                                  NO. 07-09-00223-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                     JULY 13, 2010


                         ANTONIO G. OLIVAREZ, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2007-416,403; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION

      Appellant, Antonio G. Olivarez, was convicted of assault on a public servant1 and

of taking a police officer’s weapon,2 both third-degree felonies. The jury assessed an

enhanced punishment of twenty years imprisonment for each offense. We affirm.




      1
          TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (Vernon Supp. 2009).
      2
          TEX. PENAL CODE ANN. § 38.14(b) (Vernon Supp. 2009).
                             Factual and Procedural History


       Just after midnight on May 7, 2007, Lubbock Police Officer Travis Bratton was on

patrol, driving south on Avenue Q. After meeting a vehicle traveling north on Avenue Q,

Bratton noticed, in his rear view mirror, that the vehicle’s rear license plate did not

appear to be properly illuminated. Bratton made a U-turn to follow the vehicle and

extinguished his headlights for a moment to confirm his initial observation.          After

confirming that the license plate was not properly illuminated, Bratton initiated a traffic

stop. The driver of the vehicle, identified as appellant, pulled into a parking lot, and

Bratton pulled in behind him.     Rather than remaining stopped, however, appellant

jumped a curb and drove off in an easterly direction on 24th Street.


       Bratton followed the vehicle, found it crashed into a fence, and observed

appellant exit the vehicle and begin running.         Bratton pursued appellant into a

residential backyard. As appellant attempted to climb over a fence, Bratton caught up

to him, pulled him down from the fence, and attempted to bring him to the ground.

When appellant resisted and returned to his fence-scaling efforts, Bratton attempted to

use a taser on appellant. Bratton missed making a connection between the taser’s

leads and appellant’s body but approached and used the taser on him as a stun gun

(without the leads connected to appellant). Appellant came down off the fence.


       Bratton and appellant fell to the ground and struggled.         Somehow, Bratton

testified, appellant was able to dispossess Bratton of the taser and use it on him. After

sustaining shocks from the taser to his neck, shoulder, side, and, perhaps, chest,



                                            2
Bratton forced appellant to relinquish control of the taser and chased after appellant

who had resumed his flight.


       Bratton again caught up to appellant, and the two struggled over possession of

the taser. During the struggle, appellant managed to use the taser against Bratton a

second time and regain control of the taser. He then began running toward the fence

again. Bratton pulled out his firearm and directed appellant to drop the taser or else run

the risk of being shot.


       Bratton heard sirens approaching and began to yell so that fellow officers could

locate him in the backyard. As appellant made one last effort to scale the fence, Bratton

explained to him that, if appellant continued to possess the taser, Bratton would shoot

him. There appeared to be a stand-off. Bratton alerted the approaching officers that

appellant had the taser. A fellow officer directed Bratton to shoot appellant. Having

heard that directive, appellant tossed the taser. About that time, Bratton’s fellow officers

came into the backyard and took appellant into custody.


       Appellant was taken to the hospital where he admitted to an officer that he used

the taser on Bratton and expressed to other officers his desire to apologize to Bratton.

He apologized to Bratton personally on the second morning of trial and expressed his

gratitude that Bratton did not shoot him when the other officer suggested he do so.


       Appellant was convicted of assault on a public servant and of taking a weapon

from a police officer. Appellant timely appealed and, by two issues, asks this Court to

determine whether legally and factually sufficient evidence supports those convictions.


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                                   Standards of Review


       In assessing the legal sufficiency of the evidence, we review all the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v.

State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency

review, an appellate court may not sit as a thirteenth juror, but rather must uphold the

jury's verdict unless it is irrational or unsupported by more than a mere modicum of

evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       In assessing the factual sufficiency of the evidence, we must determine whether,

considering all the evidence in a neutral light, the jury was rationally justified in finding

the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404,

415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give

deference to the trier of fact’s determinations if supported by evidence and may not

order a new trial simply because we may disagree with the verdict. See id. at 417. As

an appellate court, we are not justified in ordering a new trial unless there is some

objective basis in the record demonstrating that the great weight and preponderance of

the evidence contradicts the jury's verdict. See id. Additionally, an appellate opinion

addressing factual sufficiency must include a discussion of the most important evidence

that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603

(Tex.Crim.App. 2003). However, when a defendant's version of the facts conflicts with

other evidence, we must recognize that it is the jury's prerogative to judge the credibility

                                             4
of the evidence and to ascribe the weight to be given to the evidence. See Jones v.

State, 944 S.W.2d 642, 647–48 (Tex.Crim.App. 1996).


                                          Analysis


       The record shows that appellant possessed the taser on two separate occasions,

each being relevant to one of the two offenses for which appellant was convicted.


Assault on a Public Servant


       A person commits assault if he or she “intentionally, knowingly, or recklessly

causes bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1). Assault is a

Class A misdemeanor but is elevated to a third-degree felony if “committed against . . .

a person the actor knows is a public servant while the public servant is lawfully

discharging an official duty, or in retaliation or on account of an exercise of official power

or performance of an official duty as a public servant.” Id. § 22.01(b)(1).


Mental State


       A person acts intentionally “when it is his conscious objective or desire to engage

in the conduct or cause the result.”       Id. § 6.03(a) (Vernon 2003).       A person acts

knowingly “when he is aware of the nature of his conduct or that the circumstances

exist” or “when he is aware that his conduct is reasonably certain to cause the result.”

Id. § 6.03(b). A person acts recklessly “when he is aware of but consciously disregards

a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

Id. § 6.03(c).    The trier of fact may infer intent from direct evidence and from



                                              5
circumstances surrounding the act.        See Guevara v. State, 152 S.W.3d 45, 50

(Tex.Crim.App. 2004); Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).


       Appellant challenges the sufficiency of the evidence to show that he acted with

the requisite intent when he used the taser against Bratton. We revisit and elaborate on

the details of the first occasion on which appellant gained control of the taser.


       Following a brief pursuit, Bratton found appellant in a backyard trying to scale a

wooden fence and go into the alley. Bratton pulled him down off the fence and directed

him to get on the ground. Bratton testified that appellant just stood there and looked at

him for a moment. Bratton then tried to force appellant to the ground. A struggle

between the two men ensued in which appellant swung a fist at Bratton but apparently

missed.


       Bratton drew his taser and ordered appellant to get to the ground. Faced with

appellant’s continued defiance, Bratton fired his taser but missed making a connection

with the leads. As appellant tried to scale the fence, Bratton used the taser on him in

what Bratton explained is the taser’s “drive stun” function. Bratton explained that a drive

stun delivers less voltage because the taser’s leads are not connected to the person but

remains powerful at any rate.      In order to effectively drive stun a person, Bratton

testified, the shooter must maintain direct contact between the taser and the person.


       Appellant came off the fence at that point, and a brief struggle ensued in which

both men went to the ground. Bratton was on top of appellant and directed him to roll

over so that he could be placed under arrest. Appellant continued to struggle and

responded in a “distressed” and “upset” manner that he was not going or could not go to
                                             6
jail.   At this point, Bratton had decided to use the taser again on the still-defiant

appellant but discovered that appellant had the taser. Then, appellant began drive

stunning Bratton.    Bratton testified that he could not recall how appellant obtained

possession of the taser.


        Bratton testified that appellant used the taser on him on several places on his

body. He also explained that, to operate the taser, one must turn a switch to activate it

and then pull the trigger, meaning it was likely that the switch remained on from

Bratton’s earlier use so that appellant would only need to pull the trigger to employ the

taser. Bratton described the pain level associated with getting drive stunned as a nine

or ten on a scale of one to ten. He testified that he yelled out in pain and specifically

recalled getting drive stunned in the neck, explaining that “it hurt pretty bad.”


        After appellant used the taser on Bratton, Bratton was able to pin down

appellant’s arm and avoid being stunned further. Bratton struck appellant in the face

with his fist two or three times, and appellant dropped the taser. As Bratton reached

over to get it, appellant pushed the officer off of him and returned to the fence.


        The record shows that appellant, reluctant to go to jail and trying to flee Bratton,

held the taser in his hand and used it to stun the officer on the neck, shoulder, and side

as the two men struggled on the ground. Bratton experienced significant pain from the

taser, and appellant continued his efforts to flee. From the evidence, a rational jury

could conclude that appellant intentionally used the taser against Bratton.          Legally

sufficient evidence supports the conviction for assault on a public servant.



                                              7
       To support his factual sufficiency contention as to the assault conviction,

appellant emphasizes Bratton’s testimony regarding the operation of the taser.             He

testified that unless a person turns the taser off, it will keep discharging for five seconds

after a person pulls the trigger. He also admitted that, if a taser is discharging while

located between two people, both people may experience effects of the taser.

Appellant seems to suggest that the shock Bratton experienced resulted from contact

with appellant as Bratton used the taser or that involuntary muscle contractions resulting

from being drive stunned could have caused appellant to employ the taser during the

struggle. However, Bratton saw the taser in appellant’s left hand and testified that

appellant made contact between the taser and Bratton’s body more than once and in a

number of locations. This evidence would suggest, contrary to appellant’s assertions,

that appellant’s actions in discharging the taser on Bratton were intentional. Appellant’s

sole possession of the taser and the number and variety of places on which appellant

used the taser on Bratton suggest that appellant’s movements were products of his own

volition rather than repeated accidental or involuntary responses.           Further, the jury

heard evidence that appellant expressed his desire to not go to jail from which it could

have inferred that appellant intentionally employed the taser against Bratton to avoid

being arrested. Viewing the evidence, including that evidence to which appellant points

as undermining the verdict, in a neutral light, we conclude that the evidence supporting

the conviction is factually sufficient. We overrule appellant’s first point of error.


       We note that Bratton specifically testified that he is uncertain how appellant first

got the taser as the two were struggling on the ground. For this reason, the evidence

concerning the first occasion on which appellant gained control of the taser may not
                                               8
satisfy the elements of taking or attempting to take a weapon from an officer. We need

not fully address that issue, however, because the details of the second occasion on

which appellant gained possession of the taser do satisfy those elements.


Taking a Weapon from a Police Officer


       The Texas Penal Code provides as follows:


       A person commits an offense if the person intentionally or knowingly and
       with force takes or attempts to take from a peace officer, employee or
       official of a correctional facility, parole officer, or community supervision
       and corrections department officer the officer's, employee's, or official's
       firearm, nightstick, stun gun, or personal protection chemical dispensing
       device with the intention of harming the officer, employee, or official or a
       third person.
TEX. PENAL CODE ANN. § 38.14(b). A “stun gun” is “a device designed to propel darts or

other projectiles attached to wires that, on contact, will deliver an electrical pulse

capable of incapacitating a person.” Id. at § 38.14(a)(2). The actor is presumed to have

known that the peace officer was, in fact, a peace officer if “the officer . . . was wearing

a distinctive uniform or badge indicating his employment” or if the officer identified

himself as a peace officer. Id. § 38.14(c). Again, the State was required to show that

appellant acted intentionally, that it was “his conscious objective or desire to engage in

the conduct or cause the result.” Id. § 6.03(a)


       Appellant challenges the evidence of intent and force. Keeping in mind that the

trier of fact may infer intent from direct evidence and from circumstances surrounding

the act, we examine the details surrounding the second time appellant gained

possession of the taser. See Guevara, 152 S.W.3d at 50. We look for evidence of how

appellant gained control of the taser and with what mental state he did so.
                                             9
      We rejoin the night’s events as appellant got up and ran toward the fence again

after having struggled with Bratton and having used the taser on him. Bratton had

regained control of the taser, caught up to appellant, and prepared to drive stun him.

Appellant turned around, used both hands to grab the officer’s wrist and hand, and

redirected the taser toward Bratton’s forearm. Bratton was unable to deactivate the

taser because of the positions of his hands, the taser, and appellant’s grip. Bratton was

again drive stunned by the taser, this time in the arm, causing him to drop the taser.

Both men tried to get the taser but appellant got it first. After appellant retrieved the

taser, he again started running toward the fence. At this point, Bratton drew his firearm.


      He directed appellant to drop the taser on the ground or “there was a good

possibility that he was going to get shot.” Appellant taunted Bratton, encouraging him to

go ahead and shoot. Bratton heard fellow officers approaching the area. He radioed to

them and also yelled so that fellow officers could locate the two men. He then heard

several of his fellow officers running toward the scene. Upon hearing the same thing,

appellant made one last attempt to get over the fence. Bratton alerted the responding

officers to the fact that appellant had his taser. The corporal then directed Bratton to

shoot, at which point appellant threw down the taser.


      The State had to prove that appellant intentionally or knowingly took or attempted

to take the taser from Bratton. We initially note that appellant had earlier expressed his

displeasure at the prospect of going to jail. We also know that appellant had previously

used the taser against the officer, at least suggesting that he intended to do so again to

further his efforts to avoid arrest. Also relevant to appellant’s intent are his repeated

                                            10
attempts to get away and his continued physical struggles with Bratton. The jury could

infer from appellant’s swift retrieval of the taser, after his grip and redirection of the taser

forced Bratton to drop it, that it was appellant’s conscious objective to regain control of

the taser. The record also shows that appellant maintained control of the taser despite

Bratton’s directions to put it down.      He kept the taser until another officer directed

Bratton to shoot appellant. The record does not reveal, and appellant does not point to,

evidence that would show appellant grabbed Bratton’s hand and the taser, redirected

the taser to drive stun Bratton, and then retrieved and maintained the taser accidentally

or in any state of mind other than intentionally or knowingly.


       As to the element of force, Bratton testified that he was going to use the taser

against appellant again when appellant used both hands to redirect the taser at Bratton

and drive stun him again by making contact between the taser and Bratton’s forearm.

Bratton testified that, due to the placement of appellant’s grip on the taser, Bratton was

unable to prevent the taser from striking him in the arm. Appellant’s maneuver and the

attendant shock forced Bratton to release the taser, at which point appellant quickly

seized it.   The record, then, shows that by turning the taser against Bratton, and

maintaining his grip on the taser as it shocked Bratton, appellant used force in taking or

attempting to take Bratton’s taser. Of course, the resulting shock is also a relevant use

of force in appellant’s efforts to take control of Bratton’s taser. The record does not

suggest any other manner by which appellant gained possession of the taser during this

portion of the two men’s encounter. Legally and factually sufficient evidence supports

the jury’s findings as to both mental state and use of force. We overrule appellant’s

second issue.
                                              11
                                       Conclusion


      Contrary to assertions made in appellant’s brief and notations in the judgment

that suggest appellant pleaded guilty to both offenses, the reporter’s record shows that

appellant pleaded not guilty to both offenses. We are authorized to reform the trial

court’s judgment so it may speak the truth and exercise such authority here by

correcting the trial court’s judgment to reflect that appellant pleaded not guilty to both

offenses. See French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992). Having

overruled appellant’s two issues on appeal, we sustain the trial court’s judgment as

reformed. See TEX. R. APP. P. 43.2(b).




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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