                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00116-CR

SHAWN RAE CARRIER,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 18th District Court
                              Johnson County, Texas
                               Trial Court No. F45088


                           MEMORANDUM OPINION


       In two issues, appellant, Shawn Rae Carrier, challenges his conviction for

assaulting a public servant, a third-degree felony.        See TEX. PENAL CODE ANN. §

22.01(a)(1), (b)(1) (West 2011). We affirm.

                                    I.        BACKGROUND

       Here, appellant was charged with one count of assaulting a public servant—

Detective David Feucht of the Burleson Police Department. See id. The charge stemmed
from an incident involving appellant, appellant’s wife, and Detective Feucht on

December 22, 2010.

        On the day in question, appellant and his wife, Stephanie, traveled to Walmart to

return a Nintendo Wii video-game console they had purchased for their children.

According to Stephanie, appellant was not feeling well that day because he had

received treatment earlier in the day for a staph infection on his foot. In any event,

Walmart refused to return the video-game console because Stephanie did not also

return a gift card that she had received when she purchased the item. Stephanie

returned to the car mad.

        Stephanie testified that she and appellant got into a fight as they were leaving the

Walmart parking lot. Stephanie noted that she was mad that Walmart would not return

the video-game console and that she wanted to take appellant home. Appellant did not

wish to go home. Apparently, the couple began arguing with each other, and appellant

eventually told Stephanie to “shut the hell up.”         Stephanie responded by hitting

appellant in the chest with a closed fist and “peel[ing] out from the stop sign.”

Appellant warned Stephanie to not hit him again. Stephanie ignored the warning and

hit appellant once again.      The couple exchanged blows as appellant grabbed the

steering wheel and tried to direct the car into a wall. Stephanie prevented the car from

hitting a wall by pressing the brake pedal on the car. The couple continued to hit each

other. Eventually, appellant grabbed Stephanie by the hair on the back of her head,

bent her head down, and punched her in the face with a closed fist. As a result of this

blow, Stephanie’s nose began to bleed.

Carrier v. State                                                                      Page 2
        Detective Feucht, dressed in plain clothes, was driving his unmarked, black

Dodge Charger by the Walmart at the time. From his car, Detective Feucht observed

the fight between appellant and Stephanie. Detective Feucht called in the assault-in-

progress, stopped his car by the couple’s car, and exited his vehicle to investigate the

incident. Detective Feucht observed Stephanie get out of the car and walk away with

appellant following. Detective Feucht, a twenty-three-year veteran of the police force,

testified that he identified himself to appellant and ordered appellant to stop.

Appellant ignored the order, returned to his car, got behind the wheel of the car, and

attempted to drive away.

        Detective Feucht caught up with the vehicle as appellant began to drive away

and banged on the car windows while ordering appellant to stop.             This angered

appellant. As a result, appellant stopped and exited the vehicle, approached Detective

Feucht, and demanded to know why Detective Feucht had hit the car. At this point,

Detective Feucht informed appellant that he was under arrest and ordered him to get

on the curb. Appellant turned and slapped Detective Feucht in the face, knocking

Detective Feucht’s sunglasses off his face onto the road. Stunned, Detective Feucht

backed up, pulled out his service weapon, and ordered appellant to get on the ground.

Appellant twice dared Detective Feucht to shoot him. Realizing that Detective Feucht

was not going to shoot him, appellant returned to his car. Detective Feucht re-holstered

his service weapon, attempted to take appellant’s keys out of the ignition of the car, and

tried to arrest appellant. Appellant slapped the cuffs away, returned to his car, locked

the door, and drove away.

Carrier v. State                                                                    Page 3
        Detective Feucht returned to his car and was soon met by Burleson Police Officer

Paul Lancaster.     As Detective Feucht told Officer Lancaster what had happened,

appellant returned to the Walmart parking lot to pick up Stephanie. When appellant

opened the door, Detective Feucht and Officer Lancaster ordered appellant to get out

and get on the ground. Once again, appellant refused. Detective Feucht and Officer

Lancaster then pulled appellant out of the car, forced him to the ground, and placed

him under arrest.

        Appellant and Stephanie had a different recollection of the events that transpired

that day. Appellant and Stephanie denied seeing Detective Feucht’s badge. They also

denied hearing Detective Feucht identify himself as a police officer. Appellant believed

Detective Feucht to be a meddlesome stranger who needed to “mind his own business.”

Nevertheless, Stephanie admitted that she loved appellant and that she hoped to help

her husband with her testimony.

        At the conclusion of the evidence, the jury found appellant guilty of the charged

offense and assessed punishment at four years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice. However, the jury recommended

that the sentence be suspended and that appellant be placed on community supervision

for four years. The trial court agreed and thereby suspended appellant’s four-year

sentence and placed him on community supervision for four years. Appellant filed a

pro se motion for new trial, which was overruled by operation of law. See TEX. R. APP.

P. 21.8(a), (c). This appeal followed.




Carrier v. State                                                                    Page 4
                             II.    SUFFICIENCY OF THE EVIDENCE

        In his first issue, appellant contends that the evidence supporting his conviction

is legally insufficient. Specifically, appellant argues that the evidence contained in the

record does not sufficiently demonstrate that he knew that Detective Feucht was a

police officer and that Detective Feucht endured bodily injury as a result of appellant’s

actions. We disagree.

A.      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.


Carrier v. State                                                                        Page 5
Jackson, 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 person commits the offense of assault on a

public servant if he intentionally, knowingly, or recklessly causes bodily injury to a

person he knows is a public servant while the public servant is lawfully discharging an

official duty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1).

B.      Bodily Injury

        At trial, Detective Feucht testified that he felt pain when appellant slapped him

in the face and knocked off his sunglasses. However, on appeal, appellant asserts that

Detective Feucht’s testimony is insufficient because he did not describe the nature,

degree, or duration of the pain. Appellant does not cite authority in support of this

contention.

        “Bodily injury” is defined as “physical pain, illness, or any impairment of

physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2012). Under this

definition, “[a]ny physical pain, however minor, will suffice to establish bodily injury.”

Carrier v. State                                                                        Page 6
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) (citing Laster v. State, 275

S.W.3d 512, 524 (Tex. Crim. App. 2009)). “A fact finder 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.” Id. (citing Randolph v. State, 152 S.W.3d 764, 774

(Tex. App.—Dallas 2004, no pet.)). Moreover, “[d]irect evidence that a victim suffered

pain is sufficient to show bodily injury.” Laster, 275 S.W.3d at 524.

          Therefore, viewing the evidence in the light most favorable to the verdict, we

conclude that a rational factfinder could conclude beyond a reasonable doubt that

Detective Feucht felt pain when appellant hit him and, thus, sustained bodily injury at

the hands of appellant. See TEX. PENAL CODE ANN. §§ 1.07(a)(8), 22.01(a)(1); see also

Jackson, 443 U.S. at 318-19, 99 S. Ct. 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d

at 13. As such, we cannot say that the evidence pertaining to the bodily-injury element

of the charged offense is insufficient. See Jackson, 443 U.S. at 318-19, 99 S. Ct. 2788-89;

Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.

C.      Whether Appellant Knew Detective Feucht Was a Public Servant

        Appellant also argues that the record does not contain sufficient evidence

demonstrating that he knew that Detective Feucht was a public servant lawfully

discharging an official duty. Detective Feucht stated that, on the day in question, he

was wearing jeans, a collared shirt, a jacket, his service weapon, and his badge. After

Stephanie exited the vehicle and appellant began chasing her, Detective Feucht moved

towards appellant and shouted, “Stop. Police.” Detective Feucht estimated that he was

fifteen to twenty feet away from appellant when he shouted this command. Detective

Carrier v. State                                                                      Page 7
Feucht also believed that appellant heard him because appellant “stopped and looked”

at him. In any event, appellant ignored Detective Feucht’s command and walked back

to his car. Detective Feucht once again shouted, “Stop. Police. Don’t go to the car.”

Appellant again ignored Detective Feucht, got into the car, and began to drive away.

As appellant drove away, Detective Feucht pounded on the window of the car and

shouted, “Stop.    Stop.”   Appellant stopped the car, opened the door, and walked

towards Detective Feucht, screaming obscenities. Detective Feucht testified that he told

appellant that he was under arrest and commanded him to step up to the curb. At this

point, appellant struck Detective Feucht in the face. Detective Feucht insisted that

appellant heard him and that appellant should have seen his badge because his “jacket

was open and it was moving.”

        Officer Paul Lancaster of the Burleson Police Department testified that he

responded to Detective Feucht’s call for backup. Officer Lancaster testified that, in

these types of situations, an officer is trained to first “identify yourself as a police

officer,” which Detective Feucht alleged that he did. In addition, Officer Lancaster

recalled that he was able to see Detective Feucht’s badge when he arrived. Officer

Lancaster believed it to be absurd that Detective Feucht did not identify himself to

appellant as a police officer and that appellant did not see Detective Feucht’s badge.

        On the other hand, appellant testified on his own behalf. In his testimony,

appellant denied seeing Detective Feucht’s badge, and he denied hearing Detective

Feucht identify himself as a police officer.        Moreover, Stephanie corroborated




Carrier v. State                                                                    Page 8
appellant’s testimony, though she did admit that she desired to help appellant with her

testimony.

        As noted above, it is within the discretion of the factfinder—the jury—to resolve

any conflicts in the testimony, and we are to defer to the jury’s resolution of such

conflicts. See Jackson, 443 U.S. at 329, 99 S. Ct. 2792-93; see also Lancon v. State, 253 S.W.3d

699, 706 (Tex. Crim. App. 2008); Chambers, 805 S.W.2d at 461; Render v. State, 316 S.W.3d

846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to

a jury’s decision regarding what weight to give contradictory testimonial evidence

because the decision is most likely based on an evaluation of credibility and demeanor,

which the jury is in a better position to judge.”). Clearly, by convicting appellant of the

charged offense, the jury resolved any conflicts in the evidence against appellant, and

we are to defer to the jury’s resolution of the facts. See Jackson, 443 U.S. at 329, 99 S. Ct.

2792-93; see also Lancon, 253 S.W.3d at 706; Chambers, 805 S.W.2d at 461; Render, 316

S.W.3d at 859.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational factfinder could have found beyond a reasonable doubt that appellant knew

that Detective Feucht was a police officer discharging an official duty at the time of the

assault. See TEX. PENAL CODE ANN. § 22.01(b)(1); Jackson, 443 U.S. at 318-19, 99 S. Ct. at

2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Accordingly, we conclude

that the evidence supporting appellant’s conviction is sufficient. See Jackson, 443 U.S. at

318-19, 99 S. Ct. 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We overrule

appellant’s first issue.

Carrier v. State                                                                         Page 9
            III.   THE ADMISSION OF AN APPLICATION AND MAGISTRATE’S ORDER FOR
                                     EMERGENCY PROTECTION

        In his second issue, appellant argues that the trial court erred in admitting an

application and magistrate’s order for emergency protection over his objection.

Specifically, appellant asserts that the document was irrelevant to the proceedings,

introduced inadmissible character evidence, and was highly prejudicial.                  The State

responds that any error associated with the admission of this evidence was harmless.

We agree.

A.      Facts

        During the State’s cross-examination, Stephanie acknowledged that, after the

incident, she did not see appellant again until seven days later when he bonded out of

jail. Stephanie noted that appellant moved back in with her after he bonded out.

However, when confronted with State’s exhibit 8, which was a copy of the application

and magistrate’s order for emergency protection, Stephanie clarified that she and

appellant did not live together after she picked him up from the jail but that they live

together now.1 In any event, appellant objected to the introduction of State’s exhibit 8

on hearsay grounds and under Texas Rules of Evidence 401, 403, and 404(b). See TEX. R.

EVID. 401, 403, 404(b). The trial court overruled appellant’s objections, admitted the

exhibit, and allowed the State to publish the exhibit to the jury. On appeal, appellant’s

second issue mirrors the objections he made in the trial court to State’s exhibit 8.



        1 The protective order stated that, among other things, appellant was prohibited from being
within 500 feet of Stephanie, the couple’s house, and Stephanie’s place of employment for a period of
sixty days from December 23, 2010.

Carrier v. State                                                                             Page 10
B.       Harm Analysis

         Assuming, without deciding, that the trial court abused its discretion by

admitting State’s exhibit 8, we conclude that any error was harmless. It is undisputed

that the purported error in this case amounts to non-constitutional error; accordingly,

we must apply a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See

TEX. R. APP. P. 44.2(b). In doing so, we must disregard non-constitutional errors that do

not affect a criminal defendant’s “substantial rights.” See id. Under this standard, an

error is reversible only when it had a substantial and injurious effect or influence in

determining the jury’s verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App.

2008).       We should not overturn the conviction if we have fair assurance from an

examination of the record as a whole that the error did not influence the jury, or had but

a slight effect. Id. In assessing the likelihood that a jury’s decision was adversely

affected by the error, we consider the entire record, including any testimony or physical

evidence admitted, the nature of the evidence supporting the verdict, the character of

the alleged error, and how it might have been considered in connection with other

evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider jury instruction, the State’s theory, any defensive theories, closing argument,

voir dire, and whether the State emphasized the error. Id. at 355-56.

         Here, the record evidence supporting the jury’s verdict consisted mainly of

Detective Feucht’s testimony.2        As noted earlier, Detective Feucht testified that he


         Also included in the evidence is a photograph of Detective Feucht’s sunglasses lying in the
         2

middle of the road, which corroborated Detective Feucht’s testimony about what had transpired between
him and appellant.

Carrier v. State                                                                             Page 11
observed part of the conflict between appellant and Stephanie. In addition, Detective

Feucht noted that he identified himself to appellant and told appellant to stop several

times during the incident. Moreover, Detective Feucht recalled that he was wearing his

badge and service weapon on the day of the incident. Furthermore, appellant did not

deny hitting Detective Feucht; he merely denied knowing that Detective Feucht was a

public servant at the time of the assault. As we concluded earlier, there was sufficient

evidence to support the jury’s verdict. And after reviewing the record, we find that,

during two days of testimony, the State only asked a few questions about State’s exhibit

8 and made a passing reference to the exhibit in its closing argument. The vast majority

of the State’s case focuses on Detective Feucht’s testimony about the incident. 3

        When compared to the evidence pointing to appellant’s guilt, we believe that

State’s exhibit 8 likely was of little consequence to the jury. See Motilla, 78 S.W.3d at 357

(stating that the presence of overwhelming evidence may be a factor in the evaluation of

harmless error). Moreover, we have “a fair assurance that the error did not influence

the jury, or had but a slight effect.” See id. at 355; see also TEX. R. APP. P. 44.2(b); Taylor,

268 S.W.3d at 592. Accordingly, we overrule appellant’s second issue.


        3  We recognize that both appellant and Stephanie testified that Detective Feucht did not identify
himself as a police officer. And though this testimony conflicts with that of Detective Feucht, we note
that the testimony of both appellant and Stephanie was undermined. Stephanie admitted that she hoped
to assist appellant with her testimony. In addition, she made conflicting statements about whether
appellant moved in with her after he bonded out of jail. Appellant noted that he had “never been in a
fight a day in [his] life until [he] hit [Detective Feucht].” Given the testimony about the fight between
appellant and Stephanie transpiring the same day, the jury likely did not find appellant’s testimony to be
credible. Nevertheless, in his brief, appellant attempts to isolate the testimony of Stephanie, as “the only
independent witness.” However, as noted earlier, Stephanie was not an “independent witness.”
Moreover, when conducting a harm analysis under rule 44.2(b), we are to consider the entire record, not
just the isolated testimony of one witness. See TEX. R. APP. P. 44.2(b); see also Taylor v. State, 268 S.W.3d
571, 592 (Tex. Crim. App. 2008); Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002).

Carrier v. State                                                                                    Page 12
                                     IV.    CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 17, 2013
Do not publish
[CR25]




Carrier v. State                                                                  Page 13
