Opinion issued August 15, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00161-CR
                           ———————————
                   GARY WAYNE THOMPSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 239th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 78285-CR


                        MEMORANDUM OPINION

      A Brazoria County grand jury indicted Gary Wayne Thompson for assault of

a public servant, a third-degree felony. See TEX. PENAL CODE § 22.01(a)(1), (b)(1).

Thompson pleaded not guilty. The case was tried before a jury, which found

Thompson guilty. The trial court signed a judgment of conviction. It sentenced
Thompson to five years in state prison, suspended the sentence, fined Thompson

$500, and placed him on four years of community supervision.

      On appeal, Thompson challenges the legal sufficiency of the evidence

supporting the conviction, contending that it is insufficient to support findings that

the officer suffered bodily injury and that the officer was lawfully discharging an

official duty. Thompson also contends that the trial court abused its discretion in

excluding evidence of his prior encounter with the officer. We reinstate the appeal

on the court’s active docket and affirm.

                                 BACKGROUND

      One morning in November 2015, the Clute Police Department received a

report of an incident of possible domestic violence at Thompson’s home on

Crestwood Street. CPD dispatched officers to investigate.

      Officer J. Newton found the complainant, Thompson’s adult daughter, at a

neighbor’s home nearby. Earlier that morning, the daughter told Officer Newton,

Thompson argued with her about her use of his car the day before. The argument

became heated, and Thompson approached her. When she put her hand in front of

his face, he bit her forearm. Officer Newton observed a bite mark on her arm.

      Patrol Sergeant B. Bryant arrived at the neighbor’s home as Officer Newton

finished interviewing Thompson’s daughter. Officer Newton told Sergeant Bryant




                                           2
that he was ready to speak with Thompson. The officers drove their vehicles the

short distance and parked them on the street in front of Thompson’s home.

      Sergeant Bryant followed Officer Newton to Thompson’s front porch.

Thompson met them at the open front door and stood just inside the threshold as he

responded to the officers’ questions. Officer Newton asked Thompson to give his

account of the incident. Thompson admitted to having argued with his daughter and

bitten her forearm. Officer Newton informed Thompson that he was under arrest and

would be taken into custody.

       Thompson asked if he could lock up the house, saying that he would lock the

front door and come out the side door. As Thompson began to pull the door shut, the

officers ordered him not to go back inside and told him that he needed to step outside

the doorway and onto the front porch. Officer Newton shouted “no!” several times

as he and Sergeant Bryant pushed on the door to keep Thompson from closing it.

When they opened the door, they saw Thompson had bent over and clenched his

hands into fists.

      As Thompson charged at the officers, he punched Officer Newton in the face.

Officer Newton stumbled but quickly regained his balance. Then, he and Sergeant

Bryant grabbed Thompson and forced him to the floor of the front porch. The

officers tried to place handcuffs on Thompson, but he stood up and moved away

from them before they could be fastened. The officers wrestled with Thompson in


                                          3
the front yard as he resisted the officers’ efforts to gain control. Officer Newton

decided to use his taser. He shouted “TASE” three times, then used the taser on

Thompson. Thompson fell to the ground, but when the shock ended five seconds

later, he tried to stand up again. Officer Newton warned Thompson that he would

tase him again if he continued to resist. Thompson did not heed the warning. After

Officer Newton used the taser a second time, the officers were able to place

handcuffs on Thompson.

      The dashboard camera on Officer Newton’s vehicle recorded the interaction

with Thompson. The camera was not within range of Thompson’s front door, so the

State presented only audio of the portion that occurred there. It presented both audio

and video of the struggle that took place in Thompson’s front yard.

      A Brazoria County grand jury indicted Thompson, charging that he

      did then and there intentionally, knowingly, or recklessly cause bodily
      injury to John Newton by hitting John Newton with the defendant’s
      hand, and the defendant did then and there know that the said John
      Newton was then and there a public servant, to-wit: a peace officer, and
      that the said public servant was then and there lawfully discharging an
      official duty.

                               DISCUSSION

I.    Evidentiary Sufficiency

      Thompson challenges the sufficiency of the evidence to support two elements

essential to prove assault of a public servant: proof that the officer suffered bodily

injury and that the officer was lawfully discharging an official duty.
                                          4
          A.    Standard of review

      In a criminal appeal, we review the defendant’s challenge to sufficiency of the

evidence supporting jury findings under the standard set forth in Jackson v. Virginia.

See 443 U.S. 307, 319–22 (1979); Brooks v. State, 323 S.W. 3d 893, 902 (Tex. Crim.

App. 2010). Under it, we examine all the evidence in the light most favorable to the

verdict and determine whether a rational factfinder could have found the challenged

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19.

We measure the evidence “by the elements of the offense as defined by the

hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).

      The jury is the sole judge of the credibility of the witnesses and we do not

usurp this role by substituting our judgment for that of the jury. Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may believe or disbelieve

all or any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991). We presume that the factfinder resolved any inconsistencies

in the evidence in favor of the verdict, and we defer to that resolution. See Brooks,

323 S.W.3d at 922. As a reviewing court, we may not re-evaluate the evidence’s

weight and credibility or substitute our judgment for the factfinder’s. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Circumstantial evidence is as

probative as direct evidence in establishing guilt, and circumstantial evidence alone


                                          5
can suffice to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim.

App. 2011); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      B.     Assault of a public servant

      An actor commits the misdemeanor offense of assault when the actor

“intentionally, knowingly, or recklessly causes bodily injury to another.” TEX.

PENAL CODE § 22.01(a)(1). This offense becomes a third-degree felony, as charged

in this case, if it is committed against “a person the actor knows is a public servant

while the public servant is lawfully discharging an official duty.” Id. § 22.01(b)(1).

The offense of assault of a public servant thus requires the State to prove, in addition

to misdemeanor assault, that:

      1. the person assaulted was a public servant;
      2. the actor knew that the person he assaulted was a public servant;
      3. the person assaulted was discharging official duties at the time of the
         assault;
      4. the person assaulted was lawfully discharging official duties.

Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005).

      A “public servant” is a person elected, selected, appointed, employed, or

otherwise designated as an officer, employee, or agent of government. TEX. PENAL

CODE § 1.07(a)(41)(A). An officer is lawfully discharging his official duties if the

officer is acting within his capacity as a peace officer. Guerra v. State, 771 S.W.2d

453, 461 (Tex. Crim. App. 1988); Johnson v. State, 172 S.W.3d 6, 11 (Tex. App.—

Austin 2005, pet. ref’d). Whether the police officer lawfully arrested or detained a
                                           6
person is not relevant to whether the officer is lawfully discharging an official duty.

Hall, 158 S.W.3d at 474–75; Hughes v. State, 897 S.W.2d 285, 297–98 (Tex. Crim.

App. 1994); see Mays v. State, 318 S.W.3d 368, 388 (Tex. Crim. App. 2010)

(quoting Montoya v. State, 774 S.W.2d 15, 29 (Tex. Crim. App. 1987), overruled on

other grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996)). The

officer is lawfully discharging his official duties as long as the officer is not

criminally or tortiously abusing his office, such as by committing official

oppression, violating the civil rights of a person in custody, or using unlawful,

unjustified force. Hall, 158 S.W.3d at 474–75. Circumstances relevant to finding

whether an officer was acting within his official capacity include whether the officer

was in uniform, on duty, and on regular patrol when the assault occurred. Hughes,

897 S.W.2d at 298.

      C.     Analysis

      Thompson contends that the evidence is legally insufficient to prove that he

caused bodily injury to Officer Newton—an element of misdemeanor assault—and

the additional element that Officer Newton was lawfully discharging his official

duties when the assault occurred.

      As result-oriented assaultive offense, the actus reus for bodily-injury assault

is causing the bodily injury; the specific act or the nature of the defendant’s conduct

that caused the bodily injury does not matter. Landrian v. State, 268 S.W.3d 532,


                                          7
537 (Tex. Crim. App. 2008). The evidence thus must prove only that the defendant’s

conduct, accompanied by the required level of intent, caused the bodily injury. Id.

As Thompson acknowledges, the Texas Court of Criminal Appeals has broadly

interpreted “bodily injury” in the context of misdemeanor assault 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).

      Officer Newton testified that Thompson clenched his hands into fists, charged

at him, and hit him in the face. Evidence adduced at trial included medical records

and photographs of Officer Newton’s face showing a mark under his right

cheekbone. EMS records made in connection with Officer Newton’s medical

treatment shortly after the incident describe a contusion on Officer Newton’s right

cheek. Officer Newton confirmed that the photos of the right side of his face were

taken later the same day and accurately show his appearance shortly after the

incident. He testified that Thompson’s punch caused him pain and described the

mark it left on his cheek as red and purple from bruising. We hold that on this

evidence, a rational factfinder could have found beyond a reasonable doubt that

Thompson caused bodily injury to Officer Newton.

      In challenging the legal sufficiency of the evidence that Officer Newton was

lawfully discharging his official duties when the assault occurred, Thompson points

to his own testimony concerning a 2013 car accident in Freeport, in which Officer


                                        8
Newton’s police vehicle rear-ended Thompson’s car. According to Thompson,

Officer Newton, who was responsible for the accident, threatened Thompson that if

Officer Newton saw him again, he would arrest Thompson “by any and all means

necessary.”

      This testimony concerning Officer Newton’s purported motive to arrest

Thompson, however, does not constitute evidence that Officer Newton was not

lawfully discharging his official duties when he arrested Thompson in November

2015. See Hall, 158 S.W.3d at 474–75 (explaining that officer who does not

criminally or tortiously abuse office, i.e., does not commit official oppression,

violate civil rights of person in custody, or use unlawful, unjustified force, is lawfully

discharging official duties). Viewing the evidence in the light most favorable to the

verdict, Officer Newton was on duty and in uniform when he was dispatched to

investigate a complaint of family violence from Thompson’s adult daughter. After

Thompson admitted to having bitten his daughter’s arm, Officer Newton told

Thompson that he would be arrested and taken into custody. Thompson failed to

comply with the officers’ orders to stop closing his front door and step outside and,

when the officers managed to force the door open, Thompson lunged toward them

and punched Officer Newton in the face. The jury was free to disbelieve Thompson’s

testimony that he did not intend to hit Officer Newton and fell toward the officer

because he was off balance. See Montgomery, 369 S.W.3d at 192. As a result, we


                                            9
hold that the evidence is legally sufficient to support the jury’s finding that Officer

Newton was lawfully discharging his official duties when Thompson caused the

bodily injury.

II.   Exclusion of Evidence

      A.     Standard of review

      Claiming that Officer Newton’s firing from the Freeport Police Department

after the 2013 car accident gave Officer Newton a motive to falsely accuse

Thompson of assaulting him, Thompson contends that the trial court violated his

right under the Confrontation Clause of the Sixth Amendment to the United States

Constitution by excluding Thompson’s proffered testimony on that issue. We

review a trial court’s ruling on the admission or exclusion of evidence for an abuse

of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We

will uphold the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at 22. We will

uphold the trial court’s ruling if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845

(Tex. Crim. App. 2002).




                                           10
      B.     Preservation of error

      The State responds that Thompson failed to preserve his constitutional

challenge to the exclusion of this evidence for appellate review. To preserve a claim

of error, an appellant must make a timely, specific request, objection, or motion. See

TEX. R. APP. P. 33.1. This requirement applies with equal force to constitutional

challenges: a defendant wishing to preserve an argument that the exclusion of

evidence violates constitutional principles must make a timely objection stating the

grounds for the ruling that he seeks with sufficient specificity to make the trial court

aware of these grounds. Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim.

App. 2018) (holding that defendant failed to preserve Confrontation Clause

challenge where record showed he sought admission of testimony based only on

relevance) (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).

      Thompson made an offer of proof as to his testimony concerning Officer

Newton’s employment in Freeport.1 See Alfaro v. State, 224 S.W.3d 426, 433 (Tex.

App.—Houston [1st Dist.] 2006, no pet.); TEX. R. EVID. 103(a)(2). At the end of

Thompson’s proffered testimony, the State told the trial court that it had no objection

to testimony concerning Officer Newton’s purported threat, but that it did object on


1
      At the beginning of trial, the trial court allowed defense counsel to question Officer
      Newton about his recollection of the accident but did not permit questioning about
      any alleged threat made to Thompson, a condition that the trial court made subject
      to reconsideration in a later hearing if warranted. The record shows no attempt to
      seek a later hearing or otherwise revisit this issue.
                                            11
relevance grounds to the statements about Officer Newton’s prior employment with

the FPD. Thompson’s appellate brief suggests that the trial court erred in sustaining

the State’s relevance objection, but Thompson did not challenge that ruling or ask

the trial court to reconsider it at the time. On the contrary, Thompson’s trial counsel

assured the court that he “wasn’t going to ask” Thompson about Freeport, would

“stay away from that [topic]” in questioning Thompson, and would advise

Thompson to stay away from it as well. The trial court asked Thompson if he

understood, and Thompson agreed that he did. Thompson’s testimony before the

jury did not raise the issue. We therefore hold that Thompson failed to preserve his

Confrontation Clause challenge for appellate review. See TEX. R. APP. P. 33.1.

                                  CONCLUSION

       We reinstate the appeal on this court’s active docket and affirm the judgment

of the trial court.




                                                Gordon Goodman
                                                Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           12
