Bryan Ray Parrack v. State

NO. 07-02-0355-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 23, 2004

______________________________



BRYAN PARRACK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. CR-01D-058; HONORABLE H. BRYAN POFF, JR., JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON ABATEMENT AND REMAND

Appellant Bryan Ray Parrack has given notice of appeal from a judgment in cause number CR-01D-058 in the 222nd District Court of Deaf Smith County (the trial court). After he filed appellant's brief but before oral argument in the case, counsel for appellant, Kent Birdsong, filed a Motion to Withdraw and Substitute Counsel on October 15, 2003. On October 20, 2003, the trial court ordered substitution of Vaaiva Rudd Edwards as attorney of record. On March 15, 2004, this Court granted Mr. Birdsong's Motion to Withdraw as Attorney.

On April 9, 2004, Ms. Edwards filed a Motion to Withdraw as Counsel, notifying appellant of his right to object to the motion. Tex. R. App. P. 6.5(a)(4). No objection has been received. Ms. Edwards' motion is granted.

In Texas, every person convicted of a crime has a statutory right to appeal. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376, 378-79 (Tex.App.-Houston [14^th Dist.] 2000, no pet. h); Johnson v. State, 885 S.W.2d 641, 644 (Tex.App.-Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States Constitution guarantee a criminal defendant the right to counsel on a first appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An attorney must be appointed by the state to represent an indigent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated to appoint the appellate attorney for an eligible indigent defendant. See Tex. Code Crim. Proc. Ann. arts. 1.051(d)(1), 26.04(a).

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 43.6. Upon remand, the judge of the trial court is directed immediately to (1) conduct any necessary hearings; (2) appoint counsel to represent appellant on appeal; (3) cause the appointment to be included in a supplemental clerk's record; (4) cause any hearing proceedings to be transcribed and included in a reporter's record of the hearing; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of any hearing, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than May 5, 2004.

Per Curiam

Do not publish.

its emergency lights were flashing in the night, that the flashing lights were visible from the interstate, that Buxton was located near the patrol unit with its flashing lights, that appellant admitted to seeing someone (later identified as Buxton) waving his arms, and that appellant swerved towards and hit the person so waving his arms while attempting to evade capture is some evidence from which a rational factfinder could infer, beyond reasonable doubt, that appellant knew the individual he struck was a law enforcement officer or public servant. Thus, we reject his contention to the contrary.

Regarding the purported charge error, appellant asserts that the trial court should have submitted to the jury the lesser-included offense of simple assault. He was allegedly entitled to the submission because "officer [Buxton] caused his own assault in the pursuit of his legal duties by placing himself in the roadway against his training and against other officer's better judgment . . . ." We overrule this contention as well.

Whether a jury should be informed of a lesser-included offense depends upon two factors. First, proof of the lesser offense must be included within the proof necessary to establish the greater offense; and, second, the record must contain some evidence illustrating that if the defendant is guilty, he is guilty of only the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000); Hardie v. State, 79 S.W.3d 625, 630 (Tex. App.--Waco 2002, pet. ref'd). Appellant does not assert that both or either of these two elements were satisfied. Nor does his assertion that the officer caused his own injuries by purportedly exercising bad judgment fall within the scope of either. That Officer Buxton allegedly caused his own injuries at best negates the element of causation inherent in both the crimes of aggravated assault and simple assault. ⁽³⁾ In other words, it potentially negates his guilt for both crimes, not simply his guilt for committing the greater offense. ⁽⁴⁾ This is of import since proof allegedly illustrating that no crime occurred does not entitle the accused to a charge on any lesser offense. Smith v. State, 60 S.W.3d 885, 889 (Tex. App.-- Amarillo 2001, no pet.). Consequently, the trial court did not error in refusing to charge the jury on simple assault merely because Officer Buxton supposedly caused his own injuries.

Lastly, we have considered the sole issue raised by appellant's counsel in his Anders brief. Therein, he argued that the trial court erred in overruling his motion to suppress statements uttered by appellant after he was captured in Lubbock, Texas. Those statements purportedly should have been suppressed because they were made while appellant was in custody and before he was Mirandized. According to the record, the arresting officer advised appellant about the charges which could be levied in Lubbock County. He then stated that he did not know what charges could be levied in Hale County due to the Plainview spree. Appellant replied that he could not be charged with anything there. The officer then told him that he had hit a police officer and that the authorities in Hale County could charge him with whatever they wanted to charge him with. This caused appellant to retort that he did not see Buxton until immediately before he struck him and that Buxton caused his own injuries. Given the totality of the circumstances, the trial court could have reasonably concluded that the exchange in which the arresting officer and appellant engaged was not interrogation or its equivalent but rather an explanation of potential charges resulting in appellant volunteering his comments. When the situation is so viewed, the trial court did not abuse its discretion in overruling the motion to suppress. See Tex. Code Crim. Proc. Ann. art. 38.22 §5 (Vernon 1979) (specifying that statements which do not stem from interrogation or which are volunteered are not inadmissible under the article); Sanchez v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979) (holding that the statements were voluntary and admissible because they were not made in response to interrogations or inquiry); Cannon v. State, 807 S.W.2d 631, 634 (Tex. App.--Houston [14th Dist.] 1991, no pet.) (holding the same).

We also conducted an independent review of the record and legal authority to assess the accuracy of counsel's representation regarding the frivolity of the appeal. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (requiring same). Upon conducting that review, we too conclude that there exists no error warranting reversal of the judgment. Accordingly, appellate counsel's motion to withdraw is granted, and the judgment is affirmed.

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

3.

As charged, the State could convict appellant of aggravated assault if it proved that he 1) intentionally, knowingly, or recklessly, 2) caused serious bodily injury, 3) to a person he knew was a public servant, and 4) who was lawfully discharging an official duty. Tex. Pen. Code Ann. §22.02 (Vernon 2003). On the other hand, simple assault is proven through evidence that the accused 1) intentionally, knowingly, or recklessly, 2) caused bodily injury to another. Id. at §22.01(a)(1) (Vernon 2003). As can be seen, inherent in each crime is an element of causation requiring proof that the accused caused the victim to suffer bodily injury.

4.

This assumes that the jury believed that Buxton caused his own injuries. As factfinder, it was free to reject that theory and conclude from the evidence that appellant's high speed flight and swerving in Buxton's direction are what caused Buxton to be injured.