Isidro Jacobo v. State

NUMBER 13-17-00530-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ISIDRO JACOBO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Perkes, and Dorsey1
Memorandum Opinion by Justice Dorsey
A jury convicted appellant Isidro Jacobo of one count of assault on a public servant.
1 Retired Thirteenth Court of Appeals Justice J. Bonner Dorsey, assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. §
74.003.
See TEX. PENAL CODE ANN. § 22.01. By two issues, Jacobo contends that: (1) the trial
court abused its discretion when it denied his request of a lesser included offense; and
(2) the evidence is insufficient to meet the elements of the offense. We affirm.
I. BACKGROUND
On May 28, 2015, Jacobo was a student at Robstown High School where
Robstown Police Officer Marco Gonzalez was on duty wearing his uniform. At trial, Officer
Gonzalez testified he attempted to make an arrest on another student in the cafeteria
when Jacobo approached him and started insulting him. Officer Gonzalez continuously
instructed Jacobo to go outside and report to the office while simultaneously attempting
to arrest the other student. As Officer Gonzalez walked out with the other student, Jacobo
followed them while continuing to insult Officer Gonzalez. Officer Gonzalez felt Jacobo
push and grab his arm, causing him pain.
Other officers were called and responded. Officer Gonzalez informed Jacobo that
he was under arrest, but Jacobo aggressively resisted. As Officer Isaac Deleon tried to
subdue him, Jacobo threw a closed-fist punch with his right hand and hit Officer Deleon
on the right side of his head.
Officer John Garcia attempted to put Jacobo into the police car to transport him to
the police station. Officer Deleon observed Jacobo intentionally kick Officer Garcia in the
chest as Officer Garcia was attempting to place Jacobo into the police unit. Officer Garcia
testified that as he was attempting to place Jacobo in the back of his unit, Jacobo “loaded
up” and forcefully kicked him in the stomach, took his air out, and caused him pain.
According to Officer Garcia, Jacobo was yelling profanities and facing Officer Garcia
when he kicked him. The kick to Officer Garica is the basis of Jacobo’s conviction of
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assault on a public servant.
At the charge conference, Jacobo’s attorney requested a lesser-included charge
of resisting arrest, which the trial court denied. The jury found Jacobo guilty of the third
count of assault on a public servant. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his second issue, which we address first, Jacobo argues that the evidence is
insufficient to meet the elements of assault on a public servant. We disagree.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all the evidence in the
light most favorable to the verdict to determine whether any rational fact finder could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim.
App. 2011) (holding that the Jackson standard is the only standard to use when
determining sufficiency of the evidence). The jurors are the exclusive judges of the facts,
the credibility of the witnesses, and the weight to be given to the testimony. Bartlett v.
State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of
the facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v.
State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (stating that
a jury can choose to disbelieve a witness even when that witness’s testimony is
uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
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Ohio App. 2007). We afford almost complete deference to the jury’s credibility determinations,
and we resolve any inconsistencies in the evidence in favor of the verdict. See Lancon
v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Curry v. State, 30 S.W.3d 394,
406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore defer to that
determination.”). Circumstantial evidence is as probative as direct evidence in
establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt.
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235
S.W.3d at 778).
B. Discussion
Here, the indictment alleged that Jacobo “intentionally, knowingly, or recklessly
cause[d] bodily injury to John Garcia . . . a peace officer . . . .” Officer Garcia testified
Jacobo remained uncooperative and refused to enter the police unit. Jacobo then faced
Officer Garcia, forcefully kicked him in the stomach, took the wind out of him, and caused
him pain. See Laster v. State, 275, S.W.3d 512, 524 (Tex. Crim. App. 2009) (“Direct
evidence that a victim suffered pain is sufficient to show bodily injury.”); see also Bartlett,
270 S.W.3d at 150. Officer Garcia testified that he was lawfully discharging an official
duty while donning his distinct police officer uniform. Moreover, Officer Deleon observed
Jacobo intentionally kick Officer Garcia as Officer Garcia was attempting to place Jacobo
into the police unit. Viewing the evidence in the light most favorable to the verdict, we
conclude that any rational factfinder could have found beyond a reasonable doubt that
Jacobo assaulted a public servant. See Adames, 353 S.W.3d at 859. Therefore, we hold
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that the jury could have reasonably found that Jacobo assaulted a public servant. We
overrule his second issue.
III. LESSER-INCLUDED OFFENSE
By his first issue, Jacobo contends that the jury should have been given an
instruction on the offense of resisting arrest because Jacobo was resisting the illegal
transportation by Officer Garcia.
A. Standard of Review and Applicable Law
We review the trial court’s decision regarding the failure to submit a lesser-included
offense instruction for an abuse of discretion. Brock v. State, 295 S.W.3d 45, 49 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). We apply a two-pronged test to determine if
the trial court should have given a jury charge on a lesser-included offense. Hall v. State,
225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). We first determine if the proof
necessary to establish the charged offense includes the lesser offense, “and this is a
question of law that does not depend on the evidence to be produced at trial.” Steele v.
State, 490 S.W.3d 117, 129 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The second
step requires us to determine whether “there is some evidence in the record which would
permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-
included offense.” Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011).
A person commits the offense of assault on a public servant if the person: (1)
intentionally, knowingly, or recklessly (2) causes bodily injury (3) to a person the actor
knows is a public servant (4) while the public servant is lawfully discharging an official
duty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1). A person commits the offense of
resisting arrest, search, or transportation if the person: (1) intentionally (2) prevents or
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obstructs a person he knows is a peace officer (3) from effecting an arrest, search, or
transportation of the actor (4) by using force against the peace officer. Id. § 38.03(a).
An offense constitutes a lesser-included offense of a charged offense if: (1) it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged; (2) it differs from the charged offense only in that a
less serious injury or risk of injury to same subject suffices to establish its commission;
(3) it differs from the offense charged only in that a less culpable mental state suffices to
establish its commission, or consists of an attempt to commit the charged offense. See
TEX. CODE CRIM. PROC. ANN. art. 37.09. We use the statutory elements and the facts
alleged in the charging instrument to find lesser-included offenses. See Hall, 225 S.W.3d
at 535.
B. Discussion
In Lofton, the court of criminal appeals held that the defendant was not entitled to
a resisting arrest instruction where defendant struck the officer in the face, causing the
officer to suffer pain. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). The
court further noted that even if the defendant intended only to resist arrest, the force used
by the defendant against the officer, at the very least, recklessly caused the officer to
suffer bodily injury. Id. Thus, regardless of the defendant’s intent, the State proved that
the defendant assaulted the officer, and resisting arrest was not a rational alternative to
assault on a public servant. Id.
This case presents no basis for distinguishing the Lofton court’s precedent. The
evidence at trial established that Jacobo forcefully kicked Officer Garcia in the stomach
with his foot, took the wind out of him, and caused Officer Garcia pain. Thus, in resisting
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arrest, Jacobo assaulted a public servant. See Steele, 490 S.W.3d at 129 (concluding
that the defendant was not entitled to a resisting arrest charge where the defendant
physically struggled with the officer and caused the officer injuries); Ortega v. State, 207
S.W.3d 911, 918 (Tex. App.—Corpus Christi–2006, no pet.) (holding that the trial court
did not err in refusing lesser-included-offense instruction on resisting arrest when “[t]he
evidence show[ed] that appellant struck the arresting officer in the chest and face using
his fists”); Oiler v. State, 77 S.W.3d 849, 852 (Tex. App.—Corpus Christi–Edinburg 2002,
pet ref’d) (holding that defendant was not entitled to a lesser-included offense of resisting
arrest when defendant forcefully kicked an officer to prevent the police officer from
effecting his arrest, and the officer testified he was injured when defendant kicked him);
Gumpert v. State, 48 S.W.3d 450, 454 (Tex. App.—Texarkana 2001, pet. ref’d) (resisting
arrest was not a rational alternative to assault on a public servant when there was
evidence that the defendant caused bodily injury while resisting arrest). Therefore, the
trial court did not abuse its discretion when it refused Jacobo’s request for an instruction
on resisting arrest. See Brock, 295 S.W.3d at 49. We overrule Jacobo’s first issue.
VI. CONCLUSION
Having overruled Jacobo’s issues, we affirm the trial court’s judgment.
J. BONNER DORSEY,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of July, 2019.
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