AFFIRM; and Opinion Filed December 1, 2014.




                                           Court of Appeals
                                                            S      In The


                                    Fifth District of Texas at Dallas
                                                        No. 05-13-01620-CR

                                   ROBERT CHARLES THOMPSON, Appellant
                                                   V.
                                       THE STATE OF TEXAS, Appellee

                                 On Appeal from the 219th Judicial District Court
                                              Collin County, Texas
                                     Trial Court Cause No. 219-80385-2012

                                           MEMORANDUM OPINION
                    Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired 1
                                        Opinion by Justice O’Neill
           Appellant Robert Charles Thompson appeals his conviction for the offense of assault on a

public servant. He was found guilty after a bench trial and received a sentence of ten years’

confinement probated for four years.                          In two issues, appellant contends there was legally

insufficient evidence to support his conviction. We affirm the trial court’s judgment. Because

the issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                                             BACKGROUND

           On September 3, 2011, the manager of a Collin County bar contacted police regarding

problems with a patron. In response, Officer Michael Bogacki, on foot patrol, entered the bar

and observed appellant. Bogacki is employed by the City of Plano as a police officer. Bogacki


   1
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
observed that appellant had watery eyes and that appellant’s breath smelled of alcohol. Bouncers

at the bar told Bogacki that appellant had been asked to leave, but refused, and was

argumentative. One of the bouncers also observed what he believed to be use of cocaine by

appellant and his girlfriend. Bogacki believed that appellant might be committing the offense of

public intoxication. When appellant exited the bar to obtain his car from the valet area, Bogacki

detained appellant to investigate. Appellant refused to give Bogacki his driver’s license when

Bogacki requested it, and walked away. Another police officer instructed appellant to return to

Bogacki. Appellant was argumentative and demanded that Bogacki perform a field sobriety test.

Bogacki did so. He administered the horizontal gaze nystagmus test on appellant, which showed

six out of six clues of intoxication. Appellant refused to take the walk and turn test, and walked

away toward the valet. Bogacki then placed appellant under arrest for public intoxication.

       Bogacki then attempted to place appellant in the back seat of a squad car. He opened the

rear side passenger door. Appellant refused to get into the car. Bogacki pushed appellant into

the car, and appellant continued to resist. Appellant refused to pull his legs into the car. When

Bogacki attempted to fasten appellant’s seat belt, appellant kicked Bogacki in the knee. Bogacki

testified that the kick was painful, and his knee “slightly hyperextended” or bent backwards.

Bogacki then grabbed appellant’s foot “and muscled it into the car and shut the door.”

       Another City of Plano police officer, Chris Poligala, witnessed the kick. He was standing

on Bogacki’s left, toward the rear of the vehicle. When he witnessed the kick, Poligala pressed

the button on the car’s video recorder so that the previous ten seconds would be captured. He

explained that only the video, not the audio, would be activated. The audio would begin to

record ten seconds later. The video was admitted into evidence at trial. The camera was located

on the driver’s side of the car. Appellant was seated facing outward on the passenger side of the

car. Therefore only appellant’s back is visible on the recording.

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       James Appleton testified as a witness for appellant. Appleton owns a video production

company and testified that he is a video and audio expert. He often works for federal and state

law enforcement performing video and audio surveillance analysis. Appleton testified that he

“had some real problems” with the video of appellant taken from the squad car. First, it would

have been possible to obtain a “full screen view” of appellant in the back seat of the car. Second,

there was no audio. Third, the video should have begun earlier, when Bogacki first attempted to

seat appellant in the car. Appleton testified that most systems would allow several minutes or at

least a full minute or to be captured when the button was pressed, rather than ten seconds.

Appleton also testified that he enhanced the video, and stated that in his opinion appellant did not

kick Bogacki: “There is no body language that is associated with that kick. There was no

moving back of the body. There was no extension of the knee.” The enhanced video “clearly

showed” that appellant’s leg was bent, not extended, at the time of the alleged kick. Appleton

also testified that in his opinion the video offered by the State had been altered because it was

“completely inconceivable” that the ten-second recording would begin exactly when Bogacki

said “You kicked me” to appellant.

       The video identified by Poligala was admitted into evidence as State’s Exhibit 1. The

enhanced video identified by Appleton was admitted into evidence as Defense Exhibit 2. Both

videos were played for the trial court at the trial and are included in the appellate record.

                                      STANDARD OF REVIEW

       In reviewing the legal sufficiency of the evidence, we consider the evidence in the light

most favorable to the verdict to determine whether, based on that evidence and reasonable

inferences from that evidence, a rational finder of fact could have found the essential elements of

the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Lucio

v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). Direct and circumstantial evidence are

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treated equally, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Because the fact finder is the sole judge of the

witnesses’ credibility and the weight to be given the evidence, the reviewing court defers to the

trier of fact’s resolution of any conflicts in testimony, weight of the evidence, and inferences

drawn. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

                                         APPLICABLE LAW

         A person commits 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. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1)

(West Supp. 2014). Appellant does not challenge the State’s allegations that Bogacki was a

public servant lawfully discharging an official duty. His only contention is that the evidence is

insufficient to show that he caused bodily injury to Bogacki.

                                 APPLICATION OF LAW TO FACTS

         In his first issue, appellant argues that the evidence is insufficient to support the trial

court’s finding of guilty because “the State’s photos and videos clearly show that Appellant did

not commit the offense.” He argues that the trier of fact chose to believe the inconsistent

testimony of two police officers “over the irrefutable video and photographic evidence.” He

contends the evidence must be sufficient for a “rational” trier of fact to find all of the elements of

the offense beyond a reasonable doubt, and it was not rational for the trial court to believe the

police officers when their testimony was inconsistent and was refuted by the video evidence.

         Appellant argues the police officers’ testimony is inconsistent about where Poligala was

standing. Poligala testified he was standing toward the rear of the vehicle, to Bogacki’s left,

while Bogacki testified Poligala was near the front door, which would have been to Bogacki’s

right.   Appellant argues this is just one of the “material inconsistencies” in the officers’

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testimony. He urges, however, that the “best evidence of what occurred that evening” is in the

State’s own video, and pictures taken from the video. He contends that neither the video nor the

pictures show any “body language that is associated with a kick.” He argues the video shows his

leg was bent, not extended, and he was leaning forward, not back, when the kick allegedly

occurred. He compares the evidence to the hypothetical convenience store robbery described in

Brooks in which a witness identifies person A as the perpetrator, but surveillance video shows

that person B actually committed the offense. See Brooks, 323 S.W.3d at 907. He contends the

video shows he did not commit the offense, and concludes that the State failed to prove each of

the essential elements of assault on a public servant.

       The State responds that two officers testified unequivocally that appellant kicked

Bogacki. The officers’ testimony was based on their presence and observations at the scene.

The video, filmed from behind appellant, shows appellant “moving and struggling,” but does not

show his legs at the moment of the kick. The video was not conclusive support for either the

officers’ or appellant’s version of events, and therefore the trial court was required to make its

finding of guilt or innocence based on the credibility of the witnesses.

       Although Appleton testified there was no kick, his opinions were based on the limited

view of the video. And Appelton conceded that his expertise extended only to the technical

aspects of the recordings, and did not include any scientific knowledge of human movement.

His testimony about appellant’s movements, or lack of movement, was “common sense” that any

layperson including the trial judge would have. While the trial court could have accepted

Appleton’s interpretation of the video and pictures, and rejected the officers’ testimony, it did not

do so. The trial court was the exclusive judge of the credibility of the witnesses and the weight

to be given their testimony. See Brooks, 323 S.W.3d at 899. “[T]he evidence is not rendered

insufficient simply because appellant presented a different version of the events.” Temple v.

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State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013) (quoting Turro v. State, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993)); see also Castilla v. State, 374 S.W.3d 537, 540 (Tex. App.—San

Antonio 2012, pet. ref’d) (distinguishing Brooks hypothetical where video evidence did not

“conclusively disprove” but “merely called into question” eyewitness’s credibility).         We

conclude there was legally sufficient evidence to support each element of the offense of assault

on a public servant. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1). We overrule

appellant’s first issue.

        Because of our conclusion that the evidence was legally sufficient to support appellant’s

conviction for assault on a public servant, we need not address his second issue that in the

alternative he should be convicted of the lesser offense of resisting arrest. We affirm the trial

court’s judgment.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

131620F.U05




                                              –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERT CHARLES THOMPSON,                           On Appeal from the 219th Judicial District
Appellant                                          Court, Collin County, Texas
                                                   Trial Court Cause No. 219-80385-2012.
No. 05-13-01620-CR        V.                       Opinion delivered by Justice O’Neill; Justice
                                                   Fillmore and Chief Justice Thomas (Ret.),
THE STATE OF TEXAS, Appellee                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 1st day of December, 2014.




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