                                  NO. 07-10-00116-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JANUARY 19, 2011


                              JASON GOMEZ, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


                FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

             NO. B17957-0902; HONORABLE EDWARD LEE SELF, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION

      Appellant, Jason Gomez, was convicted of harassment of a public servant,1

enhanced by allegations of two prior felony convictions.2 The jury found appellant guilty

and the enhancement allegations true. The jury assessed appellant’s punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice for

a term of 60 years. Appellant appeals contending that the evidence was insufficient and




      1
          See TEX. PENAL CODE ANN. § 22.11(a)(2) (West Supp. 2010).
      2
          See Id. § 12.42(d) (West Supp. 2010).
that the sentence was grossly disproportionate. We reverse based on the conclusion

that the evidence was insufficient.


                          Factual and Procedural Background


       On December 10, 2008, Plainview police officer Timothy De Leon responded to a

reported domestic dispute at a residence in Plainview. Upon arriving on the scene, De

Leon observed appellant standing in the front yard of the residence arguing with another

man. The other man turned out to be appellant’s father. Additionally, De Leon noticed

a glass door appeared to be broken and appellant’s arm appeared to be cut. De Leon

called for an ambulance and approached appellant.          While De Leon called for an

ambulance, appellant’s father went back inside the residence. De Leon attempted to

interview appellant about what had occurred. However, appellant refused to talk to De

Leon and attempted to go back in the house.


       De Leon told appellant to stay where he was and again attempted to question

him about what had happened at the residence. Again, appellant ignored the request to

stay outside and attempted to go back into the house. De Leon positioned himself

between the house and appellant and again advised appellant to stay outside.

Appellant then attempted to push De Leon aside and go into the house. Once again,

De Leon positioned himself between the house and appellant, and De Leon indicated

that he was going to arrest appellant for assault. Appellant tried to push by De Leon

once more. By this time, a second Plainview police officer had arrived on the scene,

and this officer fired his taser at appellant, causing appellant to collapse to the ground.

As De Leon was taking appellant into custody, De Leon realized that he had blood on

                                            2
his face and uniform. Based on appellant’s encounter with De Leon appellant was

indicted for harassment of a public servant.


       At trial, De Leon testified about his encounter with appellant. Additionally, the

State introduced a series of photographs that depicted the injuries to appellant on the

night in question. These pictures demonstrated that appellant was bleeding significantly

at the time of his encounter with De Leon. Based upon this evidence, the jury found

appellant guilty.


       Appellant appeals contending that the evidence is legally and factually

insufficient to demonstrate that appellant caused De Leon to come into contact with his

blood with the intent to assault. Additionally, appellant contends that the punishment

assessed is grossly disproportionate. We agree with appellant that the evidence is

insufficient and reverse and render a judgment of acquittal.


                                 Evidentiary Sufficiency


       As an initial consideration, we observe that appellant's appeal contends that the

evidence is both legally and factually insufficient. Appellant's brief was prepared and

filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,

No. PD-0210-09, 323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240, at *25-*26

(Tex.Crim.App. Oct. 6, 2010), wherein the court ruled that there is no distinction

between a claim of legal as opposed to factual insufficiency of the evidence. Further,

the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996),

and its purported application to factual sufficiency questions. Id. at *57. The court

appears to urge the reviewing court to apply a more rigorous application of the
                                               3
sufficiency test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). See id. at *58. Therefore, we will review appellant's claims of evidentiary

sufficiency under the standard of review set forth in Jackson. See 443 U.S. at 319.


Standard of Review


       In assessing the 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,

443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004).              We

measure the legal sufficiency of the evidence against a hypothetically correct jury

charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when

reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See Brooks, 2010

Tex.Crim.App. LEXIS 1240, at *37 (discussing Judge Cochran’s dissent in Watson v.

State, 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006), as outlining the proper

application of a single evidentiary standard of review).3


Analysis


       In order to prove appellant guilty of the offense of harassment of a public servant,

the State had to prove:


       3
         We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
We view such a statement, insofar as a modicum of evidence being sufficient evidence,
as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
                                             4
          1. Appellant

          2. on or about December 10, 2008,

          3. with intent to assault, harass, or alarm

          4. cause Timothy De Leon

          5. a person appellant knew to be a public servant, a peace officer

          6. to contact the blood of appellant

          7. and De Leon was then and there lawfully discharging an official duty, to-wit:

              attempting to detain appellant.


Appellant contends that the evidence is insufficient as to the mens rea element of the

offense. Specifically, appellant contends that the statute requires that the State prove

that appellant caused De Leon to contact the blood with intent to assault, harass or

annoy.


          The Texas Penal Code provides that there are four culpable mental states in our

penal laws. See TEX. PENAL CODE ANN. § 6.02(d) (West Supp. 2010).4 Those are

intentional, knowing, reckless, and criminally negligent. See id. In assessing how the

mens rea required by a statute is tailored to determine the type of offense involved, an

assessment must be made as to the nature of the offense. The categories are nature-

of-the-conduct offense, a circumstance-surrounding the conduct offense, or a result-of-

conduct offense. See Hill v. State, 265 S.W.3d 539, 541 (Houston [1st Dist.] 2008, pet.

ref’d).



          4
        Further reference to the Texas Penal Code will be by reference to “section ___”
or “§ ___.”
                                                 5
       While discussing result-of-conduct cases, Hill points out that a majority of assault

cases and homicide offenses are result-of-conduct cases and as such do not specify

the nature of conduct barred.         Id. at 542.   Further, the nature of the conduct is

inconsequential to the commission of the crime, rather, what matters is that the conduct

is done with the required culpability to effect the result that the Legislature had

specified. Id.


       Section 22.11 uses the phrase “with intent to assault, harass or alarm” when

describing the actions of a perpetrator of this type of assault. § 22.11(a). In contrast,

other sections in the Texas Penal Code chapter dealing with assaultive offenses use

phrases such as “intentionally, knowingly, or recklessly,” or “intentionally or knowingly.”

See § 22.01(a)(1)-(3).


       Section 6.03(a) states that:

       A person acts intentionally, or with intent, with respect to the nature of his
       conduct or to a result of his conduct when it is his conscious objective or
       desire to engage in the conduct or cause the result.

Id. § 6.03 (West 2003).


Thus, when the analysis of the Hill opinion is applied to the allegations and facts of this

case, it is apparent that the assault charged is a result-oriented offense. This is so

because the accused must, with intent to assault, harass, or alarm the complainant,

cause bodily fluids to actually contact the complainant.        See Herrera v.State, 915

S.W.2d 94, 97 (Tex.App.—San Antonio 1996, no pet.) (citing McQueen v. State, 781

S.W.2d 600, 603 (Tex.Crim.App. 1989)). In construing this statute, the Corpus Christi

Court of Appeals so found and stated, “In other words, the State was required to prove

                                              6
that [appellant] (1) intended to cause urine to contact Martinez, and (2) intended to

harass, alarm or annoy Martinez.” Wyatt v. State, No. 13-07-467-CR, 2008 Tex.App.

LEXIS 8080, at *8 (Tex.App.—Corpus Christi, Oct. 23, 2008, no pet.) (mem. op. on

reh’g., not designated for publication). Wyatt involved a situation in which the inmate

threw urine from a cup onto a corrections guard. Id. at *3. While we agree with the

result reached in the Wyatt case, we do not subscribe to our sister court’s analysis of

the intent requirement.


      The evidence in this record shows that when De Leon arrived on a domestic

disturbance call, appellant had already been injured. De Leon testified that one of the

primary issues in dealing with this type of disturbance call was to keep the parties

separated. Therefore, when De Leon saw that appellant’s father had gone inside, he

made the decision to keep appellant outside. Because appellant wanted to return inside

the house, there was a confrontation between appellant and De Leon. The assault

occurred when appellant attempted on two or more occasions to go past De Leon into

the house. De Leon’s testimony reflected that appellant attempted to push and shove

De Leon out of the way so that he could go inside. Appellant was bleeding extensively

before he ever pushed or shoved De Leon. No one testified that appellant made any

attempt to collect the blood and then throw it on De Leon. Nor did anyone testify that

appellant verbally threatened to throw or wipe blood on De Leon.         At most, the

testimony revealed that the blood got on De Leon when appellant attempted to go past

De Leon to get in the house.      That appellant’s pushing and shoving of De Leon

amounted to an assault is not the question. There was a completed assault the first

time appellant shoved and pushed De Leon. There is simply no evidence that appellant
                                          7
intended to assault, harass or alarm De Leon by causing the blood to contact De Leon.

Therefore, the evidence is insufficient to sustain the judgment of the trial court. See

Herrera, 915 S.W.2d at 97. Application of the principles set forth in Jackson, 443 U.S.

at 319, and Ross v. State, 133 S.W.3d at 620, lead to the inescapable conclusion that

no rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Appellant’s first issue is sustained.


      The State vigorously argues that the evidence is sufficient.       To support this

position, the State cites this court to Campbell v. State, No. 14-04-0227-CR, No. 14-04-

0228-CR, 2005 Tex.App. LEXIS 7701 (Tex.App.—Houston [14th Dist.] Sept. 20, 2005,

pet. ref’d) (mem. op., not designated for publication), and Jones v. State, No. 01-02-

0057-CR, 2002 Tex.App. LEXIS 4611 (Tex.App.—Houston [1st Dist.] June 27, 2002,

pet. ref’d) (not designated for publication), for the proposition that the jury can infer

intent from an appellant’s acts, words, or conduct surrounding the incident. However,

each of the cases cited for such inference are cases where the mens rea included

additional elements, such as knowingly in the Campbell case and knowingly or

recklessly in the Jones case. Therefore, the jury was able to consider the conduct

surrounding the event and there was testimony that supported its consideration. In

Campbell, the testimony revealed that appellant knew one officer was holding on to the

door handle of appellant’s car and another was partially in appellant’s car as appellant

attempted to flee into the face of oncoming traffic. Campbell, 2005 Tex.App. LEXIS

7701, at * 7, * 8. In Jones, appellant contested the sufficiency of the evidence to show

that he intentionally, knowingly, or recklessly caused bodily injury to the victim. Jones,

2002 Tex.App. LEXIS 4611, at *3. The evidence showed that the victim was standing
                                            8
directly in front of appellant when appellant shoved a shopping cart directly at the victim,

resulting in a knot on the victim’s leg with broken skin and bleeding. Id. Appellant in

Jones claimed that he pushed the cart to get away but never intended to hurt the victim.

Id. at *4. Because the required mens rea was reckless, there was sufficient proof that

appellant was aware his conduct would cause the victim physical pain, hence bodily

injury. Id. at *7. As can be seen by the above recitations, the Campbell and Jones

cases are distinguishable from the facts presented to this Court. Both cases examine

different mens rea from the instant case, with lower thresholds of culpability and more

significant testimony for the jury to infer that the required mens rea was present.


       Because of our holding regarding the sufficiency of the evidence, we need not

reach appellant’s second issue.


                                        Conclusion


       The judgment of the trial court is reversed, and a judgment of acquittal is

rendered.


                                                        Mackey K. Hancock
                                                             Justice


Publish.




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