
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-97-00179-CR



Cecilia Christine Brooks, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

NO. 19,288, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING





	Appellant, Cecilia Christine Brooks, was convicted of assault on a public servant.  See Tex.
Penal Code Ann. § 22.01(a)(1), (b)(1) (West 1994 & Supp. 1998).  The jury assessed punishment at two
years' confinement in the Institutional Division of the Texas Department of Criminal Justice, probated for
two years.  On appeal, Brooks asserts two points of error, complaining that (1) the evidence is factually
insufficient to support the conviction, and (2) the trial court violated article 36.27 of the Code of Criminal
Procedure in its response to a jury question.  We will reverse.


FACTUAL AND PROCEDURAL BACKGROUND
	On October 4, 1996, police officer Jeffrey Gee responded to a family disturbance report
in Rockdale, Texas.  This was the officer's second visit to the same residence that day.  He arrived at the
residence wearing his police uniform.  Crystal Smith, who lived in the house, told Officer Gee that she had
allowed appellant and her husband, Terrence Brooks, to live in the house for some time while they "got
back on their feet."  Smith stated there was a disagreement over payment for part of the bills.  However,
Terrence Brooks told Officer Gee that his cousin had given him permission to be in the house and that
Smith did not have the authority to have him removed.
	Officer Gee testified that appellant kept interrupting as he attempted to investigate the
situation.  He finally told appellant to wait outside on the porch while he conducted his investigation; she
did so at first, but soon came back into the house and interrupted again.  At that point, the officer physically
ushered appellant to the porch, whereupon she became combative and struck him in the eye.  Officer Gee
then placed appellant under arrest for assault.  Appellant was indicted for the offense of assaulting a public
servant.  The jury found appellant guilty and sentenced her to two years' confinement, probated.

DISCUSSION
	Appellant first asserts that the evidence is factually insufficient to support the jury's verdict. 
In conducting a factual sufficiency review, the court views all the evidence without the prism of "in the light
most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 134 (Tex.
Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely
filed).
	Sufficiency of the evidence is measured against the elements of a hypothetically correct jury
charge for the case as authorized by the indictment.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997).  To show assault on a public servant here, the State first had to show that appellant
intentionally or knowingly caused bodily harm to another, Penal Code § 22.01; (1) the State also had to show
that the offense was committed against a person the actor knew was a public servant while the public
servant was lawfully discharging an official duty, or was committed in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant, Penal Code § 22.01(b).
	Appellant does not dispute that she struck Officer Gee, nor that he suffered bodily harm
as a result.  Rather, appellant's primary contention is that the evidence is factually insufficient to show that
she possessed the requisite mental state when she caused the injury to Officer Gee.  A person acts
intentionally with respect to the result of her conduct when it is her conscious objective or desire to cause
that result.  Penal Code § 6.03(a).  A person acts knowingly with respect to a result of her conduct when
she is aware that her conduct is reasonably certain to cause the result.  Id. § 6.03(b).
	Appellant testified that the incident was entirely accidental.  Appellant's husband testified
that appellant made no conscious attempt to hit Officer Gee, but was merely trying to free herself from him
as he physically guided her to the porch, all of which occurred before she had been placed under arrest. 
According to Officer Gee's testimony, he started to escort appellant to the porch when she began flailing
her arms.  He tried to gain control of her by putting both of his arms on her arms, but she kept swinging her
arms.  They went around in two circles as they struggled, and then she took her left hand, swung it around
and struck him in the eye.  At that point she was told she was under arrest for assault.
	The principles governing the resolution of evidentiary conflicts are well established:

	The jury is the trier of fact, the exclusive judge of the credibility of the witnesses
and of the weight to be given their testimony.  The jury is free to accept or reject all or any
part of the evidence presented by either party.  Reconciliation of evidentiary conflicts is
solely a function of the trier of fact.  The jury may draw reasonable inferences and make
reasonable deductions from the evidence.

Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.) (citations omitted).
	Despite appellant's and Terrence Brooks's testimony to the contrary, a jury could have
reasonably inferred from Officer Gee's description of the incident that appellant swung her left hand at the
officer with the intention of injuring him or with knowledge that an injury was reasonably certain to occur. 
Such a conclusion is not so contrary to the evidence as to be clearly wrong and unjust.  The point of error
is overruled.
	In appellant's other point of error, she contends the court abused its discretion and
committed reversible error when it improperly gave additional and erroneous instructions to the jury in
violation of article 36.27 of the Texas Code of Criminal Procedure. (2)  During deliberations in the
guilt/innocence phase of the trial, the jury sent a note to the judge.  In open court with all parties present,
the judge read the note aloud:  "We cannot agree.  Please advise and instruct."  The judge responded by
reading a written statement apparently in accordance with article 36.27.  He encouraged the jurors to
continue deliberating in an effort to arrive at a verdict that would be acceptable to all members of the jury
if it could be achieved without doing violence to their own consciences.  After reading the prepared
statement, however, the judge began questioning the foreperson orally.  It is of this colloquy that appellant
now complains:

THE COURT:  And could I inquire as to -- is there a reason for the deadlock?

FOREPERSON:  Some believe that she intentionally did it and some believe she didn't
intentionally mean to -- to harm.

THE COURT:  All right.  And I hope you understand what I told you concerning matters
of law during voir dire.  The law is simply that a person may not resist an arrest or resist
a police officer's control, even if the police officer is attempting to arrest one unlawfully. 
And you're responsible for your conduct -- if you set about a course of conduct, you're
responsible for the natural and probable consequences of your conduct.

FOREPERSON:  So, is this about resisting arrest or is this about intentionally meaning to
harm him? 

THE COURT:  This is about whether she intentionally or knowingly harmed him.  And
basically, the law says, if you do an act, then you're responsible for the natural and
probable consequences of that act.

FOREPERSON:  Say that one more time.

THE COURT:  The law is that, if you undertake and do an act, then you are responsible
for the natural and probable consequences of that act.  You may not resist a police officer.

FOREPERSON:  So, resisting goes in hand with this?

THE COURT:  In essence, yes.  If an officer tries to control an individual, an individual
may not resist that officer's control and/or arrest.  When you do so, you do so at your own
peril.

FOREPERSON:  And so, what happens as a result --

THE COURT:  With that law, you have to decide -- apply the facts to the law -- the law
to the facts, I should say.

FOREPERSON:  So, it is the same?

THE COURT:  In essence yes,  And with that, we'd ask you to continue deliberating and
arrive at a verdict, if possible.


	In general, article 36.27 is mandatory, and noncompliance is reversible error.  Revell v.
State, 885 S.W.2d 206, 211 (Tex. App.--Dallas 1994, pet. ref'd).  When the trial judge responds
substantively to a jury question during deliberations, that communication essentially amounts to an additional
or supplemental jury instruction.  Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993).  In the
present case, the judge's response was substantive.
	Our review of the record, however, reveals that appellant made no objection to the court's
oral statements to the jury.  Because appellant failed to object at trial, her point of error may be sustained
only if she can show egregious harm, i.e., harm so great that she was denied a fair and impartial trial.  See
Skinner v. State, 956 S.W.2d 532, 544 (Tex. Crim. App. 1997); Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985) (op. on reh'g).  Errors that result in egregious harm are those which affect
the essential dispute in a case or disturb the basis of the defensive theory.  Almanza, 686 S.W.2d at 172;
see also Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
 In determining whether egregious harm occurred, a reviewing court must review the error
"in light of the entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information revealed by the record of
the trial court as a whole."  Almanza, 686 S.W.2d at 171.  In some cases, erroneous jury instructions
alone can demonstrate egregious harm.  Hutch, 922 S.W.2d at 171; see Ruiz v. State, 753 S.W.2d 681,
687 (Tex. Crim. App. 1988) (failure of judge to instruct jury on State's burden, which effectively lowered
State's burden of proof, may have misled jury and was egregious harm); Manning v. State, 730 S.W.2d
744, 750 (Tex. Crim. App. 1987) (improperly stated burden of proof which may have harmed appellant
was egregious harm).
	In the present case, the jury evidently had deadlocked on the issue of whether appellant
possessed the mental state required for the offense of assault.  We read the judge's oral statements in that
regard to say that if one intentionally resists arrest or control by an officer and, in the process, causes bodily
injury, then that person is guilty of assaulting the officer regardless of the intent to injure because bodily
injury is a natural result of such resistance.  That is an incorrect statement of the law.  To be guilty of assault,
one must intend the result of the conduct, not just the conduct itself.  See Fuller v. State, 819 S.W.2d
254, 256 (Tex. App.--Austin 1991, pet. ref'd).  The elements of the offense of resisting arrest are that one
intentionally prevents or obstructs an officer from effecting an arrest, search or transportation of the actor
or another person by the use of force against the officer.  See Penal Code § 38.03.  The requisite mental
state for resisting arrest differs from that required by the offense of assault on a public servant.  The critical
distinction for purposes of the present case is that assault requires intentionally or knowingly causing a
certain result, while resisting arrest merely requires intent to commit the stated conduct.  Compare Fuller,
819 S.W.2d at 256, with Pyykola v. State, 814 S.W.2d 462, 463-64 (Tex. App.--Houston [14th Dist.]
1991, pet. ref'd).  The oral comments made by the trial court in this case blurred, if not eliminated, that
distinction.
	In examining the present case for egregious harm, we recognize that while the evidence was
factually sufficient to support a conviction, it was not overwhelming.  The original jury charge contained
accurate instructions concerning the required mental state.  With those correct instructions, the jury was
deadlocked; after the additional but erroneous oral instructions were delivered, however, the jury quickly
came to a unanimous verdict of conviction.  The jury's question to the court concerned the nature of the
requisite mental state, which comprised the only essential factual dispute in the case.  Appellant was not
charged with resisting arrest, but with assault.  The court's error affected the very basis of the case, vitally
affecting appellant's primary defensive theory, i.e., that the strike and resulting injury were accidental. 
Considering the record as a whole, we conclude that appellant has demonstrated egregious harm.  The
point of error is sustained.
CONCLUSION
	Having sustained appellant's second point of error, we reverse the judgment of conviction
and remand the cause to the trial court for a new trial.


  
					J. Woodfin Jones, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Remanded
Filed:   April 24, 1998
Publish
1.        Assault may also be committed by recklessly causing bodily harm to another, but that possibility was
not authorized in the indictment.
2.        Article 36.27 states:

When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall
inform the court thereof.  Any communication relative to the cause must be written, prepared
by the foreman and shall be submitted to the court through the bailiff.  The court shall answer
any such communication in writing, and before giving such answer to the jury shall use
reasonable diligence to secure the presence of the defendant and his counsel, and shall first
submit the question and also submit his answer to the same defendant or his counsel or
objections and exceptions, in the same manner as any other written instructions are submitted
to such counsel, before the court gives such answer to the jury, but if he is unable to secure
the presence of the defendant and his counsel, then he shall proceed to answer the same as
he deems proper.  The written instruction or answer to the communication shall be read in
open court unless expressly waived by the defendant.  All such proceedings in felony cases
shall be a part of the record and recorded by the court reporter.  Tex. Code Crim. Proc. Ann.
art. 36.27 (West 1981) (emphasis added).


. Crim. App. 1988) (failure of judge to instruct jury on State's burden, which effectively lowered
State's burden of proof, may have misled jury and was egregious harm); Manning v. State, 730 S.W.2d
744, 750 (Tex. Crim. App. 1987) (improperly stated burden of proof which may have harmed appellant
was egregious harm).
	In the present case, the jury evidently had deadlocked on the issue of whether appellant
possessed the mental state required for the offense of assault.  We read the judge's oral statements in that
regard to say that if one intentionally resists arrest or control by an officer and, in the process, causes bodily
injury, then that person is guilty of assaulting the officer regardless of the intent to injure because bodily
injury is a natural result of such resistance.  That is an incorrect statement of the law.  To be guilty of assault,
one must intend the result of the conduct, not just the conduct itself.  See Fuller v. State, 819 S.W.2d
254, 256 (Tex. App.--Austin 1991, pet. ref'd).  The elements of the offense of resisting arrest are that one
intentionally prevents or obstructs an officer from effecting an arrest, search or transportation of the actor
or another person by the use of force against the officer.  See Penal Code § 38.03.  The requisite mental
state for resisting arrest differs from that required by the offense of assault on a public servant.  The critical
distinction for purposes of the present case is that assault requires intentionally or knowingly causing a
certain result, while resisting arrest merely requires intent to commit the stated conduct.  Compare Fuller,
819 S.W.2d at 256, with Pyykola v. State, 814 S.W.2d 462, 463-64 (Tex. App.--Houston [14th Dist.]
1991, pet. ref'd).  The oral comments made by the trial court in this case blurred, if not eliminated, that
distinction.
	In examining the present case for egregious harm, we recognize that while the evidence was
factually sufficient to support a conviction, it was not overwhelming.  The original jury charge contained
accurate instructions concerning the required mental state.  With those correct instructions, the jury was
deadlocked; after the additional but erroneous oral instructions were delivered, however, the jury quickly
came to a unanimous verdict of conviction.  The jury's question to the court concerned the nature of the
requisite mental state, which comprised the only essential factual dispute in the case.  Appellant was not
charged with resisting a