Spillman, David Earl Jr. ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0695-20, PD-0696-20, PD-0697-20
DAVID EARL SPILLMAN, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
HUNT COUNTY
WALKER, J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, NEWELL, SLAUGHTER and MCCLURE, JJ., joined. KELLER, P.J., and
YEARY and KEEL, JJ., concurred in the result.
OPINION
After a jury trial, Appellant David Earl Spillman, Jr. was convicted of two counts of assault
of a public servant and one count of possession of methamphetamine. The court of appeals affirmed.
We granted Appellant’s petition for discretionary review to determine whether the evidence is
sufficient to support his assault of a public servant convictions. Because the evidence could enable
a rational jury to conclude beyond a reasonable doubt that Appellant committed assault of a public
servant, we affirm.1
I. Background
At around 9:45 PM on August 12, 2016, Officer William Carper pulled Appellant over for
a routine traffic stop in Hunt County, Texas. Carper smelled burnt marijuana coming from
Appellant’s vehicle and requested backup. Officer Kendall Reeves responded. Upon Carper’s
request, Appellant exited the car and allowed Carper to pat him down. Carper searched the car and
found marijuana remnants and an unlabeled pill bottle.
After inspecting the vehicle, Carper searched Appellant again. When Carper asked Appellant
to remove his shoes, Appellant removed his left shoe by sliding the heel off and putting his fingers
in the shoe while balancing on one leg. Carper grabbed Appellant’s arm to see what he was doing
because he had never seen anyone remove their shoe in that manner. According to Carper, Appellant
then “immediately began resisting”2 by tensing his arm, putting his foot down, and moving his hand
(set in a clenched fist) up and forward above Carper’s head.
Carper then escalated his use of force as he was trained to do. He seized Appellant, and
Reeves began to assist. According to Carper’s testimony, Appellant had “ahold” of Carper and was
“pulling and jerking.”3 Reeves pushed against the pair, and Appellant was “trying to go between”
1
While it appears we granted review on all three of Appellant’s convictions, his petition for
discretionary review did not include any grounds for review of the possession charge (PD-0697-20).
We see no error with the possession charge, it was not brought before us, and neither party discussed
the charge in their briefs. Thus, we decline to address it.
2
Rep. R. vol. 8, 44.
3
Rep. R. vol. 8, 52.
2
the officers.4 Carper maintained his grip on Appellant and planted his outside leg. Carper then felt
pain, popping, and grinding in his leg and fell to one knee. Reeves performed a “hip throw” on
Appellant, forcing both Appellant and Reeves to the ground. Reeves scraped his elbow, drawing
blood. About ten seconds elapsed from the time Appellant took off his shoe to the time he and
Reeves fell.
Appellant was arrested. The officers discovered that he had been holding a clear bag
containing methamphetamine in his clenched fist. Appellant claimed he was trying to give Carper
the bag when Carper grabbed him. He also claimed he did not grab Carper. Carper’s leg began
swelling shortly after the incident. A doctor later determined that Carper tore his anterior cruciate
ligament (ACL) in the altercation.
Appellant was charged with two counts of assault of a public servant and one count of
possession of methamphetamine. At trial, the State showed two videos. Most of the action that
forms the basis for Appellant’s convictions occurred off camera. Accordingly, the testimony of the
involved officers was heavily relied on throughout the trial. Carper demonstrated the “fight” at trial.
As the State points out, the record fails to “capture exactly what Carper was showing the jury[.]”5
The jury received an instruction on resisting arrest;6 however, they found Appellant guilty
of the two counts of assaulting a public servant and the possession count. Appellant pled true to
enhancements and was sentenced to fifty years confinement for each assault charge and sixty years
4
Rep. R. vol. 8, 53.
5
State’s Br. 9.
6
Appellant argues that the trial court erroneously categorized resisting arrest as a lesser-
included offense of assault of a public servant. Because we find the evidence sufficient to uphold the
assault convictions, we do not reach this issue.
3
for the possession charge, to run concurrently. On appeal, Appellant argued the evidence was
insufficient to support his assault convictions. Spillman v. State, No. 05-19-00530-CR, 2020 WL
4013142, at *1 (Tex. App.—Dallas July 16, 2020) (mem. op., not designated for publication).
Specifically, he argued: (1) the prosecution failed to show he had the requisite mental state for
assault of a public servant; and (2) it was the officers’ own actions—not his—that caused their
injuries. Id. at *2, 3. The appellate court disagreed and found that Appellant, by “struggling” with
the officers, “disregarded a substantial risk” of bodily injury to Reeves and Carper—even if his only
intent was to “conceal evidence and prevent his arrest[.]” Id. at *3.
Appellant filed a pro se petition for discretionary review in which he asserted that the
evidence was insufficient to support his convictions for assault of a public servant. Appellant’s
petition essentially argued that he did not use any force against either officer (such as hitting or
kicking), and the officers caused their own injuries. We granted review to determine whether the
evidence was sufficient to uphold Appellant’s assault convictions.
II. Discussion
We review the sufficiency of the evidence supporting Appellant’s convictions under the
Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(referencing Jackson v. Virginia, 443 U.S. 307 (1979)). Under this standard, reviewing courts
“‘consider all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.’” Alfaro-Jimenez v. State, 577 S.W.3d 240,
243–44 (Tex. Crim. App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007)); Jackson, 443 U.S. at 319. “[T]he jury is the ‘sole judge’ of witnesses’ credibility and the
4
weight to be given testimony.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021)
(quoting Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012)). As the reviewing court,
we defer to the jury in undertaking their responsibility to “‘fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Hooper, 214 S.W.3d at 13). The
Court balances this deference to the jury with our duty to ensure the evidence “actually supports a
conclusion that the defendant committed the crime that was charged.” Williams, 235 S.W.3d at 750.
We resolve evidentiary inconsistencies in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000).
To measure the sufficiency of the evidence, the reviewing court compares the evidence
produced at trial to “the elements of the offense as defined by the hypothetically correct jury charge
for the case.” 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
liability, and adequately describes the particular offense for which the defendant was tried.” Id. The
law authorized by the indictment consists of the offense’s statutory elements as modified by the
indictment. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011).
The indictments here alleged Appellant committed assault of a public servant by
intentionally, knowingly, or recklessly causing bodily injury to Carper and Reeves while they were
lawfully discharging their official duties. The jury charges correctly tracked this language. Appellant
challenges the mens rea and causation elements of the offenses.
One commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to
5
another[.]” TEX. PENAL CODE Ann. § 22.01(a)(1). If the individual assaults one “the actor knows
is a public servant while the public servant is lawfully discharging an official duty,” it is assault of
a public servant—a third-degree felony. Id. § 22.01(b)(1). The State put forth no evidence or
argument that Appellant acted intentionally or knowingly. The mens rea at issue is recklessness.
“A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when
he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will
occur.” Id. § 6.03(c). “The risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.” Id.
Further, Appellant must be criminally responsible for the officers’ bodily injuries for his
convictions to stand. “A person is criminally responsible if the result would not have occurred but
for his conduct, operating either alone or concurrently with another cause, unless the concurrent
cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”
Id. § 6.04(a). Appellant “must be a direct cause” of the officers’ injuries, but he does not have to
be the sole cause. Williams, 235 S.W.3d at 755.
a. Appellant Acted Recklessly.
Appellant argues the evidence is insufficient to show that he possessed the requisite
recklessness mens rea. The State argues that recklessness depends on whether Appellant “could
clearly see [what] [sic] might happen[.]”7 The State’s argument appears to conflate recklessness
with foreseeability, and we caution that this is not the proper standard for recklessness.
Nevertheless, a rational juror could have found the element of recklessness beyond a reasonable
7
State’s Br. 12.
6
doubt as judged by the sufficiency standard. See Alfaro-Jimenez, 577 S.W.3d at 244.
“Bodily-injury assault is a result-oriented offense.” Simms v. State, 629 S.W.3d 218, 223
(Tex. Crim. App. 2021). For Appellant to have been reckless, he must have been aware of a risk
that his actions could result in Carper and Reeves being injured and consciously disregarded the risk
of injury. See TEX. PENAL CODE Ann. § 6.03(c). Disregarding this risk must be a gross deviation
from the care an ordinary person would exercise in Appellant’s circumstances. Id. At trial, there was
evidence that Appellant did the following:
• Tensed when Carper grabbed his arm and “immediately began resisting”;8
• Jerked his hand in a clenched fist forward and above Carper’s head;
• Grabbed Carper;
• Pulled and jerked Carper;
• Attempted to bring his arm up and over Carper’s shoulder; and
• Tried to “go between” Reeves and Carper.9
While Carper contradicted himself by first testifying that Appellant grabbed him and later saying
Appellant did not grab him, Reeves testified that he saw Appellant grab Carper—corroborating
Carper’s initial testimony.
A rational jury could find that by grabbing and pulling Carper—with Reeves pushing the
pair—Appellant was aware of and disregarded a substantial and unjustifiable risk that he could hurt
the officers.10 Recklessness does not require Appellant to consciously disregard the risk of specific
injury to the officers. Rather, recklessness requires the result of a bodily injury in general to be
8
Rep. R. vol. 8, 44.
9
Rep. R. vol. 8, 53.
10
The required result in this assault case is bodily injury. TEX. PENAL CODE Ann. §
22.01(a)(1). Bodily injury can include any physical pain. Id. § 1.07(a)(8).
7
consciously disregarded. See Simms, 629 S.W.3d at 223 (requiring appellant to have culpable
mental state with respect to result of causing bodily injury in bodily-injury assault cases); In re
K.W.G., 953 S.W.2d 483, 487 (Tex. App.—Texarkana 1997, pet. denied) (“Knowledge and
disregard of a risk to a specific person or a specific kind of risk is not required.”); Thomas v. State,
303 S.W.3d 331, 333 (Tex. App.—El Paso 2009, no pet.) (“The manner and means of the bodily
injury alleged is not an essential element” of assault.). Appellant and the officers were on the side
of the road at night, and a rational jury could find that an ordinary person in the same circumstances
would not continue to resist arrest and would not “pull and jerk” or try to go between officers while
they are attempting to restrain him.11
The jury heard, on video, Appellant claim that he was trying to give Carper the bag in his
hand. They also heard him say that he did not grab Carper. However, there is evidence to the
contrary, and it is within the purview of the jury to resolve inconsistencies in the evidence. See
Williams, 235 S.W.3d at 750; Curry, 30 S.W.3d at 406. Carper and Reeves testified to Appellant’s
actions, and the jury was free to believe them. The video evidence does not contradict their
testimony. Cf. Brooks, 323 S.W.3d at 906–07 (finding of guilt would not be rational where video
evidence clearly showing defendant’s innocence contradicts witness testimony showing defendant’s
guilt). Under these circumstances, a rational jury could find Appellant’s actions to be reckless.
b. Appellant Caused the Bodily Injury.
Appellant also argues that the evidence is insufficient to show he caused Carper’s and
Reeves’s injuries. As mentioned above, the relevant test for criminal responsibility, or causation,
is contained in Texas Penal Code § 6.04(a): “A person is criminally responsible if the result would
11
See Rep. R. vol. 8, 52.
8
not have occurred but for his conduct, operating either alone or concurrently with another cause,
unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor
clearly insufficient.” There must be “a ‘but for’ causal connection . . . between the defendant’s
conduct and the resulting harm.” Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986);
TEX. PENAL CODE Ann. § 6.04(a). If there are concurrent causes, the but-for requirement can be
satisfied if 1) the defendant’s conduct alone was clearly sufficient to cause the harm; or 2) the
defendant’s conduct and the other cause together were sufficient to cause the harm. Robbins, 717
S.W.2d at 351. However, if the other cause alone was clearly sufficient to cause the resulting harm,
and the defendant’s conduct by itself was clearly insufficient to cause the resulting harm, the
defendant is not criminally responsible. Id.; TEX. PENAL CODE Ann. § 6.04(a).
Appellant argues that Carper’s and Reeves’s actions were the cause of their injuries. He
posits that his conduct could not have caused their injuries—meaning he cannot be considered
criminally responsible. We disagree.
While Appellant’s conduct alone may not have been sufficient to cause Reeves’s and
Carper’s injuries, neither can the officers’ actions alone be considered sufficient to cause the
resulting harm. Carper’s and Reeves’s actions cannot be characterized as “alone” because they were
acting in response to Appellant’s conduct. We cannot isolate the officers’ actions and view them
as a wholly independent cause of their injuries—they would not have responded in the manner they
did had it not been for Appellant’s conduct12 in reacting to Carper’s search.
Because Appellant’s conduct and the officers’ conduct together caused the harm, the but-for
12
Namely, tensing up, jerking his hand in a clenched fist forward and above Carper’s head,
grabbing Carper, pulling and jerking Carper, attempting to bring his arm up and over Carper’s
shoulder, and trying to go between Reeves and Carper.
9
causation requirement is satisfied. See Robbins, 717 S.W.2d at 351 (“If concurrent causes are
present . . . the defendant’s conduct and the other cause together may be sufficient to have caused
the harm.”). Appellant’s actions, when considered in conjunction with Carper’s and Reeves’s
actions, were sufficient to have caused the officers’ injuries.
c. Appellant Committed a Voluntary Act.
Nonetheless, a determination that Appellant’s actions were a but-for cause of the officers’
injuries does not settle the matter. Criminal offenses require voluntary acts. TEX. PENAL CODE Ann.
§ 6.01(a). “A person commits an offense only if he voluntarily engages in conduct, including an act,
an omission, or possession.” Id.
Concern has been expressed that “any minor scuffle during an arrest will result in a
defendant being charged solely with assault on a public servant.” Oiler v. State, 77 S.W.3d 849, 853
(Tex. App—Corpus Christi–Edinburg 2002, pet. ref’d); see also Morales v. State, 293 S.W.3d 901,
908 (Tex. App.—Texarkana 2009, pet. ref’d) (citing Oiler, 77 S.W.3d at 852–53 and noting that
“there appears the real possibility that, in some cases, it would be impossible to distinguish between
resisting arrest and assaulting an officer who is attempting an arrest.”). However, this is not the
case.
Mere resistance to an officer’s contact, detention, search, or arrest cannot be considered
assault of a public servant without more. Injuries to officers that occur while they are performing
their law enforcement duties can be the result of non-voluntary and accidental forces. This can be
true even if the resulting injuries would not have occurred but for a suspect’s actions. For assault
on a public servant to occur, the defendant must have been a but-for cause of an officer’s injuries,
and his actions that are considered the but-for cause of the injury must have been performed
10
voluntarily. Physical movements that are the nonvolitional result of someone else’s act or that are
set in motion by an independent non-human force, physical reflex, convulsion, unconscious act, act
under hypnosis, and other “nonvolitional impetus” are not voluntary acts. Whatley v. State, 445
S.W.3d 159, 166 (Tex. Crim. App. 2014); Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App.
2003).
In this case, the jury heard evidence that after Carper grabbed Appellant’s arm, Appellant
tensed up, jerked his hand in a clenched fist forward and above Carper’s head, grabbed Carper,
pulled and jerked, and tried to go between the officers. Although the jury could have interpreted
these movements as reflexive responses to Carper and Reeves’s use of force, the jury also could
have viewed the evidence—including the testimony from Reeves and Carper and Carper’s
demonstration of the altercation—and rationally decided that Appellant’s motions were voluntary.
III. Conclusion
We find the evidence sufficient to uphold Appellant’s convictions for assault of a public
servant. The jury was able to judge the credibility of both officers involved in the altercation.
Moreover, the jury witnessed a demonstration of Appellant’s actions which the record cannot
capture. A rational jury could have found that Appellant voluntarily and consciously disregarded
the risk of bodily injury to Carper and Reeves when he participated in the altercation. Further,
Appellant was criminally responsible for the injuries Carper and Reeves sustained. We affirm the
judgment of the court of appeals.
Delivered: March 30, 2022
Do Not Publish
11