                                                                       PD-1591-14
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                    Transmitted 1/26/2015 3:36:41 AM
                                                      Accepted 1/29/2015 1:30:49 PM
                                                                        ABEL ACOSTA
       COURT OF CRIMINAL APPEALS                                                CLERK



                          PD-1591-14

       Robert Charles Thompson, Appellant,
                         v.
             State of Texas, Appellee.

        On Discretionary Review from No. 05-13-01620-CR
                  Fifth Court of Appeals, Dallas

          On Appeal from Trial Court No. 219-80385-2012
               219th District Court, Collin County



         Petition for Discretionary Review
Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com                    January 29, 2015
Texas Bar No. 24048680
Attorney for Appellant




                 ORAL ARGUMENT NOT REQUESTED
I. Identity of Parties, Counsel, and Judges

Robert Charles Thompson, Appellant.

Michael Mowla, Attorney for Appellant on Appeal and Discretionary Review,
445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-2401, fax 972-
692-6636, email michael@mowlalaw.com.

Don Guidry, Attorney for Appellant at Trial, 137 Pittsburg Street Suite A,
Dallas, Texas 75207, phone (972) 762-0883.

Greg Willis, Collin County District Attorney, Attorney for State of Texas,
2100 Bloomdale Suite 100, McKinney, Texas 75071, phone (972) 548-4323, fax
(972) 548-4388.

John Rolater, Collin County Assistant District Attorney, Attorney for State of
Texas on Habeas Corpus and Appeal, 2100 Bloomdale Suite 100, McKinney,
Texas 75071, phone (972) 548-4323, fax (972) 548-4388, jrolater@co.collin.tx.us

Brandon Wonnacott, Collin County Assistant District Attorney, Attorney for
State of Texas at Trial, 2100 Bloomdale Suite 100, McKinney, Texas 75071,
phone (972) 548-4323, fax (972) 548-4388.

Haley Hendrix, Collin County Assistant District Attorney, Attorney for State
of Texas at Trial, 2100 Bloomdale Suite 100, McKinney, Texas 75071, phone
(972) 548-4323, fax (972) 548-4388.

Scott Becker, Presiding Judge of the 219th Judicial District Court, 2100
Bloomdale Suite 20132, McKinney, Texas 75071, phone (972) 548-4402, fax
(972) 548-4697




                                  Page 2 of 26
II.        Table of Contents

I.         Identity of Parties, Counsel, and Judges ..........................................................2 
II.        Table of Contents .............................................................................................3 
III.       Table of Authorities .........................................................................................4 
IV.        Appendix Index ...............................................................................................6 
V.         Statement Regarding Oral Argument ..............................................................7 
VI.        Statement of the Case and Procedural History ................................................8 
VII.  Grounds for Review.......................................................................................10 
VIII.  Argument .......................................................................................................11 
       1.  Ground for Review One: The Court of Appeals erred when it
           concluded that the evidence is legally sufficient to prove that
           Appellant committed Assault on a Public Servant because the
           trial court was not free to disregard the State’s own video and
           photos from the video, which clearly show that Appellant did
           not commit the offense. .................................................................................11 
           i.       Introduction .........................................................................................11 
           ii.      Standards of legal sufficiency .............................................................13 
           iii.     The findings of fact and legal conclusions by the Court of
                    Appeals do not comport with the evidence presented at
                    trial .......................................................................................................15 
           iv.      The trial court was not free to disregard the state’s own
                    video and photographs from the video, and common
                    sense dictates that Appellant could not have kicked
                    Bogacki when Bogacki claimed he was kicked ..................................19 
           v.       In the alternative, should this Court find that Appellant is
                    not guilty of Assault on a Public Servant but may have
                    committed Resisting Arrest, this Court is empowered to
                    reverse the Judgment of Conviction by Court and convict
                    Appellant of Resisting Arrest. .............................................................23 
IX.        Conclusion and Prayer ...................................................................................25 
X.         Certificate of Service .....................................................................................26 
XI.        Certificate of Compliance with Tex. Rule App. Proc. 9.4 ............................26 


                                                         Page 3 of 26
III. Table of Authorities

Cases 
Agnew v. State, 635 S.W.2d 167 (Tex. App. El Paso 1982, no pet.) .......................24
Bingham v. State, 630 S.W.2d 718 (Tex. App. Houston [1st Dist.]
     1982, no pet.) .................................................................................................25
Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012).......................................23
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................13
Campbell v. State, 128 S.W.3d 662 (Tex. App. Waco 2003) ..................................25
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) .................................21
Castilla v. State, 374 S.W.3d 537 (Tex. App. San Antonio 2012, pet.
       ref.) .......................................................................................................... 15, 17
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .....................................13
Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001)........................................14
Delay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) ........................................14
Gomer v. State, No. 05-02-00771-CR, 2003 Tex. App. LEXIS 5795,
    2003 WL 21525312 (Tex. App. Dallas July 8, 2003)
    (memorandum opinion) .................................................................................24
Gumpert v. State, 48 S.W.3d 450 (Tex. App. Texarkana 2001, pet.
    ref.) .................................................................................................................24
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .........................................13
Illinois v. Gates, 462 U.S. 213 (1983) .....................................................................18
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................13
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) .........................................19
Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008)......................................22
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................14
Luck v. State, 588 S.W.2d 371 (Tex. Crim. App. 1976) ..........................................13
N.J. v. T.L.O., 469 U.S. 325 (1985) .........................................................................19
Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) ......................................14
Pyykola v. State, 814 S.W.2d 462 (Tex. App. Houston [14th Dist.]
     1991, pet. ref.) ................................................................................................24

                                                      Page 4 of 26
Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991).......................................13
Schrader v. State, 753 S.W.2d 733 (Tex. App. Austin 1988, pet. ref.) ...................24
Talavera v. State, 626 S.W.2d 618 (Tex. App. El Paso 1982, no pet.) ...................24
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ......................................15
Thompson v. State, No. 05-13-01620-CR, 2014 Tex. App. LEXIS
     12852 (Tex. App. Dallas, December 1, 2014) (memorandum
     opinion) ................................................................................................. 8, 9, 15
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993) ..........................................15
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) .....................................14
Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012) ........................................16
Statutes 
Tex. Pen. Code § 22.01 (2011) ..................................................................................9
Tex. Pen. Code § 38.03 (2011) ......................................................................... 23, 24
Rules 
Tex. Rule App. Proc. 43.2 (2015) ............................................................................23
Tex. Rule App. Proc. 66.3 (2015) ............................................................................23
Tex. Rule App. Proc. 68.11 (2015) ..........................................................................26
Tex. Rule App. Proc. 68.4 (2015) ....................................................................... 7, 10
Tex. Rule App. Proc. 9.4 (2015) ..............................................................................26
Tex. Rule Evid. 803 (2011)......................................................................................21




                                                    Page 5 of 26
IV. Appendix Index

Appendix 1: Judgment and Opinion of the Court of Appeals in Thompson v. State,
No. 05-13-01620-CR, 2014 Tex. App. LEXIS 12852 (Tex. App. Dallas, December
1, 2014) (memorandum opinion)




                                  Page 6 of 26
V. Statement Regarding Oral Argument

      Appellant does not request oral argument. See Tex. Rule App. Proc. 68.4(c)

(2015).   Appellant believes that the facts and legal arguments are adequately

presented in this petition. However, should this Court determine that its decisional

process will be significantly aided by oral argument, Appellant will be honored to

present oral argument.




                                    Page 7 of 26
To The Honorable Judges of the Court of Criminal Appeals:

      Appellant Robert Charles Thompson respectfully submits this petition for

discretionary review:


VI. Statement of the Case and Procedural History

      This petition for discretionary review requests that this Court review the

judgment and opinion of the Fifth Court of Appeals in Thompson v. State, No. 05-

13-01620-CR, 2014 Tex. App. LEXIS 12852 (Tex. App. Dallas, December 1,

2014) (memorandum opinion). (See Appendix 1). Appellant will ask this Court to

decide whether the Court of Appeals erred when it concluded that the evidence is

legally sufficient to prove that Appellant committed Assault on a Public Servant

even though the trial court disregarded the State’s own video and photos from the

video, which clearly show that Appellant did not commit the offense.

      On February 9, 2012, the State alleged in its Indictment that on or about

September 3, 2011, in Collin County, Texas, by kicking Plano police officer

Bogacki in the leg, Appellant intentionally, knowingly, and recklessly caused

bodily injury to Bogacki and thus committed Assault on a Public Servant under

Texas Penal Code § 22.01(a) and (b)(1) (2011). See Tex. Pen. Code § 22.01(a) &

(b)(1) (2011); (CR, 13).




                                   Page 8 of 26
       To the charge in the Indictment, Appellant pleaded “not guilty.” (RR2, 7;

CR, 56). Appellant waived his right to a jury trial and opted to have his case tried

by the trial court. (RR2, 6; CR, 52).

       On October 30, 2013, after a trial before the court, the trial court found

Appellant guilty of Assault on a Public Servant. (RR2, 99; CR, 56-61).1 Appellant

was sentenced to 10 years in prison, but the trial court probated the sentence for

four years. (CR, 56-61). Appellant was fined $5,000.00 and ordered to pay costs

of court. (CR, 56).

       Appellant appealed the Judgment of Conviction by Court to the Fifth Court

of Appeals.     On December 1, 2014, the Fifth Court of Appeals affirmed the

Judgment of Conviction by Court. Thompson v. State, No. 05-13-01620-CR. This

petition for discretionary review follows.




1
 The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s
Record, which is three volumes. The Clerk’s Record is cited as “CR” or followed by the page
number, and the Reporter’s Record is cited as “RR” followed by the volume number and page
number.


                                        Page 9 of 26
VII. Grounds for Review

Ground for Review One: The Court of Appeals erred when it concluded that the
evidence is legally sufficient to prove that Appellant committed Assault on a
Public Servant because the trial court was not free to disregard the State’s own
video and photos from the video, which clearly show that Appellant did not
commit the offense.

      The relevant pages of the record are: Clerk’s Record pages 13, 52, and 56-

61, and the following pages of the Reporter’s Record: RR2, pages 67-93; and RR3,

SX-1; DX-1-2. See Tex. Rule App. Proc. 68.4(f) (2015)




                                  Page 10 of 26
VIII. Argument

   1. Ground for Review One: The Court of Appeals erred when it concluded
      that the evidence is legally sufficient to prove that Appellant committed
      Assault on a Public Servant because the trial court was not free to
      disregard the State’s own video and photos from the video, which
      clearly show that Appellant did not commit the offense.

         i. Introduction

      This case boils down to a simple fact: the State’s own video and photos from

those videos are conclusive in proving that Appellant never kicked Poligala. When

this Court sets aside all witness testimony and focuses only on the State’s video

and photos from the video that were taken from the police vehicle of officer

Poligala, this conclusion is clear. (RR2, 26). The video was a continuous video.

(RR2, 26). Poligala claimed that the in-car video and audio were not activated

prior to the kick. (RR2, 49). When Poligala claimed to see Appellant kick

Bogacki, Poligala claims he “immediately reached down” and “hit on” a button

“knowing that it would go back (10 seconds) and grab that video” (of the alleged

kick). (RR2, 49).     Poligala then acknowledged that the video is continuously

recording, but that the 10-second recapture deals with the recapture of the audio.

(RR2, 51-54).

      Thus, the State’s video is clear, clean, and cannot be disputed. Using the

State’s video and photographs from the video, Jim Appleton, a video and audio

expert with 27 years of experience who often testifies for the State, made it clear to


                                    Page 11 of 26
the trial court that the video recorder (Integrian Digital Patroller) is capable of

rewinding up to a minute to recapture audio (and not merely 10 seconds as Poligala

claimed). (RR2, 67-70). Further, the video showed, and Appleton concluded, that

the audio began at the instant Bogacki stated to Appellant that “you kicked me.”

(RR2, 71-72). Further, the video showed that Appellant’s knee never extended.

(RR2, 72). The video makes it clear that there is “no body language that is

associated” with a kick, meaning that there was “no moving back of (Appellant’s)

body.” (RR2, 72). The frame of the video at the instant the kick supposedly

occurred clearly shows that Appellant’s knee is bent in an L-shape, so no kick

could have taken place when Bogacki claims it occurred. (RR2, 73-74, 80-82).

      Had Appellant actually kicked or even tried to kick Bogacki, Appellant’s

back would have moved back at least in the slightest, and this never occurred in the

videos or the photos immediately before, during, and after the alleged kick. (RR2,

81-82).   No part of the State’s video or photos show that Appellant got “a full

extension of his leg” so that “his foot made contact with Bogacki’s leg just above

the knee.” None of the videos or photos show a “thrust of Appellant’s hip” at the

same time that Appellant’s leg allegedly came out and made contact with

Bogacki’s knee. In fact, at the instant that Bogacki claimed that Appellant

kicked him, Appellant was leaning forward, which would have made a kick

physically impossible.   (RR2, 93; RR3, SX-1; DX-1-2). This evidence was


                                    Page 12 of 26
ignored by the Court of Appeals, and so it erred by affirming Appellant’s

conviction.


         ii. Standards of legal sufficiency

      When a reviewing court considers legal sufficiency, it reviews all the

evidence in the light most favorable to the verdict of the trier of fact to determine

whether any rational trier of fact could have found beyond a reasonable doubt that

the defendant was guilty, or whether the same rational trier of fact found that the

State disproved a defense beyond a reasonable doubt. See Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 319

(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Saxton v.

State, 804 S.W.2d 910, 912 (Tex. Crim. App. 1991); and Luck v. State, 588 S.W.2d

371, 375 (Tex. Crim. App. 1976). Under Brooks, a reviewing court must “give 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.” Brooks, Id. at 916; citing Jackson v. Virginia, Id. at 319;

see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). And when

conducting a legal sufficiency review, a reviewing court considers all evidence in

the record of the trial, whether admissible or inadmissible. Winfrey v. State, 393

S.W.3d 763, 767 (Tex. Crim. App. 2013); Conner v. State, 67 S.W.3d 192, 197



                                    Page 13 of 26
(Tex. Crim. App. 2001); Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App.

2006).

      When considering the evidence presented, a reviewing court may also

determine whether the trier of fact “got it wrong” because the verdict the trier of

fact renders is irrational. See Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009) (a legal sufficiency review “is restricted to guarding against the rare

occurrence when a factfinder does not act rationally.”).       As this Court noted

recently,

      “...sometimes appellate review of legal sufficiency involves simply
      construing the reach of the applicable penal provision in order to
      decide whether the evidence, even when viewed in the light most
      favorable to conviction, actually establishes a violation of the law.”

Delay v. State, 443 S.W.3d 909, 912-913 (Tex. Crim. App. 2014).                Delay

specifically deals with a situation where the acts that the State alleged did not

constitute a criminal offense under the totality of circumstances, Id. at 913, but the

concept is the same: when conducting a legal sufficiency review, a reviewing court

may consider whether the evidence support a conviction as a matter of law. A

reviewing court must ask whether there is some evidence that a rational trier of

fact cannot disregard or disbelieve.

      In Brooks, this Court provides a hypothetical in which although the properly

authenticated surveillance videotape of the event clearly shows that “B” committed

the robbery, a witness identifies “A” as the robber. Brooks, Id. at 906-907. Though
                                       Page 14 of 26
it is within the trier of fact’s prerogative to believe the witness and disregard the

video, based on all of the evidence, the trier of fact’s finding that “A” committed

the robbery is not a rational finding. Id.

      As the following arguments will show, the same “video-trumps-testimony”

logic discussed in Brooks should be applied in cases such as the one before this

Court. Further, in the case before this Court, not only did the trial court and Court

of Appeals have a State video that absolutely rebuts the testimony of the two

officers, but both courts had enlarged photographs from the same State video that

clearly show that Appellant did not kick Bogacki.      Yet, both courts disregarded

this evidence.


          iii. The findings of fact and legal conclusions by the Court of Appeals
               do not comport with the evidence presented at trial
      In its opinion, the Court of Appeals dismisses the State’s video evidence as

merely a “different version of the events.” Thompson, Id. at *8. In support, the

Court of Appeals cites Temple v. State, 390 S.W.3d 341, 363 (Tex. Crim. App.

2013), which quotes Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993),

and Castilla v. State, 374 S.W.3d 537, 540 (Tex. App. San Antonio 2012, pet. ref.).

      The facts and legal reasoning in Temple have no relation with the facts of the

case before this Court.     In Temple, the jury heard conflicting circumstantial

evidence regarding the defendant’s guilt and resolved the conflicts against the


                                     Page 15 of 26
defendant. Temple, 390 S.W.3d at 363. As this Court found, “[T]he jury inferred

from the circumstantial evidence that Appellant was guilty of the murder of his

wife.” Id. Further, this Court also found that the jury’s determination was not “so

outrageous that no rational trier of fact could agree.” Id., citing Wirth v. State, 361

S.W.3d 694, 698 (Tex. Crim. App. 2012). Unlike the case before this Court, in

Temple, evidence was presented from numerous sources, and there was not one

piece of evidence in Temple such as a State’s video and photos from a State video

as in Appellant’s case that would have made the findings of the trier of fact

“outrageous.” In fact, in Temple, there was no video that rebuts the single piece of

evidence supporting the conviction.

      And, the reliance by the Court of Appeals on Castilla is misplaced. The

Court of Appeals cites Castilla as a case that “distinguish(es) Brooks hypothetical

where video evidence did not ‘conclusively disprove’ but ‘merely called into

question’ eyewitness’s credibility.” However, the facts of Castilla are not similar

to the facts of the case before this Court, and in fact, the “video” in Castilla does

not rebut the officer’s testimony at all.

      In Castilla, an officer pursued a vehicle that was speeding. Castilla, 374

S.W.3d at 538. Instead of pulling over, the driver of the vehicle accelerated. Id.

Three other police cars joined the chase, which lasted about ten minutes and

involved speeds of over eighty miles per hour. Id. At one point, the vehicle made a


                                      Page 16 of 26
U-turn, almost striking one police vehicle. Id. That police vehicle was equipped

with a dashboard-mounted video camera that recorded the near-collision. Id.

      At the beginning of the chase, the vehicle contained four occupants (two

males and two females). Id. Twice during the chase, the vehicle stopped to allow

the females to exit. Id. A handgun and a Texas identification card fell out of the

vehicle when one of the females exited. Id. The two males resumed their flight in

the vehicle. Id. The vehicle stopped, the two males exited the vehicle, jumped a

nearby fence, and escaped. Id. at 539.

      The identification card that fell out of the vehicle belonged to the defendant.

Id. The vehicle also contained the defendant’s tax return and a financial statement

from an account registered in the defendant’s name. Id. The vehicle itself was

registered to the defendant’s mother. Id.

      At trial, based on his “brief view of the driver” when the vehicle almost hit

his patrol car, one of the officers testified that he was able to positively identify the

defendant as the driver of the vehicle. Id. The jury found the defendant guilty of

evading arrest. Id.

      The dashboard-camera’s video recording did not clearly show that someone

other than the defendant was driving the vehicle Id. at 540. In fact, the parties

conceded on appeal that the video is of poor quality and does not clearly identify

the driver. Id. at 540.    In Castilla, the court of appeals rejected the defendant’s


                                      Page 17 of 26
Brooks-video hypothetical argument because the video did not clearly identify the

driver, and not merely because the video called into question the officer’s

testimony. In fact, an unclear video that is inconclusive as to identity does not call

into question a person’s testimony at all.

      Finally, the statement by the Court of Appeals that Appleton’s expertise “did

not include any scientific knowledge of human movement” (Id. at *9) does not

take into consideration that some things in life must be considered using common

sense. The phrase “common sense” has been used countless times by judges of

reviewing courts, and as Appellant will show below, common sense will show that

as the video and photographs conclusively proved that he could not have

physically kicked Bogacki when Bogacki claimed he was kicked. See, e.g., Illinois

v. Gates, 462 U.S. 213, 230 (1983) (“Courts should not invalidate warrants by

interpreting affidavits in a hypertechnical, rather than a commonsense, manner)

(emphasis added); Miranda v. Ariz., 384 U.S. 436, 533-534 (1966) (White, J.

dissenting) (Common sense rejects the notion that if the police ask a suspect a

single question such as “Do you have anything to say?” or “Did you kill your

wife?” his response, if there is one, has somehow been compelled even if the

suspect has been clearly warned of his right to remain silent) (emphasis added);

N.J. v. T.L.O., 469 U.S. 325, 346 (1985) (“common-sense [conclusion] about

human behavior upon which ”practical people” -- including government officials --


                                     Page 18 of 26
are entitled to rely.) (emphasis added); Kelly v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992) (To be considered reliable, “as a matter of common sense,

evidence derived from a scientific theory must satisfy three criteria in any

particular case: (a) the underlying scientific theory must be valid; (b) the technique

applying the theory must be valid; and (c) the technique must have been properly

applied on the occasion in question.”) (emphasis added).


         iv. The trial court was not free to disregard the state’s own video and
             photographs from the video, and common sense dictates that
             Appellant could not have kicked Bogacki when Bogacki claimed
             he was kicked
      Unlike the facts in Castilla, the State’s own video clearly shows that

Appellant never kicked Bogacki. This conclusion is supported by the photographic

stills from the State’s video. In its opening argument, the State conceded that from

the angle that the police camera was positioned, the trial court is “unable to see a

real forceful kick.” (RR2, 8-9).    However, not only was there no “real forceful

kick,” there was no kick at all. The State relied upon the argument that “two sworn

police officers” who testify “under oath” somehow cannot lie, and the Court of

Appeals accepted this argument.        Despite the clear video and photographic

evidence showing that Appellant never kicked Bogacki, the trial court and Court of

Appeals accepted the testimony of Bogacki and Poligala over this clear video and

photographic evidence. The trial court and Court of Appeals did so despite the


                                    Page 19 of 26
following: (1) although he testified with remarkable clarity regarding one single

incident that occurred over two years prior to trial (alleged incident took place on

September 3, 2011 and trial took place October 2013), Bogacki did not recall

telling Appellant, “hey, you kicked me” (RR2, 37); (2) Bogacki did not recall

Appellant stating to him, “kick you? What do you mean?” (RR2, 38); (3) Bogacki

testified that Poligala witnessed the alleged kick while standing near the passenger

side of the front door (RR2, 26), yet Poligala stated that when he allegedly saw

Appellant kick Bogacki, Appellant was in the back of the vehicle facing outward,

Bogacki was in front of Appellant, and Poligala was standing to Bogacki’s

“immediate left” towards the rear of the vehicle. (RR2, 48, 58). As a result,

Poligala could not have “observed (Appellant) get a full extension of his leg and

his foot made contact with Bogacki’s leg just above the knee” (RR2, 61) as

Poligala claimed.

      Thus, over the clear evidence of the State’s own video and photographs from

that video, the trial court and Court of Appeals accepted the testimony of two

officers whose versions of the events were materially different from each other.

This Court should not let this result stand.

      Further, the State’s video and photographs from the video represent the best

evidence of Bogacki’s then-present sense impression and then-existing mental and

emotional condition. See Tex. Rule Evid. 803(1) & (3) (2011). The audio started


                                     Page 20 of 26
at the very moment Bogacki stated to Appellant that “you kicked me,” (RR2, 71-

72; RR3, SX-1; DX-1-2), but at that instant, Appellant’s knee never extended.

(RR2, 72; RR3, SX-1; DX-1-2). There was “no body language” that could be

associated with a kick. (RR2, 72; RR3, SX-1; DX-1-2). There was “no moving

back of (Appellant’s) body.” (RR2, 72; RR3, SX-1; DX-1-2). There was no

“thrust of Appellant’s hip” at the same time that Appellant’s leg allegedly came out

and made contact with Bogacki’s knee. And as stated above, at the instant that

Bogacki claimed that Appellant kicked him, Appellant was leaning forward,

which would have made a kick physically impossible. (RR2, 93; RR3, SX-1; DX-

1-2).      Thus, it is clear that Bogacki exclamation of “you kicked me” was

contrived.    Appellant again notes that at trial, Bogacki did not recall telling

Appellant, “hey, you kicked me,” (RR2, 37), most likely because Appellant never

kicked Bogacki.      This is a common-sense conclusion that does not require

“scientific knowledge of human movement” as the Court of Appeals felt was

missing in this case.

         And although the following case does not involve legal sufficiency, in

Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000), in describing

evidence presented in a videotape versus the testimony of an officer, this Court

noted,

         “Second, the nature of the evidence presented in the videotape does
         not pivot ‘on an evaluation of credibility and demeanor.’ Rather,
                                    Page 21 of 26
      the       videotape        presents      indisputable       visual
      evidence contradicting essential portions of (the officer’s
      testimony). In these narrow circumstances, we cannot blind
      ourselves to the videotape evidence simply because (the officer’s)
      testimony may, by itself, be read to support the Court of Appeals’
      holding.”

(emphasis added). The language used by this Court in Carmouche follows this

Court’s conclusions in both Brooks and in Lancon, in which with regards to

contradictory witness testimony, even when contradicting evidence is compelling,

the   court   must   give   deference    to   the   fact-finder’s   decision,   unless

the record clearly reveals an appropriate contrary result. Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008) (emphasis added).

      Appellant’s case is one where the trier of fact simply “got it wrong,” and the

record “clearly reveals an “appropriate contrary result” to the trial court’s finding

that Appellant kicked Bogacki.      This Court should thus find that the “video-

trumps-testimony” logic discussed in Brooks should be applied in Appellant’s case,

as not only did the State’s own video show that Appellant did not kick Bogacki,

but enhanced photographs from the video conclusively show this as well.

      As a result, this Court should grant discretionary review because not only

has the Court of Appeals decided an important question of state and federal law

that has not been, but should be, settled by this Court, but also because the Court of

Appeals decided an important question of federal law in a way that conflicts with

the applicable decisions of this Court and the Supreme Court of the United States.
                                    Page 22 of 26
See Tex. Rule App. Proc. 66.3(b) and (c) (2015). And in doing so, this Court

should reverse the Judgment of Conviction by Court and enter a judgment of

acquittal.


             v. In the alternative, should this Court find that Appellant is not
                guilty of Assault on a Public Servant but may have committed
                Resisting Arrest, this Court is empowered to reverse the Judgment
                of Conviction by Court and convict Appellant of Resisting Arrest.
      As Appellant argued in his Brief before the Court of Appeals, a reviewing

court is empowered to reverse the Judgment of Conviction by Court for Assault on

a Public Servant and convict Appellant for Resisting Arrest under Texas Penal

Code § 38.03. See Tex. Pen. Code § 38.03(a) (2011); see Bowen v. State, 374

S.W.3d 427, 432 (Tex. Crim. App. 2012) (A reviewing court may reform a

judgment of conviction and convict an appellant of a lesser-included offense even

if: (1) the jury was not instructed on the lesser-included offense, and (2) neither of

the parties asked for such an instruction.); Tex. Rule App. Proc. 43.2(c) (2015).

      Although Appellant did not kick Bogacki, Bogacki testified that when he

attempted to place Appellant into the police vehicle, Appellant refused, demanded

to speak to a supervisor, and then was “pushing and leaning towards” Bogacki

while Bogacki was “pushing back.” (RR2, 23-24, 34, 47-48). Thus, Appellant

may have been guilty of Resisting Arrest. A person commits Resisting Arrest if he

intentionally prevents or obstructs a person he knows is a peace officer, or a person


                                     Page 23 of 26
acting in a peace officer’s presence and at the peace officer’s direction, from

effecting an arrest, search, or transportation of him or her or another by using force

against the peace officer or another. Tex. Pen. Code § 38.03(a) (2011); see Agnew

v. State, 635 S.W.2d 167, 168 (Tex. App. El Paso 1982, no pet.); Pyykola v. State,

814 S.W.2d 462, 464 (Tex. App. Houston [14th Dist.] 1991, pet. ref.); Schrader v.

State, 753 S.W.2d 733, 735 (Tex. App. Austin 1988, pet. ref.); Talavera v. State,

626 S.W.2d 618, 619 (Tex. App. El Paso 1982, no pet.) (Resisting Arrest may be

charged where the defendant offers no resistance when told that he is under arrest,

but then resists when the officer attempts to take the defendant into custody).

      In addition, Resisting Arrest is a lesser-included offense of Assault on a

Public Servant because the element of force of Resisting Arrest makes it similar to

both Assault on a Public Servant and Aggravated Assault on a Public Servant. See

Gumpert v. State, 48 S.W.3d 450, 453 (Tex. App. Texarkana 2001, pet. ref.);

Gomer v. State, No. 05-02-00771-CR, 2003 Tex. App. LEXIS 5795, 2003 WL

21525312 (Tex. App. Dallas July 8, 2003) (memorandum opinion), Id. at *6

(resisting arrest can be lesser-included offense of assault of a public servant);

Bingham v. State, 630 S.W.2d 718, 719 (Tex. App. Houston [1st Dist.] 1982, no

pet.); Campbell v. State, 128 S.W.3d 662, 669-670 (Tex. App. Waco 2003).




                                    Page 24 of 26
IX. Conclusion and Prayer

      For the reasons stated in this petition, Appellant respectfully prays that this

Court grant discretionary review, reverse the Judgment of Conviction by Court, and

enter a judgment of acquittal. In the alternative, Appellant prays that this Court

reverse the judgment of conviction for Assault on a Public Servant, convict him of

Resisting Arrest, and remand the case back to the trial court for a new sentencing

hearing before a jury for misdemeanor Resisting Arrest.

                                      Respectfully submitted,

                                      Michael Mowla
                                      445 E. FM 1382 #3-718
                                      Cedar Hill, Texas 75104
                                      Phone: 972-795-2401
                                      Fax: 972-692-6636
                                      Email: michael@mowlalaw.com
                                      Texas Bar No. 24048680
                                      Attorney for Appellant




                                      /s/ Michael Mowla
                                      By: Michael Mowla




                                    Page 25 of 26
X. Certificate of Service

      This certifies that on January 26, 2015, a true and correct copy of this
document was served on the District Attorney’s Office, Collin County, Appellate
Division, John Rolater by email to daappeals@collincountytx.gov, and on Lisa
McMinn,       the     State    Prosecuting     Attorney,     by    email     to
Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting
Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc.
9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015)




                                       /s/ Michael Mowla
                                       By: Michael Mowla


XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4

      This certifies that this document complies with the type-volume limitations
because this document is computer-generated and does not exceed 4,500 words.
Using the word-count feature of Microsoft Word, the undersigned certifies that this
document contains 3,649 words in the document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix. This document also
complies with the typeface requirements because it has been prepared in a
proportionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4
(2015).



                                       /s/ Michael Mowla
                                       By: Michael Mowla




                                    Page 26 of 26
APPENDIX 1
No Shepard’s Signal™
As of: January 25, 2015 7:24 PM EST

                                         Thompson v. State
                           Court of Appeals of Texas, Fifth District, Dallas
                                  December 1, 2014, Opinion Filed
                                          No. 05-13-01620-CR

Reporter
2014 Tex. App. LEXIS 12852

ROBERT CHARLES THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION
OF UNPUBLISHED OPINIONS.

Prior History: [*1] On Appeal from the 219th Judicial District Court, Collin County, Texas. Trial
Court Cause No. 219-80385-2012.

Core Terms

video, kick, public servant, trial court, police officer, officers’, witnessed, assault, argues, seat

Case Summary

Overview
HOLDINGS: [1]-There was legally sufficient evidence to support each element of the offense of
assault on a public servant, Tex. Penal Code Ann. §§ 22.01(a)(1), 22.01(b)(1), because the trial court
was the exclusive judge of the credibility of the witnesses and the weight to be given their testimony
and it rejected defendant’s interpretation of the video and pictures.

Outcome
Judgment affirmed.

LexisNexis® Headnotes

  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
  Criminal Law & Procedure > ... > Standards of Review > Deferential Review > Credibility & Demeanor
  Determinations
  Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
  Criminal Law & Procedure > ... > Standards of Review > Deferential Review > Credibility & Demeanor
  Determinations

HN1 In reviewing the legal sufficiency of the evidence, the appellate court considers the evidence in
the light most favorable to the verdict to determine whether, based on that evidence and reasonable
                                              2014 Tex. App. LEXIS 12852, *1



inferences from that evidence, a rational finder of fact could have found the essential elements of the
offense beyond a reasonable doubt. Direct and circumstantial evidence are treated equally, and
circumstantial evidence alone can be sufficient to establish guilt. Because the fact finder is the sole
judge of the witnesses’ credibility and the weight to be given the evidence, the reviewing court defers
to the trier of fact’s resolution of any conflicts in testimony, weight of the evidence, and inferences
drawn.

    Criminal Law & Procedure > ... > Assault & Battery > Aggravated Offenses > Elements
    Criminal Law & Procedure > Criminal Offenses > Obstruction of Administration of Justice > Elements
    Criminal Law & Procedure > ... > Assault & Battery > Aggravated Offenses > Elements
    Criminal Law & Procedure > Criminal Offenses > Obstruction of Administration of Justice > Elements

HN2 A person commits assault on a public servant if he intentionally, knowingly, or recklessly causes
bodily injury to a person the actor knows is a public servant while the public servant is lawfully
discharging an official duty, Tex. Pen. Code Ann. §§ 22.01(a)(1); 22.01(b)(1) (Supp. 2014).

    Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence
    Criminal Law & Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence

HN3 The evidence is not rendered insufficient simply because appellant presented a different version
of the events.

Counsel: For Appellants: Michael Mowla, Cedar Hill, TX; Donald Guidry, Dallas, TX.

For Appellees: Haley Hendrix, Greg Willis, Daniel Lewis, John Rolater, Brandon Wonnacott,
McKinney, TX.

Judges: Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired.1 Opinion by Justice
O’Neill.

Opinion by: MICHAEL J. O’NEILL

Opinion

MEMORANDUM OPINION
Opinion by Justice O’Neill
Appellant Robert Charles Thompson appeals his conviction for the offense of assault on a public
servant. He was found guilty after a bench trial and received a sentence of ten years’ confinement
probated for four years. In two issues, appellant contends there was legally insufficient evidence to
support his conviction. We affirm the trial court’s judgment. Because the issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
1
    The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.

                                                            Page 2 of 5
                                      2014 Tex. App. LEXIS 12852, *1



BACKGROUND

On September 3, 2011, the manager of a Collin County bar contacted police regarding problems with
a patron. In response, Officer Michael Bogacki, on foot patrol, entered the bar and observed appellant.
Bogacki is employed by the City of Plano as a police officer. Bogacki observed that appellant had
watery eyes and that appellant’s breath [*2] smelled of alcohol. Bouncers at the bar told Bogacki that
appellant had been asked to leave, but refused, and was argumentative. One of the bouncers also
observed what he believed to be use of cocaine by appellant and his girlfriend. Bogacki believed that
appellant might be committing the offense of public intoxication. When appellant exited the bar to
obtain his car from the valet area, Bogacki detained appellant to investigate. Appellant refused to give
Bogacki his driver’s license when Bogacki requested it, and walked away. Another police officer
instructed appellant to return to Bogacki. Appellant was argumentative and demanded that Bogacki
perform a field sobriety test. Bogacki did so. He administered the horizontal gaze nystagmus test on
appellant, which showed six out of six clues of intoxication. Appellant refused to take the walk and turn
test, and walked away toward the valet. Bogacki then placed appellant under arrest for public
intoxication.

Bogacki then attempted to place appellant in the back seat of a squad car. He opened the rear side
passenger door. Appellant refused to get into the car. Bogacki pushed appellant into the car, and
appellant continued to resist. Appellant [*3] refused to pull his legs into the car. When Bogacki
attempted to fasten appellant’s seat belt, appellant kicked Bogacki in the knee. Bogacki testified that
the kick was painful, and his knee ″slightly hyperextended″ or bent backwards. Bogacki then grabbed
appellant’s foot ″and muscled it into the car and shut the door.″

Another City of Plano police officer, Chris Poligala, witnessed the kick. He was standing on Bogacki’s
left, toward the rear of the vehicle. When he witnessed the kick, Poligala pressed the button on the car’s
video recorder so that the previous ten seconds would be captured. He explained that only the video,
not the audio, would be activated. The audio would begin to record ten seconds later. The video was
admitted into evidence at trial. The camera was located on the driver’s side of the car. Appellant was
seated facing outward on the passenger side of the car. Therefore only appellant’s back is visible on
the recording.
James Appleton testified as a witness for appellant. Appleton owns a video production company and
testified that he is a video and audio expert. He often works for federal and state law enforcement
performing video and audio surveillance analysis. Appleton [*4] testified that he ″had some real
problems″ with the video of appellant taken from the squad car. First, it would have been possible to
obtain a ″full screen view″ of appellant in the back seat of the car. Second, there was no audio. Third,
the video should have begun earlier, when Bogacki first attempted to seat appellant in the car. Appleton
testified that most systems would allow several minutes or at least a full minute or to be captured when
the button was pressed, rather than ten seconds. Appleton also testified that he enhanced the video, and
stated that in his opinion appellant did not kick Bogacki: ″There is no body language that is associated
with that kick. There was no moving back of the body. There was no extension of the knee.″ The
enhanced video ″clearly showed″ that appellant’s leg was bent, not extended, at the time of the alleged
kick. Appleton also testified that in his opinion the video offered by the State had been altered because
it was ″completely inconceivable″ that the ten-second recording would begin exactly when Bogacki
said ″You kicked me″ to appellant.
                                                 Page 3 of 5
                                      2014 Tex. App. LEXIS 12852, *4



The video identified by Poligala was admitted into evidence as State’s Exhibit 1. The enhanced video
identified [*5] by Appleton was admitted into evidence as Defense Exhibit 2. Both videos were played
for the trial court at the trial and are included in the appellate record.

STANDARD   OF   REVIEW

HN1 In reviewing the legal sufficiency of the evidence, we consider the evidence in the light most
favorable to the verdict to determine whether, based on that evidence and reasonable inferences from
that evidence, a rational finder of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). Direct and circumstantial evidence are
treated equally, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Because the fact finder is the sole judge of the witnesses’
credibility and the weight to be given the evidence, the reviewing court defers to the trier of fact’s
resolution of any conflicts in testimony, weight of the evidence, and inferences drawn. See Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

APPLICABLE LAW

HN2 A person commits assault on a public servant if he intentionally, knowingly, or recklessly causes
bodily injury to a person the actor knows is a public servant while the public servant is lawfully
discharging an official duty. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1) (West Supp. 2014).
Appellant does not [*6] challenge the State’s allegations that Bogacki was a public servant lawfully
discharging an official duty. His only contention is that the evidence is insufficient to show that he
caused bodily injury to Bogacki. APPLICATION OF LAW TO FACTS

In his first issue, appellant argues that the evidence is insufficient to support the trial court’s finding
of guilty because ″the State’s photos and videos clearly show that Appellant did not commit the
offense.″ He argues that the trier of fact chose to believe the inconsistent testimony of two police
officers ″over the irrefutable video and photographic evidence.″ He contends the evidence must be
sufficient for a ″rational″ trier of fact to find all of the elements of the offense beyond a reasonable
doubt, and it was not rational for the trial court to believe the police officers when their testimony was
inconsistent and was refuted by the video evidence.

Appellant argues the police officers’ testimony is inconsistent about where Poligala was standing.
Poligala testified he was standing toward the rear of the vehicle, to Bogacki’s left, while Bogacki
testified Poligala was near the front door, which would have been to Bogacki’s right. Appellant [*7]
argues this is just one of the ″material inconsistencies″ in the officers’ testimony. He urges, however,
that the ″best evidence of what occurred that evening″ is in the State’s own video, and pictures taken
from the video. He contends that neither the video nor the pictures show any ″body language that is
associated with a kick.″ He argues the video shows his leg was bent, not extended, and he was leaning
forward, not back, when the kick allegedly occurred. He compares the evidence to the hypothetical
convenience store robbery described in Brooks in which a witness identifies person A as the
perpetrator, but surveillance video shows that person B actually committed the offense. See Brooks,
323 S.W.3d at 907. He contends the video shows he did not commit the offense, and concludes that the
State failed to prove each of the essential elements of assault on a public servant.

                                                 Page 4 of 5
                                     2014 Tex. App. LEXIS 12852, *7



The State responds that two officers testified unequivocally that appellant kicked Bogacki. The
officers’ testimony was based on their presence and observations at the scene. The video, filmed from
behind appellant, shows appellant ″moving and struggling,″ but does not show his legs at the moment
of the kick. The video was not conclusive [*8] support for either the officers’ or appellant’s version
of events, and therefore the trial court was required to make its finding of guilt or innocence based on
the credibility of the witnesses.

Although Appleton testified there was no kick, his opinions were based on the limited view of the
video. And Appelton conceded that his expertise extended only to the technical aspects of the
recordings, and did not include any scientific knowledge of human movement. His testimony about
appellant’s movements, or lack of movement, was ″common sense″ that any layperson including the
trial judge would have. While the trial court could have accepted Appleton’s interpretation of the video
and pictures, and rejected the officers’ testimony, it did not do so. The trial court was the exclusive
judge of the credibility of the witnesses and the weight to be given their testimony. See Brooks, 323
S.W.3d at 899. HN3 ″[T]he evidence is not rendered insufficient simply because appellant presented
a different version of the events.″ Temple v. State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013) (quoting
Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993)); see also Castilla v. State, 374 S.W.3d 537,
540 (Tex. App.—San Antonio 2012, pet. ref’d) (distinguishing Brooks hypothetical where video
evidence did not ″conclusively disprove″ but ″merely called into question″ eyewitness’s credibility).
We conclude there was legally sufficient [*9] evidence to support each element of the offense of
assault on a public servant. See TEX. PEN. CODE ANN. §§ 22.01(a)(1); 22.01(b)(1). We overrule
appellant’s first issue.

Because of our conclusion that the evidence was legally sufficient to support appellant’s conviction for
assault on a public servant, we need not address his second issue that in the alternative he should be
convicted of the lesser offense of resisting arrest. We affirm the trial court’s judgment.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE

Do Not Publish

TEX. R. APP. P. 47

JUDGMENT

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 1st day of December, 2014.




                                                Page 5 of 5
