Opinion filed March 12, 2015




                                          In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-12-00134-CR
                                    __________

              JACK THEOTRICE CLARK, JR., Appellant
                             V.
                 THE STATE OF TEXAS, Appellee

                     On Appeal from the 350th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 9708-D


                                      OPINION
      The trial court convicted Appellant, Jack Theotrice Clark, Jr., of the offense
of assault on a public servant. 1 After Appellant pleaded “true” to an enhancement
paragraph, the trial court assessed his punishment at confinement for a term of ten
years. In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence. We affirm.
                                 I. The Charged Offense
      The grand jury indicted Appellant for the offense of assault on a public
servant. The indictment alleged that, on or about September 13, 2009, Appellant

      1
       TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014).
intentionally and knowingly caused bodily injury to Officer Christopher Jennings,
a person Appellant knew was a peace officer attempting to lawfully discharge his
official duty, by biting Officer Jennings on the finger. A person commits the
offense of assault on a public servant if he 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. PENAL § 22.01(a)(1),
(b)(1). 2 In addition, the indictment included an enhancement paragraph that listed
a prior felony conviction for delivery of marihuana. See TEX. HEALTH & SAFETY
CODE ANN. § 481.120 (West 2010) (Offense: Delivery of Marihuana). An offense
of assault on a public servant with an enhancement is punished as a felony of the
second degree. See PENAL §§ 12.42(a), 22.01(b)(1).
       Appellant pleaded “not guilty.” The trial court found Appellant guilty of
assault on a public servant.
                                       II. Evidence at Trial
        John Wilson, a police officer with the Abilene Police Department, responded
to a disturbance call early in the morning on September 13, 2009. He wore an
Abilene police uniform and a duty belt and drove a marked patrol car. Appellant
approached Officer Wilson’s patrol car as Officer Wilson arrived on the scene of
the disturbance call. Officer Wilson asked Appellant to stand in front of the patrol
car so the in-car video camera could record their interaction. Officer Christopher
Jennings arrived at the scene shortly after Officer Wilson; Officer Jennings also
wore an Abilene police uniform with badges and drove a marked patrol car.
        Officer Wilson requested, for safety reasons, that Appellant keep his hands
out of his pants pockets. Officer Wilson was concerned because he was not sure if
Appellant was armed. Appellant initially stood in front of the patrol car but later

       2
         Although the statute allows for a conviction based on reckless conduct, the indictment did not
include reckless conduct in its charge. Therefore, we will only consider whether Appellant’s conduct was
intentional or knowing.
                                                   2
moved out of view from the video camera, and he continued to place his hands in
his pockets. After several requests by Officer Wilson for Appellant to remove his
hands from his pockets, Officer Wilson grabbed Appellant’s wrist and employed a
“soft hand technique” to get Appellant’s hands out of Appellant’s pockets.
      Appellant resisted, and a struggle ensued. Appellant then tried to escape to
his vehicle.    Officer Wilson said that, at this time, he used a “hard hands”
technique, sprayed Appellant with pepper spray, and struck Appellant with an
ASP 3 several times, but Appellant refused to comply with the orders. A third
Abilene police officer, Chris Lazirko, arrived on scene during the struggle, and the
three officers—Wilson, Jennings, and Lazirko—finally subdued Appellant.
      Officer Jennings corroborated Officer Wilson’s testimony that they had
asked Appellant a number of times to remove his hands from his pockets because
they were unsure if he was armed and were concerned about their safety. After
Appellant repeatedly put his hands back in his pockets, both Officer Jennings and
Officer Wilson approached Appellant, and when Officer Wilson grabbed
Appellant’s arm, Appellant resisted. The officers were then forced to use pepper
spray, punches, and a metal baton or ASP to control Appellant and to keep him
from grabbing the officers’ guns.
      During the struggle, Appellant drew his head back and then lunged forward
to bite Officer Jennings’s finger or hand, and Appellant bit Officer Jennings on the
index finger, which broke the skin, and also on the middle finger. Officer Jennings
said that the bite, which he thought Appellant did intentionally, caused
“[e]xcruciating pain.”
      Appellant testified that he pulled his arm away from Officer Wilson’s “soft
hand technique” because he believed contact was not justified. He said that the
officers hurt him and that he tried to escape from their physical contact. Appellant

      3
       An ASP is a metal club or baton.
                                          3
also said that he was never told why he was being detained until after he was
handcuffed by the officers. Appellant said that the officers sprayed pepper spray
on their hands and put their fingers in his mouth and that it was impossible for his
teeth not to touch their fingers. Appellant claimed he never bit anyone and never
wanted to hurt the police officers even though he was strong enough to do so.
        Evette Aguilar, the girl with whom Appellant had argued before the police
arrived, witnessed the struggle and testified that she never saw Appellant bite
either officer. Martha Anne Walke, a doctor that treated Appellant two days after
the struggle, testified that Appellant told her that a police officer scratched the
inside of his mouth; she also testified that she observed a scratch in Appellant’s
mouth. Officer Jennings denied that he put his fingers in Appellant’s mouth.
        After the incident, Officer Jennings went to Hendrick Medical Center, where
medical personnel treated and took pictures of his wounds. Steven Kastl, a board-
certified emergency medicine doctor, testified that he observed bite marks on
Officer Jennings’s left index and middle fingers at the hospital.
        The defense called Robert Glenn Williams, a dentist and board-certified
forensic odontologist, 4 to testify about the marks on Officer Jennings’s fingers.
Dr. Williams could not conclude one way or another, based upon a review of
photographs of the supposed bite marks, whether a bite caused the wound depicted
in the pictures. Dr. Williams also opined that Dr. Kastl’s testimony—that he
observed bite marks—should be discounted because Dr. Kastl did not apply any
forensic techniques and was swayed by Officer Jennings’s belief that the wounds
came from a bite.




        4
        A forensic odontologist is a dentist that specializes in the application of dentistry to the law.
They help identify deceased people, compare bite marks, and serve as expert witnesses, among other
things.
                                                   4
                                III. Issue Presented
      Appellant asserts in a single issue that the evidence was insufficient to
support his conviction.
                              IV. Standard of Review
      We review 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 examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
      The trier of fact is the sole judge of the weight and credibility of the
evidence, and a reviewing court may not reevaluate the weight and credibility of
the evidence so as to substitute its own judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The reviewing
court must presume that the factfinder resolved any conflicting inferences in favor
of the prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
                                    V. Analysis
      Appellant argues that the evidence was insufficient to show that he bit
Officer Jennings and that Officer Jennings was acting in the lawful discharge of his
official duty when the incident occurred. The Texas Court of Criminal Appeals
has broadly interpreted the definition of bodily injury to include “even relatively
minor physical contacts so long as they constitute more than mere offensive
touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Lawful
                                         5
discharge of an official duty “means that the public servant 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). Examples of such abuse include acts of “official
oppression” or “the use of unlawful, unjustified force.” Id. (citing PENAL § 39.03
(Official Oppression)). Knowledge that the assaulted person was a public servant
is presumed if the person was wearing a distinctive uniform or badge that indicated
the person’s employment as a public servant. PENAL § 22.01(d).
      Direct evidence of each element is not required to support a conviction;
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007) (citing Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004)). In addition, “a jury may infer that a victim
actually felt or suffered physical pain because people of common intelligence
understand pain and some of the natural causes of it.” Wingfield v. State, 282
S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Randolph v.
State, 152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.)). Juries may utilize
common sense and apply common knowledge gained from ordinary experiences in
life to draw reasonable inferences from the evidence. Id. (citing Wawrykow v.
State, 866 S.W.2d 87, 88–89 (Tex. App.—Beaumont 1993, pet. ref’d) (finding that
a rational jury could have inferred that pushes to the chest caused “physical
pain”)); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus
Christi 1988, pet. ref’d) (stating that people of common intelligence understand
what naturally causes physical pain).
      A. Bodily Injury Element
      Appellant claims there is insufficient evidence to prove he bit Officer
Jennings. An assault against a public servant is a result-oriented offense. Brooks v.
State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.); see Johnson v.
State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). The focus is on the result of
                                         6
the defendant’s action and his culpable mental state, not on the precise act or the
nature of the conduct committed by the defendant. Johnson, 364 S.W.3d at 298;
Brooks, 967 S.W.2d at 950. The State presented as evidence a picture of Officer
Jennings’s wounded fingers; the picture was taken at the hospital after the struggle.
Dr. Kastl, the emergency room doctor, testified that he observed the injuries on
Officer Jennings’s fingers. Officer Jennings testified that his fingers were injured
by Appellant and that the injury was painful. Officer Jennings also testified that
Appellant bit two of his fingers and that the bite broke the skin on his index finger.
The State adduced sufficient evidence that Appellant knowingly or intentionally
caused bodily injury to Officer Jennings’s finger.
      B. Element of Acting in Lawful Discharge of Duty
      Appellant also argues that the testimony of Stan Standridge, Chief of Police
for the City of Abilene, is evidence that Officer Jennings did not act in the lawful
discharge of his duty. An officer investigating a “suspicious circumstance,” while
in uniform and driving a marked patrol car, is evidence the officer is acting in the
lawful discharge of his official duty. Farris v. State, 819 S.W.2d 490, 496 (Tex.
Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290,
298 (Tex. Crim. App. 1993).         Chief Standridge also acknowledged that it is
Abilene police policy “that when feasible the officers must state their purpose to
detain or arrest a suspect, give the reason for the detention or arrest, and warn the
suspect that force will be used.”
      The evidence at trial indicated that the officers, both in uniform and driving
marked patrol cars, reported to the scene of the struggle to investigate a
disturbance call. During their encounter with Appellant, Appellant repeatedly
failed to comply with their requests to stay in front of the patrol car and keep his
hands out of his pockets.     When Appellant failed to comply, Officer Wilson
attempted to enforce compliance through a “soft hand technique,” but Appellant
                                          7
resisted. The officers then escalated their attempts to control Appellant and used
“hard hands,” pepper spray, and an ASP to force his compliance. Appellant
continued to resist and was eventually subdued by three officers. Officer Jennings
testified that, because of Appellant’s actions before and during the struggle, the
officers had no chance to inform Appellant that he was being detained.
      We conclude from our review of the record that there is sufficient evidence
from which the trier of fact could have determined beyond a reasonable doubt that
Appellant knowingly or intentionally injured Officer Jennings’s finger while the
officer was acting in the lawful discharge of his official duties. See Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. We overrule Appellant’s sole issue.
                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


March 12, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         8
