                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00067-CR

CHRISTOPHER DAVID HARVEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2013-840-C1


                          MEMORANDUM OPINION


      In two issues, appellant, Christopher David Harvey, challenges his conviction for

assault of a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014).

Specifically, Harvey challenges the sufficiency of the evidence supporting his conviction

and argues that the State committed reversible error by repeatedly stating that he is a

“rapist” during the punishment phase of trial. Because we conclude that the evidence is
sufficient to support Harvey’s conviction, and because Harvey waived his complaint

about the State’s argument during the punishment phase, we affirm.

                             I.      SUFFICIENCY OF THE EVIDENCE

       In his first issue, Harvey contends that the evidence supporting his conviction is

insufficient because the testimony at trial failed to show that the officer’s injury was

caused by his conduct. We disagree.

A.     Standard of Review & Applicable Law

       In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
       Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
       standard gives full play to the responsibility of the trier of fact fairly to
       resolve conflicts in the testimony, to weigh the evidence, and to draw
       reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
       319. “Each fact need not point directly and independently to the guilt of
       the appellant, as long as the cumulative force of all the incriminating
       circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
       at 13.

Id.

       Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,


Harvey v. State                                                                              Page 2
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:    “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

       The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.     Facts

       On the evening of April 9, 2013, McLennan County Deputy Sheriff Rebecca Mabry

and her partner, Deputy Brent Ewing, attempted to serve a felony warrant on Harvey.

They first went to Harvey’s home address, but he was not there. The deputies then

received information that Harvey likely was at the residence of Rebekah Rosario. The

deputies proceeded to Rosario’s residence. After obtaining Rosario’s consent to search

the residence, the deputies found Harvey inside sitting on a couch. At this point, one of


Harvey v. State                                                                          Page 3
the deputies told Harvey to stand up, turn around, and put his hands behind his back

because he was under arrest. As the deputies attempted to handcuff him, Harvey

decided to run. Deputy Mabry described the scene as follows:

       He changed his mind and decided he was gonna [sic] run—

                  ...

       --before I could get the cuff on.

                  ...

       He quickly kind of elbowed me, and when he did I tried to hold tighter. So
       then it kind of got into a struggle and he pushed me against the door frame.
       We were by the door so he pushed me against the door frame and I fell, and
       then that’s when he got free and he bolted.

When asked what happened when the deputies tried to handcuff Harvey, Deputy Ewing

corroborated Deputy Mabry’s testimony by stating the following:

       At that point in time he started to spin around. I felt him start to move, and
       I had him kind of by fingers in a hold like this to try to cuff him. And as he
       started to move around he hit Deputy Mabry with his shoulder. . . . That
       knocked her to the ground.
              ....

             Yeah, he would have had to do that intentionally, ‘cause that’s the
       only way he could have made the escape that he was doing from the house.

       Later, Deputy Mabry discovered that the fall had caused a minor scrape on her

knee that she described as “painful.” Deputy Ewing testified that he did not observe a

scrape on Deputy Mabry’s knee prior to the incident and that he believed that the scrape

was a result of the altercation with Harvey.


Harvey v. State                                                                         Page 4
        Thereafter, Harvey called Rosario to testify on his behalf. Appearing in jail

clothing and admitting that she was serving time for drug possession, Rosario testified

that she had a good view of the incident and that Harvey leapt past the deputies and ran

away.1 According to Rosario, Harvey “did not have any contact with anybody. He

literally just kind of left out the front door, and he didn’t even run down the steps. He

jumped off the steps.”

C.      Discussion

        On appeal, Harvey asserts that the trial testimony failed to show that Deputy

Mabry’s injury was caused by his conduct. The Texas Court of Criminal Appeals has

broadly interpreted the definition of bodily injury 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). Moreover, it is important to note that

Harvey was charged by indictment with assault against a public servant, see TEX. PENAL

CODE ANN. § 22.01(b)(1), and that an assault against a public servant is a result-oriented

offense. Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.); see Johnson

v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). Therefore, the focus is on the result

of the defendant’s action and his culpable mental state, not on the precise act or the nature



        1 On cross-examination, Rosario acknowledged that, in addition to drug possession, she had also
engaged in theft by check. Rosario further testified that Harvey comes by often and that he is close with
Rosario’s son. Additionally, Rosario’s statement that she could clearly observe the incident was
undermined by Deputy Ewing, who noted that Rosario’s view was likely obscured from where she was
standing.

Harvey v. State                                                                                   Page 5
of the conduct committed by the defendant. See Johnson, 364 S.W.3d at 298; Brooks, 967

S.W.2d at 950.

       Here, Deputy Mabry testified that, in his attempt to flee the deputies, Harvey

pushed her to the floor, which resulted in a scraped knee that was “painful.” See Wingfield

v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (noting that “a jury

may infer that a victim actually felt or suffered physical pain because people of common

intelligence understand pain and some of the natural causes of it” (citing Randolph v. State,

152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.))); see also Wawrykow v. State, 866

S.W.2d 87, 88-89 (Tex. App.—Beaumont 1993, pet. ref’d) (determining that a rational jury

could have inferred that pushes to the chest caused “physical pain”); Goodin v. State, 750

S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (stating that people of

common intelligence understand what naturally causes pain).              This testimony is

sufficient for the jury to infer that Deputy Mabry suffered physical pain as a result of

Harvey’s conduct.

       Therefore, because the focus of the inquiry is on the result of Harvey’s conduct,

we conclude that the State adduced sufficient evidence to demonstrate that Harvey

knowingly or intentionally caused bodily injury to Deputy Mabry’s knee. See TEX. PENAL

CODE ANN. § 22.01(b)(1); Johnson, 364 S.W.3d at 298; Brooks, 967 S.W.2d at 950; see also

Lucio, 351 S.W.3d at 894. Accordingly, we overrule Harvey’s first issue.




Harvey v. State                                                                        Page 6
                         II.   THE STATE’S PUNISHMENT ARGUMENT

       In his second issue, Harvey asserts that the State committed reversible error by

repeatedly stating to the jury during the punishment phase of trial that he had raped a

sixteen-year-old girl.

       During the punishment phase of trial, the State introduced evidence of Harvey’s

prior criminal convictions—one of which was for second-degree-felony sexual assault.

At various times during argument, the State referred to Harvey as a “rapist” or as

someone who “raped a 16-year-old.” However, Harvey did not object to any of these

instances.

       Texas courts have held that a “defendant’s failure to object to a jury argument or

a defendant’s failure to pursue to an adverse ruling his objection to a jury argument

forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d

73, 89 (Tex. Crim. App. 1996); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010)

(“[W]e will not review the propriety of the prosecutor’s arguments, [when] appellant

failed to object to those arguments at trial.”); Morris v. State, 460 S.W.3d 190, 197 (Tex.

App.—Houston [14th Dist.] 2015, no pet.); see also Freeman v. State, No. 11-13-00232-CR,

2015 Tex. App. LEXIS 8515, at *10 (Tex. App.—Eastland Aug. 13, 2015, no pet. h.) (mem.

op., not designated for publication). Therefore, because Harvey failed to object to the

references made in the State’s argument, we conclude that Harvey has forfeited his right

to complain about this issue on appeal. See TEX. R. APP. P. 33.1; Mays, 318 S.W.3d at 394;


Harvey v. State                                                                       Page 7
Cockrell, 933 S.W.2d at 89; Morris, 460 S.W.3d at 197; see also Freeman, 2015 Tex. App. LEXIS

8515, at *10.

       Nevertheless, despite the general rule regarding preservation, Harvey urges this

Court to apply the Almanza egregious-harm standard to jury-argument complaints. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). This is essentially a

fundamental-error argument, which can be waived by failure to object in the trial court.

See Mays, 318 S.W.3d at 393-94 (concluding that appellant failed to preserve his

complaints about “a series of egregiously improper remarks” by not objecting to those

arguments at trial); Morris, 460 S.W.3d at 197 (“Appellant, however, argues that the jury

argument is incurable fundamental error. Even if the State’s arguments were incurable

and rose to the level that it deprived appellant of his right to due process of law, appellant

waived this complaint by failing to object in the trial court.”); see also Freeman, 2015 Tex.

App. LEXIS 8515, at *10 (“Even if the State’s arguments were incurable and rose to the

level that they deprived Appellant of her right to due process of law, Appellant waived

her complaints by failing to object in the trial court.”). Therefore, we are not persuaded

by Harvey’s argument regarding the application of Almanza. Based on the foregoing, we

overrule Harvey’s second issue.

                                      III.   CONCLUSION

       Having overruled both of Harvey’s issues on appeal, we affirm the judgment of

the trial court.


Harvey v. State                                                                         Page 8
                                             AL SCOGGINS
                                             Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 17, 2015
Do not publish
[CRPM]




Harvey v. State                                            Page 9
