                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 BRENDA GUADALUPE TREVINO,                        §               No. 08-14-00216-CR
                              Appellant,          §                  Appeal from the
 v.                                               §          County Criminal Court at Law
 THE STATE OF TEXAS,                                                  Number Two
                                                  §
                                                                of El Paso County, Texas
                              Appellee.           §
                                                                  (TC# 20140C02462)
                                                  §

                                           OPINION

       Appellant was convicted by a jury of Interference with Public Duties, a Class B

misdemeanor, and sentenced by the trial court to one day in jail. On appeal, Appellant contends

the evidence is insufficient to support her conviction and that the trial court failed to instruct the

jury sua sponte on the statutory speech-only defense. We affirm.

                                          BACKGROUND

       On November 29, 2013, a 911 dispatcher received a report that Appellant’s 17-year-old

sister was threatening suicide and had a knife. El Paso Police Officer James O’Connor was

dispatched to the home. The jury heard three different versions of what occurred at the residence.

                                 Officer O’Connor’s Testimony
       Officer O’Connor testified that Appellant’s mother met him at the front door of the

family’s residence. The mother told Officer O’Connor that she and Appellant’s sister had been

arguing over the sister’s boyfriend, and that the sister had taken a kitchen knife into her bedroom

and was threatening to cut herself. The mother directed Officer O’Connor to the bedroom, where

he observed Appellant and her sister sitting together on the edge of a bed, conversing in Spanish.

The sister had one of her arms hidden under a blanket, and Officer O’Connor was concerned she

might be holding the knife with that arm.

       Officer O’Connor, who was in full police uniform, stood at the doorway and identified

himself, stating in English that he needed to speak with the sister. After being ignored twice,

O’Connor repeated his statement in Spanish. Appellant made eye contact, then turned her head,

rolled her eyes, and continued her conversation with her sister.

       Shortly thereafter another officer arrived at the scene, and once again Officer O’Connor

announced that he needed to speak with the sister. At that point, Appellant rose from the bed and

left the room. Both officers entered the room, and Officer O’Connor spoke with the sister and

asked her where the knife was. Officer O’Connor testified that because the sister’s arm was still

hidden under the blanket and the knife had not yet been located, each officer grabbed one of the

sister’s arms, placed her on the ground, and handcuffed her out of concern for both their safety and

her safety.

       At the time, Appellant was in the hallway outside the bedroom door, yelling in both

English and Spanish that the officers were “abusing” her sister, and shouting at her younger sister

to record the incident on a cell phone. As the officers began to escort the sister from the bedroom,

Appellant planted herself in the door frame with her legs out forming an “X” and blocking the


                                                 2
officers, and stated:   “You’re not taking my sister[.]”       Appellant initially refused Officer

O’Connor’s request to remove herself from the doorway, but eventually moved away when

another family member handed her a cell phone. As Appellant was attempting to set up the cell

phone to record the incident, the officers were able to take Appellant’s sister out of the bedroom

and escort her down the hallway toward the front door.

       As the officers were walking through the hallway, however, Appellant approached from

the opposite direction, and according to Officer O’Connor, extended out her arms and pushed him

in his chest. Officer O’Connor testified this caught him off guard, threw him off balance, and

knocked him backward. Even when requested, Appellant refused to take her hands off Officer

O’Connor. Appellant continued to push Officer O’Connor backward, and said she would not let

the officers take her sister from the home. Officer O’Connor pushed forward, however, using the

force of his own chest to pass by Appellant. Appellant, who was wearing high heels, tripped,

causing her to step out of the way, which allowed the officers to continue toward the front door.

However, Appellant once again confronted the officers and blocked the front doorway. Officer

O’Connor warned Appellant to move out of the away. He then physically moved Appellant,

placed her on a nearby chair, and ordered her to remain there, which allowed the other officer to

exit the residence with Appellant’s sister. Officer O’Connor acknowledged that he had used force

in placing Appellant on the chair, but denied that he had injured her in the process.

       Appellant’s mother requested that the officers transport Appellant’s sister to University

Behavioral Health, a mental health facility in El Paso, and Officer O’Connor exited the home to

interview Appellant’s sister who was now waiting in his patrol car. During the interview, the

sister admitted that she had initially taken a knife from the family’s kitchen, but claimed that she


                                                 3
had thrown it away somewhere in the residence before entering her bedroom. Officer O’Connor

visually determined that she did not have a weapon. He then started drafting a request for an

emergency detention order, and subsequently transported Appellant’s sister to the hospital in his

patrol car.

                             The Testimony of Appellant’s Mother

        Appellant’s mother testified that her 17-year-old daughter suffers from bipolar depression,

and that she had taken a knife from the kitchen and had gone to her bedroom and locked the door.

She and other family members became concerned that the Appellant’s sister might harm herself,

prompting her 13-year-old daughter to call the police. The mother testified that when Officer

O’Connor arrived at the residence, he initially advised her that he did not speak Spanish. She

escorted Officer O’Connor to the bedroom where Appellant was speaking with her sister.

According to the mother, Officer O’Connor asked her in English which of the two daughters had a

knife, and she pointed to Appellant’s sister. According to the mother, Officer O’Connor, with no

apparent warning, then pushed Appellant toward the hallway, causing her to hit her arm on the

door frame or wall.

        The mother recalled that Officer O’Connor then told her and the other family members to

leave the bedroom, and they retreated to the dining room. While in the dining room, she claimed

she observed Officer O’Connor push Appellant a second time while he was escorting Appellant’s

sister out of the bedroom into the hallway.

                                     Appellant’s Testimony

        Appellant testified and presented a third version of what occurred that morning.

Appellant acknowledged that her sister suffers from mental issues, that the police had been called


                                                 4
to the residence on prior occasions due to her behavioral problems, and on that this particular

occasion, the family had seen her sister take a knife from the kitchen, prompting her 13-year-old

sister to call the police. Appellant recalled, however, that her mother had already taken the knife

away from her sister before the officers arrived.

       Appellant also acknowledged that she was in the bedroom speaking with her sister when

Officer O’Connor arrived. She further acknowledged that Officer O’Connor was in full uniform

and that she recognized him to be a police officer when her mother escorted him to the bedroom.

She claimed, however, that her mother then left the bedroom, and that Officer O’Connor stood

silently in the doorway for three to five minutes until she finished speaking with her sister, after

which she voluntarily got up and left the room. Appellant testified that she then heard her sister

scream and returned to the bedroom, and observed Officer O’Connor holding her sister’s arms

behind her back. She told Officer O’Connor, in Spanish, that he “couldn’t do what he was doing

to her.” According to Appellant, Officer O’Connor did not respond and instead grabbed her by

the arm and pushed her down the hallway, while at the same time holding her sister with his other

arm.

       Around this same time, Appellant recalled, her 13-year-old sister appeared with a cell

phone, and at her request, began recording the scene. Appellant claimed that Officer O’Connor,

while still holding her sister with one arm, used his free arm to grab the cell phone away from her

younger sister and threw it to the ground in an apparent attempt to prevent her younger sister from

recording the incident. Although Appellant’s sequence of events was somewhat confusing, she

recalled that at some point, she protested that Officer O’Connor was using excessive force on her

sister, prompting Officer O’Connor to transfer custody of her sister to the other officer. Appellant


                                                    5
claimed that Officer O’Connor then grabbed her by the arm and pushed her, causing her to hit the

dining room table, after which she fell “down to the chair and from the chair to the floor.”

          Appellant denied that she interfered with or impeded the officers that morning, and

testified that Officer O’Connor was the aggressor in the situation. Appellant further claimed that

she did not know any English, and that Officer O’Connor only spoke to her in English, implying

that she may not have understood what was occurring when Officer O’Connor arrived at the

scene.1

          After the officers had exited the residence with her sister, Appellant contacted 911 and

requested that a Spanish-speaking officer be dispatched to the residence. Shortly thereafter,

Officer O’Connor’s supervisor arrived and spoke with both Officer O’Connor and Appellant.

According to Appellant, she informed the supervisor that she believed Officer O’Connor had used

excessive force against her and her sister. The supervisor advised her of her right to file a

complaint against Officer O’Connor, but at the time, Appellant did not believe she had sufficient

proof to establish that the officer had abused her. Appellant explained, however, that she later

changed her mind and decided to file a complaint against Officer O’Connor after she realized that

his treatment of her had left bruises on her arms and leg, and after she found out that Officer

O’Connor had “placed charges” against her for interfering with the performance of his duties.

Appellant filed a complaint against Officer O’Connor two days after her arrest, claiming that he

had used excessive force. The complaint was investigated by the El Paso Police Department’s

internal affairs division and was determined to be unfounded.


1
  Officer O’Connor testified in Spanish when recalling his conversations with Appellant’s mother. Appellant
acknowledged that she heard Officer O’Connor speak Spanish on the witness stand. Appellant’s mother provided
confusing testimony on the subject, first testifying that all of her daughters knew English, but later testifying that
Appellant did not speak much English and mainly communicated in Spanish.
                                                          6
                                 The Charges Against Appellant

       While still at the scene, Officer O’Connor informed his supervisor that he believed

Appellant had “impeded’ and “interfered” with his investigation. Officer O’Connor testified that

he did not want to arrest Appellant immediately for that offense, but rather wanted a neutral

magistrate to determine if probable cause existed for her arrest. Appellant was thereafter arrested

on a warrant issued by a magistrate, and charged with the Class B misdemeanor offense of

Interference with Public Duties in violation of Section 38.15 of the Texas Penal Code. In

particular, the information alleged that while Officer O’Connor was “performing a duty or

exercising authority imposed or granted by law, to-wit: conducting an investigation, [Appellant]

with criminal negligence [did] interrupt, disrupt, impede, or interfere with the said James

O’Connor by pushing the said James O’Connor[.]”

                                          DISCUSSION

                  The Evidence was Sufficient to Support the Jury’s Verdict

       In her first issue, Appellant contends the evidence was insufficient to support the jury’s

verdict, claiming that the State presented no evidence that Officer O’Connor was conducting an

“investigation” pursuant to a duty imposed by law at the time she allegedly pushed him as alleged

in the information.

                                        Standard of Review

       We review sufficiency complaints under the legal sufficiency standard enunciated in

Jackson v. Virginia. Fernandez v. State, 479 S.W.3d 835, 837 (Tex.Crim.App. 2016); Brooks v.

State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). The relevant inquiry is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could


                                                 7
have found the essential elements of the crime beyond a reasonable doubt.” Fernandez, 479

S.W.3d at 837–38 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). If a rational fact finder could have so found, we will not disturb the verdict on appeal.

Id. at 838; see also Temple v. State, 390 S.W.3d 341, 363 (Tex.Crim.App. 2013).

        Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs v. State, 434 S.W.3d

166, 170 (Tex.Crim.App. 2014). The jury is the sole judge of credibility and weight to be

attached to the testimony of witnesses. Id. at 170 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at

2789). When the record supports conflicting inferences, we presume that the jury resolved the

conflicts in favor of the verdict, and we defer to that determination. Id.; see also Clayton v. State,

235 S.W.3d 772, 778 n.12 (Tex.Crim.App. 2007) (observing that it is the fact finder’s duty “to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts”).

                                          Applicable Law

        The offense of Interference with Public Duties is defined in Section 38.15 of the Texas

Penal Code in relevant part as:

        (a) A person commits an offense if the person with criminal negligence interrupts,
        disrupts, impedes, or otherwise interferes with:

                (1) a peace officer while the peace officer is performing a duty or
                exercising authority imposed or granted by law; . . . or

                (7) a person who . . . is performing a duty or exercising authority
                imposed or granted under the . . . Health and Safety Code[.]

TEX. PENAL CODE ANN. § 38.15(a) (West 2016). As Appellant correctly points out, the State is

bound to prove its case by presenting evidence to support the charge as alleged in the information.

                                                  8
See Carney v. State, 31 S.W.3d 392, 396 (Tex.App. – Austin 2000, no pet.) (where State alleged

that the defendant had interfered with an officer’s duties by “blocking entry into a residence,” the

State was required to prove that the defendant committed the offense in the particular manner and

means as alleged in the indictment); see also Avery v. State, 359 S.W.3d 230, 237 (Tex.Crim.App.

2012) (citing Cada v. State, 334 S.W.3d 766, 776 (Tex.Crim.App. 2011) (the State must prove the

offense as charged, and may not prove its allegations by proof of a “different, uncharged, manner

and means” of committing the offense)).

         The information expressly alleged that Appellant interfered with the performance of

Officer O’Connor’s duties by “pushing” him while he was “conducting an investigation[.]”

Therefore, in the present case, the State was required to prove that: (1) Appellant (2) with

criminal negligence (3) did interrupt, disrupt, impede or otherwise interfere with (4) Officer

O’Connor, a peace officer, (5) while he was performing a duty or exercising authority imposed or

granted by law (6) by pushing Officer O’Connor (7) while Officer O’Connor was conducting an

“investigation.” See Carney, 31 S.W.3d at 396 (setting forth elements of the offense).

                                                       Analysis

          Appellant claims the evidence was insufficient to show: (1) that Officer O’Connor was

performing a duty or exercising authority imposed or granted by law when the alleged interference

occurred; or (2) that Officer O’Connor was conducting an “investigation” pursuant to that

authority at the time of the alleged offense.2 In support of her argument, Appellant points out that


2
  Appellant also appears to contend the indictment did not provide sufficient notice of the offense charged, as it did not
adequately describe the nature of the duties that Officer O’Connor was performing or the nature of the “investigation”
that he was conducting at the time of the alleged offense. Appellant, however, did not raise that objection at trial, and
we decline to address it on appeal. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005) (“If the defendant does
not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on
which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity
and he may not raise the objection on appeal or in any other postconviction proceeding.”); see also Duffy v. State, 33
                                                            9
Officer O’Connor was not called to the family’s residence to investigate a crime, and that he was

instead there on what she describes as a “service” call to obtain an emergency detention order so

that he could transport her sister to a hospital for medical treatment. Appellant asserts that Officer

O’Connor merely “took a suicidal girl into custody without investigation,” and that the State

therefore did not present sufficient evidence to support its claim that he was conducting an

“investigation” authorized by law as alleged in the indictment. There are several problems with

Appellant’s argument.

         First, Appellant cites no authority for her apparent belief that the term “investigation” is

limited to only an investigation of a crime or Penal Code violation. The Penal Code does not

define the term “investigation,” and the jury was free to assign to the term its common and

ordinary meaning. See Alexander v. State, 906 S.W.2d 107, 111 (Tex.App. – Dallas 1995, no

pet.) (“[i]n the absence of a statutory definition, words are to be taken and understood in their

common and ordinary meanings[,]” and “[j]urors are presumed to know and apply such common

and ordinary meanings”) (citing Williams v. State, 674 S.W.2d 315, 322 (Tex.Crim.App. 1984),

and Cuevas v. State, 742 S.W.2d 331, 346 (Tex.Crim.App. 1987)). A criminal investigation is

but one of many types of investigations that a person may conduct. By definition, the term

“investigation” has a much broader meaning, including the act of inquiring into virtually any

matter. See, e.g., Investigation Definition, Webster’s New Universal Unabridged Dictionary 966

(2d ed. 1983) (defining “investigation” as a “careful search,” a “detailed examination,” and a

“systematic inquiry”).




S.W.3d 17, 26 (Tex.App. – El Paso 2000, no pet.) (appellant waived error where he failed to object to a defect in the
indictment prior to trial).
                                                         10
       More importantly, police officers are expressly tasked by statute to investigate more than

just crimes and Penal Code violations.          In particular, they are specifically tasked with

investigating emergency situations in which a person with a mental illness is threatening to harm

themselves. Section 573.001 of the Texas Health and Safety Code allows a peace officer to take a

person into custody if he has reason to believe the person has a mental illness and there is a

substantial risk of serious harm to the person or others unless they are immediately restrained.

TEX. HEALTH & SAFETY CODE ANN. § 573.001(a) (West Supp. 2016). The statute further

provides that in determining whether there is a substantial risk of serious harm to the person or

others, a peace officer may consider a variety of factors, including the person’s behavior, evidence

of the person’s “severe emotional distress and deterioration in the person’s mental condition to the

extent that the person cannot remain at liberty.” Id. at § 573.001(b) (West Supp. 2016). The

statute also provides that the peace officer may form the belief that the person meets the criteria for

apprehension “from a representation of a credible person” or from “the conduct of the

apprehended person or the circumstances under which the apprehended person is found.” Id. at §

573.001(c) (West Supp. 2016). When a person is taken into custody under the above guidelines,

the peace officer is required to immediately transport the apprehended person to the nearest

appropriate mental health facility. Id. at § 573.001(d) (West Supp. 2016). The Health and

Safety Code further requires the officer to file a written application for an emergency detention

order, setting forth, among other things, the reasons why he believes the person is evidencing a

mental illness and why he believes the person poses a substantial threat to himself or others,

providing a “specific description of the risk of harm” and a “detailed description of the specific




                                                  11
behavior, acts, attempts, or threats,” in order to support his belief that a detention is necessary. Id.

at § 573.011 (West 2010).

       Accordingly, the Health and Safety Code imposes a duty on a peace officer to investigate

the circumstances surrounding a mental health call prior to taking the subject into custody and

before transporting the subject to a mental health facility. Numerous courts have recognized that

peace officers are performing an official public duty when they act under the Health and Safety

Code, and in particular when they are determining whether there is probable cause to take a

potentially suicidal person into custody. See, e.g., Cantrell v. City of Murphy, 666 F.3d 911, 923

(5th Cir. 2012) (peace officers were entitled to qualified immunity for various alleged

constitutional violations where police officers acted lawfully in performing their duties under the

Health and Safety Code after determining there was probable cause to take a suicidal individual

into custody in order to seek an emergency detention order); see also Rice v. ReliaStar Life Ins.

Co., 770 F.3d 1122, 1132 (5th Cir. 2014) (holding that a police officer had qualified immunity

where he entered a home without a warrant to investigate a call involving a potential suicide and

had a reasonable belief there was an urgent ongoing emergency taking place); Rockwell v. Brown,

664 F.3d 985, 988 (5th Cir. 2011) (officers were entitled to qualified immunity where they were

conducting their duties in good faith in seeking to take a mentally ill individual into custody after

the individual’s parents called 911 to report that their son was causing a disruption and acting

violently toward them, and after they expressed fear that he might harm himself).

       Further, courts have expressly referred to a police officer’s attempts to ascertain whether

probable cause exists for an emergency detention as being an “investigation.” See, e.g., Lawson

v. Marion County, Tex., No. 2:13-CV-00105-JRG, 2014 WL 5761121, at *4 (E.D. Tex. Nov. 5,


                                                  12
2014) (if a “concerned third party” informs peace officers that an individual is potentially suicidal

and the officers’ “subsequent investigation” supports a probable cause determination under Texas

law, the officers may lawfully take that person into custody); Beck v. State, No. 10-08-00365-CR,

2010 WL 3434075, at *4 (Tex.App. – Waco Sept. 1, 2010, pet. ref’d) (mem. op., not designated for

publication) (holding a peace officer called to a residence on a child welfare service call was

properly conducting an “investigation,” and the defendant, who allegedly tried to hide evidence in

the officer’s presence, could properly be charged with the criminal offense of tampering with

evidence while an “investigation . . . was in progress”). And finally, it has been recognized that a

peace officer has probable cause to arrest a suspect for interfering with a police investigation under

Section 38.15 of the Penal Code. See Pearlman v. City of Fort Worth, 400 Fed.Appx. 956, 959

(5th Cir. 2010) (where the suspect intervened with a police officer who had been conducting a

“welfare check” on the suspect’s niece); see also Yarbrough v. State, 429 S.W.3d 118, 124

(Tex.App. – Amarillo 2014, no pet.) (finding that defendant was properly convicted of interference

with public duties where defendant used force against police officer who was investigating a

domestic disturbance).

       The undisputed testimony in the present case demonstrated that Officer O’Connor had

been called to the family’s residence due to a report that Appellant’s sister had a knife and was

potentially suicidal. Officer O’Connor therefore had both a duty and the authority under the

Health and Safety Code to investigate to determine whether Appellant’s sister posed a “substantial

risk of serious harm to [herself] or to others,” and whether there was probable cause to seek an

emergency detention order and to take her into custody in order to transport her to a mental health

facility. In order to make this determination, Officer O’Connor testified that he spoke with the


                                                 13
mother to verify the facts that had been reported to the 911 dispatcher, and that he then entered the

bedroom to speak with Appellant’s sister to determine whether she had a weapon that would pose

a danger to herself or others. He further testified that he found it necessary to temporarily restrain

the sister before interviewing her, in order to ensure that she did not have a weapon that would

have posed a safety risk for all involved.

        However, before Officer O’Connor could complete his investigation and determine

whether there was probable cause to transport Appellant’s sister to a mental health facility or to

seek an emergency detention order as required by the Health and Safety Code, Appellant began

engaging in her obstructive conduct. When Officer O’Connor attempted to take Appellant’s

sister out of the residence in order to interview her in the safety of his patrol car, Appellant pushed

him in an attempt to block his exit from the residence. Because Officer O’Connor’s investigation

was still ongoing at the time Appellant pushed him in an attempt to impede his actions, we

conclude there was sufficient evidence that Appellant interfered with Officer O’Connor’s

investigation as alleged in the information. We overrule Issue One.

                        The Trial Court was not Required to Submit
                  Sua Sponte a Jury Instruction on the Speech-Only Defense

        In her second issue, Appellant complains the trial court did not instruct the jury on the

statutory speech-only defense contained in Section 38.15(d) of the Penal Code, which provides

that:   “It is a defense to prosecution under this section that the interruption, disruption,

impediment, or interference alleged consisted of speech only.”           TEX. PENAL CODE ANN. §

38.15(d) (West 2016). Appellant acknowledges that she did not request an instruction on the

speech-only defense, but contends the provision should be classified as the “law applicable to the

case,” and that the trial court therefore had a duty to instruct the jury sua sponte on that issue.

                                                  14
                                        Standard of Review

       Appellate review of purported error in a jury charge involves a two-step process. Kirsch

v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). We first determine whether error occurred;

if error did not occur, our analysis ends. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.

2005); Martinez v. State, No. 08-13-00363-CR, 2016 WL 2864952, at *6 (Tex.App. – El Paso May

13, 2016, no pet. h.) (not designated for publication). Second, if error occurred, we then evaluate

whether sufficient harm resulted from the error to require reversal. Kirsch, 357 S.W.3d at 649;

Ngo, 175 S.W.3d at 743; Martinez, 2016 WL 2864952, at *6.

                                          Applicable Law

       Article 36.14 of the Texas Code of Criminal Procedure requires the trial court to submit to

the jury a written charge “distinctly setting forth the law applicable to the case[.]” TEX. CODE

CRIM. PROC. ANN. art. 36.14 (West 2007). Article 36.14 further describes detailed methods by

which a party in a criminal case is entitled to object to the jury charge, adding that compliance with

those methods is “all that is necessary to preserve, for review, the exceptions and objections

presented to the charge and any amendment or modification thereof.” Id.

       In Posey v. State, the Court of Criminal Appeals interpreted Article 36.14 to determine

whether Article 36.14 requires that certain jury instructions be submitted even in the absence of a

request from a defendant.      In that case, the Court drew a distinction between instructions

pertaining to the “law applicable to the case,” which are required even in the absence of a request

from a defendant, and instructions on “defensive issues,” which are not required to be given absent

a request from the defendant. Posey v. State, 966 S.W.2d 57, 60-61 (Tex.Crim.App. 1998). In

reaching this conclusion, the Court found it significant that the decision to request an instruction


                                                 15
on a defensive issue is a discretionary “strategic” decision that is “generally left to the lawyer and

the client.” Id. at 63; see also Chase v. State, 448 S.W.3d 6, 12 n.27 (Tex.Crim.App. 2014)

(recognizing that the holding in Posey was based in part on the “idea that the decision to request a

defensive issue is a matter of trial strategy”). In addition, the Court pointed out that allowing a

trial court to instruct juries sua sponte on unrequested defensive issues could improperly “impose .

. . unwanted” defensive issues on defendants, and could ultimately place appellate courts in the

untenable position of hearing complaints on appeal about trial courts submitting unwanted jury

instructions. Posey, 966 S.W.2d at 63.

        The Court recognized that when a defendant requests a defensive instruction supported by

evidence, it becomes the law of the case, and the trial court must provide a proper instruction on

that issue. When no request is made, however, the trial court does not err in failing to give the

instruction. Id.; see also Vega v. State, 394 S.W.3d 514, 518-20 (Tex.Crim.App. 2013)

(re-affirming the holding in Posey that it is not error for the trial court to fail to instruct the jury sua

sponte on “defensive issues”).

                                                 Analysis

                                        Statutory Considerations

        We must decide whether the speech-only provision contained in Section 38.15 of the Penal

Code is either the “law applicable to the case,” invoking the trial court’s duty to sua sponte instruct

the jury, as argued by Appellant, or whether it is a “defensive issue,” invoking no such duty under

Posey, as argued by the State.

        The Court of Criminal Appeals provided a framework for making that decision in Taylor v.

State, 332 S.W.3d 483 (Tex.Crim.App. 2011). In Taylor, the defendant was accused of three


                                                    16
counts of aggravated sexual assault. Id. at 485. During trial, the State presented evidence of acts

that occurred before the defendant turned 17, despite that Section 8.07 of the Penal Code prohibits

the prosecution and conviction of offenses committed by a defendant before turning 17, except in

limited circumstances that did not apply to that case. Id. at 485-86. The defendant failed to

request a so-called “8.07(b)” instruction informing the jury that he could not be convicted of any

the acts committed when he was under the age of 17. Id. at 486. On appeal, the defendant

argued that the statutory prohibition was the law applicable to the case, thereby imposing a duty on

the trial court to give an instruction on the prohibition sua sponte. Id. at 486-87. The State, on

the other hand, argued that this was merely a defensive issue, and that under Posey the trial court

was not required to provide the instruction without a request. Id.

       The Court of Criminal Appeals agreed with the defendant that an 8.07(b) instruction was

“the law applicable to the case,” rather than a defensive issue. Id. at 489. In doing so, the Court

emphasized the importance of how the Legislature itself has categorized a particular issue. It

explained that in Posey, it had determined that a “mistake-of-fact” instruction was an “unrequested

defensive issue” in part because the Legislature expressly labeled it as a defense in Section 8.02(a)

of the Penal Code, which specifically referred to “mistake of fact” as a “defense to prosecution[.]”

The Court concluded that the Legislature’s use of this language in the statute “correlates to its

classification as a ‘defensive issue.’” Id. at 487. In contrast, the Court in Taylor found it

significant that Section 8.07(b) does not refer to a “defense” at all, but rather serves as a

“prohibition of prosecutions and convictions based upon offenses committed before the age of

seventeen.” Id.




                                                 17
       Appellant relies on Taylor to argue that the speech-only provision in Section 38.15 is also a

“prohibition” against prosecution, and that we should therefore classify an instruction on this

provision as the law applicable to the case, rather than a defensive issue. In Section 38.15(d),

however, the Legislature expressly referred to the speech-only provision as a “defense to

prosecution,” using language virtually identical to the “mistake-of-fact” statute in Posey, which

was found to relate to a “defensive issue.” Further, Section 2.03 of the Penal Code expressly

provides that a “defense to prosecution for an offense in this code is so labeled by the phrase: ‘It

is a defense to prosecution . . . .’” TEX. PENAL CODE ANN. § 2.03(a) (West 2011).

       Therefore, in light of the statutory language unambiguously designating the speech-only

provision as a defense to prosecution, we conclude that the Legislature intended for Section

38.15(d) to be a defensive issue.

                       The Discretionary Nature of the Speech-Only Defense

       Another key factor in determining whether an instruction relates to a defensive issue is

whether there may be “strategic” reasons defense counsel might not request the instruction, or

whether the instruction is in effect mandatory in nature. Taylor, 332 S.W.3d at 487 (citing Posey,

966 S.W.2d at 63) (“A feature of a defensive issue is that it is a strategic decision ‘generally left to

the lawyer and the client.’”). This concept is illustrated by comparing the instructions under

consideration in both Posey and Taylor. In Posey, the Court held that the mistake-of-fact

instruction involved a discretionary defensive issue, because it was up to defense counsel to

determine, as a matter of trial strategy, whether the instruction would benefit his client. Posey,

966 S.W.2d at 63. The Court pointed out that a defendant may make the strategic decision not to

request an instruction on a particular defense for a variety of reasons, citing the example of a case


                                                  18
in which the evidence on a particular defensive issue was so weak that the defendant would “risk

losing [his] credibility with the jury” if an instruction was given to the jury on that issue. Id. at 63.

        In contrast, in Taylor, the Court concluded that the question whether an 8.07(b) instruction

should be given does not involve a discretionary defensive issue, contingent upon the defendant’s

view of the case. Taylor, 332 S.W.3d at 487. Rather, the Court explained that because Section

8.07(b) serves as a complete bar to prosecution for acts committed under the age of 17, its

applicability is not contingent upon any party’s theory of the case. Id. (noting that it is “not within

the defendant’s (or counsel’s) discretion to decide whether or not he may be prosecuted for or

convicted of offenses committed before turning seventeen”). The Court therefore reasoned that

an 8.07(b) instruction is mandatory in all cases in which evidence of such acts has been introduced

at trial. Id.

        Appellant contends that, as in Taylor, the State is similarly barred from prosecuting a

defendant for offenses involving speech only, not only for statutory reasons but also for First

Amendment reasons as well. In particular, Appellant points out that in Carney, our sister court

recognized that even in the absence of the speech-only provision in the statute, “a verbal

interference with a public servant or officer could be defended on grounds of the First Amendment

to the United States Constitution.” Carney, 31 S.W.3d at 396 (citing City of Houston v. Hill, 482

U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). In Hill, the United States Supreme Court

struck down a Houston ordinance that was so broadly worded that it would have allowed a

defendant to be convicted solely for his speech in arguing with a peace officer, concluding that the

ordinance was therefore unconstitutional on its face. Hill, 482 U.S. at 461-62. In particular, the

Court recognized that “the First Amendment protects a significant amount of verbal criticism and


                                                   19
challenge directed at police officers,” and that the State may not typically punish a defendant for

“spoken words.” Id. Finding that the Houston ordinance allowed the State to prosecute and

convict a defendant for virtually any speech that interrupted a peace officer’s duties, the Court

concluded that the ordinance was overly broad, and therefore unconstitutional as a general

prohibition on speech. Id. at 462-63, 468-69.

       Section 38.15 avoids the constitutional deficiencies the Court found in the Houston

ordinance by including the speech-only provision in the statute. See Barnes v. State, 206 S.W.3d

601, 605-06 (Tex.Crim.App. 2006) (recognizing that the speech-only provision is derived from

First Amendment concerns).        The speech-only provision therefore provides valuable First

Amendment protections to a defendant, essentially barring or prohibiting prosecutions for

speech-only offenses. In particular, a defendant may not be arrested, charged, or convicted of

interfering with a peace officer’s duty unless there is some evidence that the defendant engaged in

some form of physical conduct, beyond mere speech, in interfering with a peace officer’s duties.

See, e.g. Freeman v. Gore, 483 F.3d 404, 414 (5th Cir. 2007) (in civil lawsuit brought by plaintiff

for unlawful arrest, the court concluded that the police officers did not have probable cause to

arrest the plaintiff for interference with public duties where the police officers only observed her

“yelling” and “screaming” at them); Carney, 31 S.W.3d at 398-99 (reversing defendant’s

conviction where the State failed to present any evidence that the defendant had taken any action to

interfere with a police officer’s duties other than to argue with the officer).

       Appellant’s argument raises an interesting question. If in fact the State fails to come

forward with any evidence to demonstrate that a defendant engaged in any physical conduct that

interfered with a peace officer’s duties, and instead only presents evidence of the defendant’s


                                                  20
speech, then the defendant’s conviction would be barred by both the speech-only provision in the

statute as well as the First Amendment. It is arguable that in light of the constitutional ban on

prosecution in such cases, the trial court could have a mandatory duty under Taylor to provide an

instruction to the jury sua sponte on the speech-only provision. See, e.g., Taylor, 332 S.W.3d at

487 (noting that a jury instruction is mandatory where the issue relates to a complete bar to

prosecution that is “not contingent upon any party’s theory of the case”).

        We save that argument for another day, however. The case before us does not involve a

situation in which the evidence demonstrated that Appellant engaged only in mere speech. Here,

the State presented ample evidence that Appellant also engaged in physical conduct that interfered

with Office O’Connor’s duties.            Therefore, there was no statutory or constitutional bar or

prohibition against Appellant’s prosecution or conviction.3 In situations such as this where there

are conflicts in the evidence, a defendant has a variety of defenses available to him, many of which

have nothing to do with the speech-only provision or the First Amendment. In these cases,

defense counsel could make a strategic decision not to request a speech-only instruction, as he

might believe the evidence so weak that giving an instruction would detract from his defense and

risk losing the confidence of and credibility with the jury. For example, defense counsel could

make a strategic decision not to request a speech-only instruction in a case where the defendant

spoke to a peace officer in a disrespectful or negative manner, believing that such an instruction

would improperly focus the jury’s attentions on his client’s negative verbal behavior, and may




3
  Appellant does not contend the State failed to present sufficient evidence that she engaged in physical conduct or
that the State’s prosecution was based on mere speech. Further, the State presented ample evidence, in the form of
Officer O’Connor’s testimony, to support the jury’s finding that Appellant physically impeded Officer O’Connor in
his attempt to take Appellant’s sister into custody.
                                                        21
instead chose to instead focus solely on whether the evidence was sufficient to prove that he

committed the physical acts alleged in the indictment.

       In fact, this may have been defense counsel’s strategy in the present case, since he did not

raise a speech-only defense in his argument to the jury, and never once argued that Appellant could

not be convicted on that basis. Instead, defense counsel focused almost exclusively on the claim

that Appellant did not engage in any physical conduct that interfered with Officer O’Connor’s

duties, and that instead Officer O’Connor was the aggressor, making virtually no reference to the

statements that Appellant made to Officer O’Connor during their encounter. Similarly, in its

closing argument, the State spent little or no time discussing Appellant’s statements, and instead

argued that Appellant’s version of the facts that Officer O’Connor attacked her lacked credibility.

       Under these circumstances, requiring a trial court to provide a speech-only instruction sua

sponte would effectively require the court to serve as a second trial counsel, assisting the defendant

and her attorney in determining which defenses they should and should not present to the jury.

Further, requiring a trial court to provide an unrequested instruction under these circumstances

would run the risk of imposing an unwanted defense on the defendant, which, in turn, could give

rise to a complaint of judicial overreaching—the very danger the Court warned against in Posey.

See Posey, 966 S.W.2d at 63.

       Finally, we note that even when requested, submitting a speech-only instruction is not

appropriate in every case in which a defendant is charged with interference with public duties. A

trial court may properly reject a defendant’s request for a speech-only instruction when the

evidence does not support submission of the instruction.            See Momentoff v. State, No.

02-12-00335-CR, 2013 WL 5967107, at *7 (Tex.App. – Fort Worth Nov. 7, 2013, no pet.) (mem.


                                                 22
op., not designated for publication) (holding the trial court properly refused defendant’s request for

a speech-only instruction, where the evidence demonstrated only that the defendant engaged in

physical acts that interfered with the peace officer’s performance of his duties).

         Accordingly, we conclude that a speech-only instruction relates to a discretionary

defensive issue, one which a trial court is not required to give absent a request from defense

counsel, and only then if the evidence supports the request.

        The speech-only Provision is not an Element of the Offense or an Exception Thereto

         Appellant also argues that the speech-only provision should be considered an “element of

an offense” or an “exception” to an offense that the State has the burden to negate, thereby

requiring a jury instruction on that issue.4 We disagree. The speech-only provision is neither an

element of the offense nor an exception thereto.

         First, the speech-only provision is not an exception to the offense. The Penal Code

provides that an “exception to an offense in this code is so labeled by the phrase: ‘It is an

exception to the application of . . . .’” TEX. PENAL CODE ANN. § 2.02(a) (West 2011). On the

other hand, the Code provides that a “defense to prosecution for an offense in this code is so

labeled by the phrase: ‘It is a defense to prosecution . . . .’” Id. at § 2.03(a) (West 2011). In

Section 38.15, the Legislature expressly referred to the speech-only provision as a “defense to

prosecution,” not as an “exception.” Id. at § 38.15. When an issue relates to a “defense” to a

charge, as opposed to an “exception” to the offense, the State has no affirmative obligation to




4
  In particular, Appellant contends that the elements of the offense, as charged in the State’s indictment, included not
only that she interrupted, disrupted, impeded, or interfered with Officer O’Connor’s duties while he was performing
an “investigation” by “pushing" him, but that “[s]uch interference, disruption, impeding or interference consisted of
more than mere speech.”
                                                          23
negate its existence. See id. at § 2.03(b) (the prosecution “is not required to negate the existence

of a defense in the accusation charging commission of the offense”).

       Moreover, Appellant has cited no authority that would persuade us that the speech-only

provision should be viewed as an element of the offense. The one case Appellant cites for this

proposition, Carney v. State, is inapposite. The court in Carney did not discuss whether the trial

court was required to give a speech-only instruction to the jury, and it was unclear whether the jury

was in fact given any such instruction in that case. Instead, the court in Carney addressed only

whether the State presented sufficient evidence to sustain the conviction. 31 S.W.3d at 393. The

Court concluded that in light of both First Amendment considerations and the speech-only

provision, the State was required to prove that the defendant physically blocked the residence in

order to support a conviction for interference with public duties. Id. at 396. The State, however,

presented no evidence of a physical blocking, and instead produced only evidence that the

defendant had engaged in mere speech that delayed the officer’s entry into the residence.

Appellant relies on the court’s statement in its conclusion in Carney that the State had failed to

present sufficient evidence from which a rational jury could have found “beyond a reasonable

doubt, the essential element of interference by blocking Trooper Jones’s entry into appellant’s

home independent of speech.” Id. at 398 (emphasis added).

       Although the court in Carney indicated that the blocking had to be accomplished

“independent of speech,” we do not believe the court was elevating the speech-only provision in

the statute to the level of an element of the offense. Instead, the court was only recognizing the

State’s obligation and failure to come forward with evidence that the defendant had engaged in

physical conduct that interfered with the officer’s duties. In fact, in describing the elements of the


                                                 24
offense, the court did not include that speech-only provision in its description Id. at 396.

Further, the court expressly referred to the speech-only provision multiple times as being a

“statutory defense,” noting that by charging the defendant with “blocking” the officer’s entry, the

State “impliedly recognized that interference by speech only is a defense” to the prosecution. Id.;

see also Barnes, 206 S.W.3d at 605-06 (repeatedly referring to the speech-only provision in the

statute as a “defense” to prosecution).

       As such, the holding in Carney reaffirms our earlier conclusion that the speech-only

provision relates to a defensive issue, and that the trial court was not required to give an instruction

on that provision absent a request from defense counsel. Finding no error in the jury charge, we

therefore decline to conduct a harm analysis. See Posey, 966 S.W.2d at 62 (because there is no

error in failing to give an unrequested instruction on a defensive issue, there is no need to conduct

a harmless error analysis on appeal). Issue Two is overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.


                                                YVONNE T. RODRIGUEZ, Justice
January 20, 2017

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating

(Publish)




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