                                   NO. 07-01-0150-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 OCTOBER 31, 2001
                          ______________________________

                                 PATRICK HANG TRAN,

                                                         Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

             FROM THE 176TH DISTRICT COURT OF HARRIS COUNTY;

                    NO. 852,458; HON. BRIAN RAINS, PRESIDING
                        _______________________________

Before BOYD, C.J., QUINN and JOHNSON, J.J.

       Patrick Hang Tran (appellant) appeals his conviction for official oppression.

Through one point of error, he contends that the evidence was legally insufficient to

support the trial court’s finding of guilty. This is allegedly so because the state failed to

prove that he was acting under the color of his office or employment and that he denied

or impeded the complainant in the exercise and enjoyment of a right or privilege while so

acting. We overrule each contention and affirm the judgment.
                                       Background

       Evidence presented at trial illustrates appellant’s persistent attempts to contact Iris

Gonzalez (Gonzalez), a patient in a restricted access mental facility. On June 27th, 2000

appellant attempted three times to obtain information on Gonzalez from hospital personnel.

The first attempt occurred about 8:30 p.m. Appellant, a Houston police officer out of

uniform, entered the facility, showed his police badge to Lisa Samuel (the security service

officer), and stated that he was a police officer and that he wanted information on

Gonzalez. Samuel looked up Gonzalez’s information on her computer and noticed that

she was listed as a “confidential” patient. The “confidential” designation prohibited Samuel

from giving out any data about Gonzalez. Though Samuel subsequently told appellant she

had no information about the person he mentioned, appellant stated he knew she was in

the hospital and attempted to view the computer screen. At that point, Samuel cleared the

screen.

       Appellant’s second attempt occurred minutes later at another of the facility’s

buildings. There, he approached Kimberly Pencak (the security service officer on duty),

flashed his badge within two or three inches from her face, and stated that he was a

Houston police officer and that he needed information on patient Gonzalez. When Pencak

looked up Gonzalez’s information, appellant attempted to look at her computer screen by

going around her desk. She quickly cleared the screen preventing appellant from doing

so. So too did she tell him that she had no patient by the name of Iris Gonzalez and that

he was welcome to use the courtesy phone to call one of the family members. Appellant

then left.



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       His third attempt on June 27th came minutes later at another locale within the facility.

Marisol Pena testified that she saw appellant “[come] in through the doors, [go] past me

towards the elevator.” She asked him if she could help him and “he [came] around my

desk and he [pulled] out a badge and he [said] H.P.D. and [put] it back in his pocket.” So

too did he state that he was looking for patient Gonzalez. After looking up Gonzalez’s

information, Pena asked appellant if had a six digit code which would have allowed him

access to Gonzalez. After stating that he did not, appellant left.

       Appellant’s final attempt came on the morning of June 28, 2000. And, much like his

third attempt, he walked past the security service officer to the elevator. The only

difference was that this time he was in his Houston police uniform with sidearm. The

security officer on duty was Talita Braxton. She testified that appellant, in full uniform,

hurriedly entered the building, bypassed her desk, approached the elevator, and told her

to “[l]et me up to three.” Because he was in uniform and she had “no reason to distrust a

uniformed officer,” she replied, “I will let you up.” At that point, Braxton unlocked the

elevators for appellant and allowed him to proceed.

                                    Standard of Review

       In considering the legal sufficiency of the evidence, the court views the relevant

evidence, both circumstantial and direct, in the light most favorable to the verdict and

determines whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This,

however, does not permit the court to sit as a thirteenth juror. Moreno v. State, 755 S.W.



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2d 866, 867 (Tex. Crim. App. 1988). Rather, the reviewing court merely acts to safeguard

due process and to ensure the rationality of the fact-finders verdict. Teer v. State, 923

S.W.2d 11, 17 (Tex. Crim. App. 1996).

       Next, one is guilty of official oppression if he 1) is a public servant, 2) who

intentionally denies or impedes another in the exercise or enjoyment of any right, privilege,

power, or immunity while knowing his conduct to be unlawful, and 3) while acting under

color of his office or employment. TEX . PENAL CODE ANN . §39.03(a)(2) (Vernon 1994).

Furthermore, a public servant acts under the color of his office or employment if he “acts

or purports to act in an official capacity or takes advantage of such actual or purported

capacity.” Id. at §39.03(b).

                                 Application of Standard

       a.     Acting under color of office or employment

       To the extent that appellant contends the state failed to prove that he acted under

color of his office while attempting to gain access to Gonzalez, we find of record evidence

illustrating that he thrice flashed his official badge to various security officers the previous

day and that he appeared in full uniform and directed Braxton to give him access to the

third floor. While it may be that appellant did not tell Braxton that he was a police officer,

as he did the other security officers, words are not the only form of communication at work

here. Wearing one’s official police uniform with sidearm imparts to those who view him the

information that he is a police officer. DeMoss v. State, 12 S.W.3d 553, 557 (Tex.

App.–San Antonio 1999, pet ref’d). Couple that with his 1) previous attempts to gain

access by informing security personnel that he was a Houston police officer while flashing



                                               4
his official badge, and 2) directive to Braxton to allow him access to the third floor, we

cannot but hold that ample evidence exists upon which a fact-finder could conclude,

beyond reasonable doubt, that appellant acted or purported to act in his official capacity,

or took advantage of that actual or purported capacity in demanding access to Gonzalez.1

This is especially true given Braxton’s own testimony that she permitted appellant to

continue on because she had “no reason to distrust a uniformed officer . . . .”

        b.       Deny or impede

        As to the matter of denying or impeding Braxton from exercising the right or privilege

to exclude him from the premises, appellant suggests that she allowed him to proceed

based upon her own violation of policy as opposed to the belief that appellant was a

Houston police officer operating under color of office. And, because she so acted, he

allegedly neither denied or impeded her in the exercise of any right or privilege, and a

finding to the contrary lacked legally sufficient evidentiary support. We disagree.

        It may be that the facility hired off-duty police officers to roam the halls in uniform

and policy required Braxton to screen all, including such off-duty officers, before allowing

them to proceed. Yet, such individuals were hired because they were police officers

capable of roaming in official police garb. In other words, they implicitly were hired by the

facility because they could take advantage of their actual or purported capacity as a police


        1
          To the extent that appellant relies on Blas ingame v. State, 706 S.W .2d 682 (Tex. App.–Houston [14th
Dist.] 198 6, writ ref’d), we find the case inapposite. There, the accused represented himself to be a vice
officer while he was actually the local mayor. And, though the court held that the evidence was insufficient
to support conviction, it did so because the acc use d rep resente d him self to be a vice officer as oppo sed to
the m ayor. Simply put, the court held that the defendant must be a public servant acting under the color of
“his own office or em ploym ent,” not som e other. Id. at 684 (emphasis added). Since Blasingame was not
representing him self as the m ayor, he co uld no t be convicted o f official oppression. Here, we do not have the
appellant representing himself to be anything other than a police officer to gain access to Gonzalez. So,
Blasingame is inapposite.

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officer. And, it is because appellant appeared before Braxton as a police officer that she

allowed him access. She told the court when asked if she would have permitted appellant

to visit at that time, “[n]ot if he was in plainclothes, no sir.” Again, she “had no reason to

distrust a uniformed officer.”

       Simply put, appellant (while knowing he lacked legitimate access to Gonzalez)

utilized the uniform and thereby took advantage of his actual or purported capacity as a

police officer, to dupe Braxton into foregoing her right, privilege and authority to screen

him. Indeed, she may have been wrong in ignoring policy and that may have also been

a factor in her decision. Yet, we cannot close our eyes to the fact that she also relied upon

appellant’s appearance as a genuine police officer. Consequently, some evidence exists

upon which a rational fact-finder could find beyond reasonable doubt, that appellant

denied or impeded Braxton in the exercise of a right or privilege while acting under color

of office.

       Accordingly, we affirm the judgment of the trial court.




                                                         Brian Quinn
                                                           Justice

Do Not Publish.




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