



NUMBER 13-99-317-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________

ROBERT GENE OILER AKA CHRIS EDWARD ENKE,      Appellant,


v.

THE STATE OF TEXAS,      Appellee.
___________________________________________________________________

On appeal from the 24th District Court of Jackson County, Texas.
___________________________________________________________________


OPINION ON REMAND

Before Justices Dorsey, Yañez, and Castillo
Opinion by Justice Yañez


This case is before this Court on remand from the Texas Court of Criminal Appeals. Robert Gene Oiler, appellant, was
convicted in April 1999 of aggravated assault on a police officer.  See Tex. Pen. Code Ann.§ 22.01 (Vernon Supp. 2002)).
(1)  Appellant challenges his conviction with one point of error.  We affirm.
I. Background
On August 27, 1999, officers Darren Stancik and Rick Boone, of the Jackson County Sheriff's Department, were dispatched
to an accident along a state highway.  While en route to the accident, the officers were informed that a fight had developed
between the people involved in the accident, and that a baseball bat had been used.  Upon arriving, the officers were
warned by people at the scene that appellant was violent and had stated that the police would not take him alive.  Stancik
approached appellant, who was bloody from injuries sustained in a fight with his stepson before the officers arrived.  
When he saw that appellant had a metallic object in his hand, Stancik ordered appellant to put his hands on his car.  Instead
of complying with the officer's command, appellant approached officer Stancik in an aggressive manner, swearing and
holding a knife.  Initially Stancik drew his pistol, but in a remarkable show of restraint, holstered his sidearm and used
pepper spray to stop appellant, after appellant had approached to within fifteen feet of the officer.  The pepper spray failed
to incapacitate the appellant, so officer Boone assisted Stancik in wrestling the appellant to the ground.
The officers struggled with appellant while he was on the ground, eventually managing to handcuff him.  Appellant
continued to struggle even after being handcuffed, kicking and spitting at the officers.  As Stancik was retrieving the knife
appellant had brandished, appellant kicked Stancik in the leg, just below his knee.  Appellant also threatened Stancik when
he kicked him.  Appellant was still on the ground when he kicked Stancik, and the officers left appellant on the ground and
radioed for additional officers and emergency medical services.
Appellant remained belligerent throughout the remainder of the evening, threatening most of the people who had contact
with him, and lashing out constantly, even attempting to kick the emergency medical technicians who attempted to treat his
injuries.
Appellant was tried before a jury, found guilty of assault on a public servant, and, with enhancements, was sentenced to
ninety-nine years in the Texas Department of Corrections, Institutional Division.  The charge provided to the jury at trial
included only the charge of assault on a public servant.  Appellant objected to the charge and requested that the charge
include resisting arrest as a lesser-included offense of assault on a public servant.  The trial court overruled appellant's
objection, and refused the amendments to the charge.
Appellant challenged his conviction, arguing in his sole point of error that the trial court erred in refusing to submit a jury
charge on the lesser-included offense of resisting arrest.  In an unpublished opinion issued on December 7, 2000, this Court
sustained appellant's sole point of error, and reversed and remanded.  Oiler v. State, No. 13-99-00317-CR, 2000 Tex. App.
LEXIS 8253 (Tex. App.-Corpus Christi December 7, 2000)(Seerden, CJ, dissenting)(not designated for publication).  The
court of criminal appeals, in an unpublished per curiam opinion delivered September 19, 2001, reversed our decision and
remanded the case to this Court to consider in light of the court of criminal appeals' decision in Lofton v. State, 45 S.W.3d
649 (Tex. Crim. App. 2001).
II.  Lofton v. State
A.  Factual Background
The facts in Lofton are similar to those of the case now before this Court.  See Lofton, 45 S.W.3d 650-51.  In Lofton, police
officers in Temple, Texas responded to a domestic disturbance call.  Id. at 650.  When the officers arrived at the scene, they
found Morris Lofton belligerent and upset.  Id.  When the officers attempted to arrest Lofton, he first attempted to flee, then
struggled with the police officers, striking one of the officers in the face.  Id.  The police officers testified that Lofton stated 
"You're not arresting me, you'll have to kill me."  Id.  Eventually the officers overpowered Lofton and placed him in
handcuffs.  Id.  Lofton was convicted of assault on a public servant, and appealed, arguing that the trial court erred in
refusing a jury instruction on the lesser-included offense of resisting arrest.  Id.  The Austin Court of Appeals reversed and
remanded.  Lofton v. State, 6 S.W.3d 796, 798 (Tex. App.-Austin 1999), rev'd, 45 S.W.3d 649 (Tex. 2001).
The court of appeals held that the evidence at trial could have supported either a conviction for resisting arrest, or one for
assault, writing that "[f]rom the evidence before it, the jury could have rationally believed that appellant intended to
obstruct the arrest and the force he used was incident to that intent."  Lofton, 6 S.W.3d at 800.  The court of criminal
appeals reversed the court of appeals, stating:
We conclude that the evidence in the instant case did not raise the issue of the lesser included offense of resisting arrest.  A
defendant's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at
all, is not adequate to raise the issue of a lesser-included offense.  In Bignall v. State, we concluded, "if a defendant either
presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing that he
is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required."  The evidence must
establish that if a defendant is guilty, he is guilty only of the lesser included offense.
The evidence at trial showed that appellant intended to assault a public servant who appellant knew was in the lawful
discharge of his official duty.  Appellant struck a police officer twice in the face during the officer's attempt to arrest
appellant, causing the officer to suffer pain and a cut on his face.  Even if appellant had intended only to prevent his arrest,
the force used by appellant against [the police officer], at the very least, recklessly caused [the police officer] to suffer a
bodily injury.  Regardless of appellant's intent, the State proved that appellant assaulted [the police officer]. Resisting arrest
was not a rational alternative to assault on a public servant in the instant case.  

Lofton, 45 S.W.3d at 652 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).  
B.  Legal Analysis
Under Texas law, a defendant is entitled to a charge on a lesser-included offense if: (1) the lesser-included offense must be
included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that
would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense.  Lofton,
45 S.W.3d at 651; Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.1993).  If there is anything more than a
mere scintilla of evidence, a defendant is entitled to a charge on the lesser included offense.  Forest v. State, 989 S.W.2d
365, 367 (Tex. Crim. App. 1999); Bignall, 887 S.W.2d at 23.
A person may be found guilty of assault on a public servant if that person "intentionally or knowingly or recklessly caused
bodily injury to a person the appellant knew was a public servant while the public servant was lawfully discharging an
official duty."  See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2002).  The offense of resisting arrest is committed when a
person "intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest . . . by using
force against the peace officer [.]" Tex. Pen. Code. Ann. §38.03 (Vernon 1994).  The code of criminal procedure provides
that an offense is a lesser-included offense if it can be established by proof of the same facts required to establish the
commission of the offense charged.  Tex. Code Crim. Proc. Ann. § 37.09 (Vernon 1981).
In Lofton, the court of appeals discussed the difference between assault and resisting arrest, writing that "the distinction
between these two crimes is appellant's mental state.  Assault requires intentionally, knowingly, or recklessly causing a
certain result while resisting arrest requires intent to commit the stated conduct."  Lofton, 6 S.W.3d at 799 (citations
omitted).  The court of appeals then applied the distinction, stating: "[u]nder our facts, if appellant intended to cause bodily
injury to the officer and did so, he is guilty of assault.  If, however, appellant's intent was to resist arrest and the force he
used was merely a by-product of that goal, appellant is guilty only of resisting arrest."  Id. (citations omitted).
The court of criminal appeals disagreed with the court of appeals' analysis, stating that, regardless of his intent, Lofton had
used force against a police officer and had "at the very least, recklessly caused [the police officer] to suffer a bodily injury." 
Lofton, 45 S.W.3d at 652.  Essentially, the court of criminal appeals held, as is more clearly stated by the dissent in Lofton,
that "[e]ven if appellant by his actions has intended to prevent the arrest, this does not negate the evidence that his chosen
method of doing so was to assault the arresting officer."  Id. at 653 (Meyers, J., dissenting).  The court of criminal appeals
thus held that, because the officer was injured when Lofton resisted the arresting officers, he is guilty of assault, and cannot
be guilty only of the lesser included offense of resisting arrest.  See id. at 652.
C.  Application of Lofton
When this Court initially decided the instant case, we applied an analysis identical to that applied by the Austin Court of
Appeals in Lofton.  Oiler, No. 13-99-00317-CR, 2000 Tex. App. LEXIS 8253 at * 8-9.  Our analysis has now been
disapproved by the court of criminal appeals.  See Lofton, 45 S.W.3d at 652.  In the instant case, appellant used force to
prevent the police officers from effecting his arrest, kicking one of the officers in the process.  The officer testified he was
injured when appellant kicked him.  Under the holding in Lofton, we now hold that appellant was not entitled to a
lesser-included offense instruction.  However, we find the Lofton decision troubling: the Lofton holding creates the very
great risk that, in any case in which a person resists arrest by any use of force, the State will oppose a resisting arrest
instruction.  Although the appellants in the instant case and in Lofton clearly used a great deal of force in resisting arrest,
the decision of the court of criminal appeals raises the very real possibility that any minor scuffle during an arrest will result
in a defendant being charged solely with assault on a public servant.
III.  Conclusion
Applying the Lofton holding to the case now before this Court, we find that appellant was not entitled to the jury instruction
for the lesser-included offense of resisting arrest. Appellant's sole point of error is overruled.  
The judgment of the trial court is AFFIRMED.



LINDA REYNA YAÑEZ
Justice


Concurring opinions by Justices Dorsey and Castillo.
Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this the
28th day of March, 2002.
1.  Appellant was tried under the 1997 amendments to § 22.01.  Because the differences between the 1997 version and the
current version of § 22.01 do not affect the provisions at issue in this appeal, the current version will be cited throughout
this opinion.
