [his] ring finger on [his] left
hand.” Officer McCammond testified that he did not take any photographs of his
hand because his injured fingers did not exhibit any visible abrasions or redness.
The State subsequently indicted Appellant for assault on a public servant; the
indictment also included two enhancement allegations.
II. Analysis
A. Sufficiency of the Evidence
In his first issue, Appellant contends that the evidence is insufficient to support
his conviction for the charged offense. Specifically, Appellant asserts that the State
failed to prove that Officer McCammond suffered any bodily injury.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 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 charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
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S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. We may not reevaluate the weight and
credibility of the evidence to substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Therefore, if the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the verdict, and we defer to that determination. Jackson, 443
U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012);
Clayton, 235 S.W.3d at 778.
Further, we treat direct and circumstantial evidence equally under this
standard. Isassi, 330 S.W.3d at 638; Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that the evidence
directly prove the defendant’s guilt; circumstantial evidence is as probative as direct
evidence in establishing a defendant’s guilt, and circumstantial evidence can alone
be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.
App. 2013) (citing Hooper, 214 S.W.3d at 13). Therefore, in evaluating the
sufficiency of the evidence, we must consider the cumulative force of all the
evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Each fact need not point directly
and independently to the defendant’s guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Finally, we measure the sufficiency of the evidence by the elements of the
charged offense as defined by the hypothetically correct jury charge for the case.
Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016); see also Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge
“accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of
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liability, and adequately describes the particular offense for which the defendant was
tried.” Malik, 953 S.W.2d at 240.
A person commits the offense of assault on a public servant if the person
“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, or in retaliation or on account of an exercise of official power or performance
of an official duty as a public servant.” PENAL § 22.01(a)(1), (b)(1). “Public
servant” is defined to include “a person elected, selected, appointed, employed, or
otherwise designated” as “an officer, employee, or agent of government.”
Id. § 1.07(a)(41)(A) (West 2021). An officer lawfully discharges an official duty
when he “is not criminally or tortiously abusing his office as a public servant.”
Hall v. State, 158 S.W.3d 470, 475 (Tex. Crim. App. 2005); Clark v. State, 461
S.W.3d 244, 248 (Tex. App.—Eastland 2015, pet. ref’d). Further, bodily injury
encompasses “even relatively minor physical contacts so long as they constitute
more than mere offensive touching.” Clark, 461 S.W.3d at 248 (quoting Lane v.
State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).
Here, the State adduced sufficient evidence to support the jury’s finding
that Appellant caused bodily injury to Officer McCammond. At trial, Officer
McCammond testified that Appellant twisted Officer McCammond’s left pinkie and
ring fingers. Audio from the officers’ body cameras recorded Officer McCammond’s
telling Appellant to “quit pinching,” and another officer can be heard ordering
Appellant to stop grabbing Officer McCammond’s genital area. Furthermore,
Officer McCammond testified that, within minutes of being assaulted by Appellant,
his fingers began “to stiffen up,” ache, and become painful to bend. Officer
McCammond explained that it became necessary for him to tape those two fingers
for a “couple days” after the assault.
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“Bodily injury” as defined includes physical pain. PENAL § 1.07(a)(8).
Although Appellant is correct that the injuries that Officer McCammond sustained
to his hand, either as the assault occurred or after the fact, cannot be seen on the
officers’ bodycam video footage, the video evidence does not controvert Officer
McCammond’s testimony. Based on the record before us, we hold that a rational
jury could have found beyond a reasonable doubt that Appellant assaulted Officer
McCammond as charged in the indictment. Therefore, because the evidence is
sufficient to support Appellant’s conviction, we overrule Appellant’s first issue on
appeal.
B. Enhancement Paragraphs
In his second and third issues, Appellant argues that the trial court erred when
it found the State’s enhancement allegations in the indictment to be true.
The indictment included two enhancement allegations. Enhancement
Paragraph I alleged that Appellant had been “finally convicted of the felony offense
of Burglary of a Habitation” in Ector County on December 9, 2008. Enhancement
Paragraph II alleged that Appellant had been “finally convicted of the felony offense
of Tampering with Physical Evidence” in Midland County on July 7, 2005.
Appellant pleaded not true to both enhancement allegations.
The State subsequently proffered two pen packets, which the trial court
admitted, in support of the enhancements. Both contained a copy of the respective
judgment of conviction, a photograph of Appellant, and a fingerprint card. As to the
prior conviction in Midland County, the judgment in the pen packet denoted
“destruction of evidence” as the offense for which Appellant was convicted on
July 7, 2005.
1. Enhancement Paragraph II—Variance
In his second issue, Appellant argues that because a variance existed between
the prior offense alleged in the enhancement—“Tampering with Physical Evidence”
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and the prior offense proved—“destruction of evidence”—the trial court erred when
it found Enhancement Paragraph II to be true. We disagree.
When a prior conviction to enhance punishment is alleged, the State is not
required to allege the prior conviction with the same particularity that must be used
when the primary offense is charged. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim.
App. 1986) (citing Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. 1981)). The
enhancement allegations should include and identify the court in which the
conviction was obtained, the date of the conviction, and the nature of the prior
offense. Cole, 611 S.W.2d at 80 (citing Hollins v. State, 571 S.W.2d 873, 876 (Tex.
Crim. App. 1978)); see also Freda, 704 S.W.2d at 43. A variance between an
allegation in the indictment and the proof of the prior conviction only constitutes a
“material” and “fatal” variance if it would mislead the defendant to his prejudice.
Freda, 704 S.W.2d at 42; Hall v. State, 619 S.W.2d 156, 157 (Tex. Crim. App. [Panel
Op.] 1980). Further, in order to challenge the sufficiency of an enhancement
allegation on appeal, the defendant must have asserted a proper motion to quash the
enhancement portion of the indictment in the trial court. Cole, 611 S.W.2d at 80(citing Teamer v. State, 557 S.W.2d 110, 112–13 (Tex. Crim. App. 1977); Prodon v.
State, 555 S.W.2d 451, 453 (Tex. Crim. App. 1977)).
Although a variance exists between the nature of the prior offense alleged in
Enhancement Paragraph II and the prior offense denoted in the judgment and for
which Appellant was convicted, the State did correctly allege in the enhancement
paragraph the date and cause number of the prior offense, the proper convicting court
for the prior offense, and the county where the convicting court is located. See, e.g.,
Freda, 704 S.W.2d at 43. Moreover, Appellant failed (1) to file a motion to quash
the indictment in the trial court on the ground that the enhancement allegation was
defective or (2) to object to the admission of the judgment based on prejudice or
surprise at the time the judgment was offered into evidence by the State. Based on
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the record before us, we hold that Appellant failed to establish that the variance
misled or surprised him to his prejudice. Accordingly, we overrule Appellant’s
second issue on appeal.
2. Enhancement Paragraphs I and II—Proof of Identity
In his third issue, Appellant further contends that the evidence was insufficient
to support the trial court’s findings of true for Enhancement Paragraph I and
Enhancement Paragraph II.
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex.
Crim. App. 2007). Although evidence of a certified copy of a final judgment of
conviction may be a preferred and convenient means, there is no specific document
or mode of proof through which the State must prove these two elements. Id. Rather,
the totality of the circumstances determines whether the State has met its burden of
proof on both elements. Id. at 922–23. The modes of proof that are available to the
State to establish both elements include (1) the defendant’s own admission or
stipulation, (2) testimony by a witness who was present when the defendant was
previously convicted of the specified crime and can identify the defendant, or (3) a
judgment or pen packet that contains sufficient information to show the defendant’s
identity, such as a photograph of the defendant. Id. at 921–22; see, e.g., Beck v. State,
719 S.W.2d 205, 209 (Tex. Crim. App. 1986); Littles v. State, 726 S.W.2d 26, 31–32
(Tex. Crim. App. 1984); Doby v. State, 454 S.W.2d 411, 413–14 (Tex. Crim. App.
1970).
When the State proffered the aforementioned pen packets, Appellant’s trial
counsel objected on the grounds that (1) the police report for the indicted offense
listed a different date of birth for Appellant and (2) the prior judgments of conviction
contained different spellings of Appellant’s middle name. On appeal, Appellant
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contends that because of these discrepancies, the State failed to sufficiently link
Appellant to either prior conviction. We disagree.
Both pen packets contained Appellant’s photograph, fingerprint card, and date
of birth—February 5, 1981. Appellant’s trial counsel proffered Officer
McCammond’s police report, which listed Appellant’s birth date as May 2, 1981.
Written numerically, Appellant’s birthdate is 02/05/1981. Here, Officer
McCammond likely made a transpositional error when he listed “05/02/1981” as
Appellant’s birthdate on the police report. Aside from the apparent misspelling of
Appellant’s middle name—“Dewayne”—on the 2008 judgment, the identifying
information concerning Appellant in Officer McCammond’s report matches and is
consistent with the other identifying information about Appellant as contained in the
admitted pen packets. Furthermore, the photographs in the pen packets establish that
the same person (Appellant) had been convicted of both offenses.
We hold that the State established that Appellant had been previously
convicted twice as alleged in the enhancements. Therefore, the trial court did not
err when it found the enhancement allegations to be true. Accordingly, we overrule
Appellant’s third issue on appeal.
C. Court-Appointed Attorney’s Fees
In his fourth issue, Appellant asserts, and the State agrees, that it was error to
assess court-appointed attorney’s fees against him because he remained indigent.
We review an assessment of court costs to determine if there is a basis for the
cost, not to determine if there was sufficient evidence offered at trial to prove each
cost. Smith v. State, 631 S.W.3d 484, 500–01 (Tex. App.—Eastland 2021, no pet.)
(citing Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)). An indigent
defendant cannot be taxed the cost of services rendered by his court-appointed
attorney unless the trial court finds that the defendant has the financial resources to
repay those costs in whole or in part. Id. at 501 (citing Mayer v. State, 309 S.W.3d
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552, 556 (Tex. Crim. App. 2010)); see TEX. CODE CRIM. PROC. ANN. art. 26.05(g)
(West. Supp. 2021). A defendant’s financial resources and ability to pay are explicit
elements that the trial court must consider in its determination of whether to order
the reimbursement of such costs and fees. Cates v. State, 402 S.W.3d 250, 251 (Tex.
Crim. App. 2013). As such, a defendant who has been determined by the trial court
to be indigent is presumed to remain indigent for the remainder of the proceedings
in the case unless a material change in the defendant’s financial resources occurs and
has been determined. CRIM. PROC. art. 26.05(g–1)(2); Cates, 402 S.W.3d at 251.
Here, because the trial court had determined that Appellant was indigent, trial
counsel was appointed to represent Appellant’s interest in all proceedings in the case.
Appellant also filed a motion for a free reporter’s record, which the trial court
granted. The district clerk subsequently submitted an amended bill of costs, which
assessed a $4,600 fee against Appellant for the services incurred by his court-
appointed trial counsel. Because nothing in the record indicates that (1) Appellant
is no longer indigent or (2) the trial court had made a subsequent determination that
Appellant’s circumstances had materially changed or that he had the financial
resources or ability to pay the court-appointed attorney’s fees that were assessed
against him, we hold that these costs were improperly assessed. See Cates, 402
S.W.3d at 252; Smith, 631 S.W.3d at 501.
When the trial court clerk erroneously includes fees as costs, we should
modify the bill of costs to remove the improperly assessed fees. Accordingly, we
sustain Appellant’s fourth issue and modify the trial court’s judgment and the district
clerk’s bill of costs to delete the $4,600 court-appointed attorney’s fees that were
assessed against Appellant.
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III. This Court’s Ruling
As modified, we affirm the judgment of the trial court. See TEX. R.
APP. P. 43.2(b).
W. STACY TROTTER
JUSTICE
December 16, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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