                                                                                 ACCEPTED
                                                                             01-14-00618-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                        6/25/2015 2:27:36 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                 NOS. 01-14-00618-CR & 01-14-00619-CR

                 IN THE FIRST COURT OF APPEALS     FILED IN
                                             1st COURT OF APPEALS
                                                        HOUSTON, TEXAS
                            HOUSTON, TEXAS           6/25/2015 2:27:36 PM
                                                     CHRISTOPHER A. PRINE
                                                             Clerk



                  DENNIS STEELE, APPELLANT
                              V.
                 THE STATE OF TEXAS, APPELLEE



              BRIEF FOR THE STATE OF TEXAS

                CAUSE NUMBERS 13CR3049 & 13CR3050
               IN THE 56th JUDICIAL DISTRICT COURT
                  OF GALVESTON COUNTY, TEXAS

                  ATTORNEYS FOR THE STATE OF TEXAS

REBECCA KLAREN               ASSISTANT CRIMINAL DISTRICT ATTORNEY
                             STATE BAR NO. 24046225

JACK ROADY                   CRIMINAL DISTRICT ATTORNEY

600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us

ORAL ARGUMENT WAIVED
                     IDENTITY OF PARTIES AND COUNSEL



Presiding Judge                            Honorable Lonnie Cox

Appellant                                  Dennis Steele

Appellee                                   The State of Texas

Attorney for Appellant                     James Dennis Smith

      (Trial Only)                         Houston, Texas

Attorney for Appellant                     Daniel Lazarine

      (Appeal Only)                        Houston, Texas

Attorney for State                         Elizabeth Cuchens & Kayla Allen

      (Trial Only)                         Galveston, Texas

Attorney for State                         Rebecca Klaren

      (Appeal Only)                        Galveston, Texas




                                    ii
                                     TABLE OF CONTENTS

SECTION                                                                                  PAGE

Identity of Parties and Counsel                                                          ii

Table of Contents                                                                        iii

Index of Authorities                                                                     vi

Summary of the Argument                                                                  2

Statement of Facts                                                                       3

       I.      Steele’s Drunk Driving & Arrest                                           3

       II.     Steele Assaulted Two Public Servants                                      4

       III.    Conviction & Punishment                                                   8

First Issue                                                                              10
              A court must provide a lesser included offense instruction if the
              lesser offense’s elements are proven by the same or less facts; if
              the injury is less serious; requires a less culpable mental state; or is
              an attempt of the greater offense.

              How’d the Court err by refusing the instruction when resisting
              arrest isn’t a lesser offense of assault on a public servant because
              resisting requires three elements that differ from the greater
              offense?

       Argument and Authorities                                                          10

       I.      Standard Of Review Jury Charge Error                                      10

       II.     Lesser Included Offense Relevant Law                                      10

       III.    The Elements Are Not The Same: Resisting Arrest Is Not A
               Lesser Included Offense Of Assault On A Public Servant                    12


                                                iii
      IV.      Conclusion: Overrule                                               14

Second Issue                                                                      16
           A court must provide a self-defense instruction if the defendant
           shows before he resisted an arrest or search, the officer used or
           attempted to use greater force than necessary.

              How’d the Court err by refusing the instruction when Steele was
              already under arrest and wasn’t being searched when he fought
              the officers and there was no evidence of unnecessary force?

      Argument and Authorities                                                    16

      I.       Self-Defense Relevant Law                                          16

      II.      Steele Was Not Entitled To A Self-Defense Instruction              17

               A. Self-defense doesn’t apply to Steele because he was already
                  arrested when he assaulted the officers                         17

               B. Steele presented no evidence the officers used unnecessary
                  force before he assaulted them                                  19

      III.     Conclusion: Overrule                                               21

Third Issue                                                                       22
              Insufficient evidence only applies to the essential elements of
              the offense. The State only has to prove at trial that the victim
              is the same as in the indictment. The name isn’t an essential
              element.

              Viewing the evidence in the light most favorable to the verdict,
              Officer Cisneros testified Steele assaulted him. The officers
              identified Cisneros as the victim.

              How’s the evidence insufficient?

      Argument and Authorities                                                    22

      I.       Standard Of Review For Sufficiency Of The Evidence                 22

                                             iv
       II.    The Name Isn’t An Essential Element Of Assault On A
              Public Servant                                          23
       III.   The Evidence Proves Steele Assaulted The Victim Named
              In The Indictment                                       24

       IV.    Conclusion: Overrule                                    26

Conclusion and Prayer                                                 27

Certificate of Service                                                28

Certificate of Compliance                                             28




                                         v
                                      INDEX OF AUTHORITIES


CASES 

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) ..................................10

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ......................................10

Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012) ....................................12

Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013) .........................................10

Dunklin v. State, 194 S.W.3d 14, 22 (Tex. App.---Tyler 2006, no pet.) ........................14

Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). ................................. 23, 24

Garcia v. State, No. 01–05–01055–CR, 2006 WL 2885057, at *6 (Tex. App.---Houston
 [1st Dist.] Oct. 12, 2006, pet. ref’d).................................................................. 13, 14

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). ........................................23

Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.---Beaumont 2001, pet. ref’d) ................14

Goddard v. State, 154 S.W.3d 231, 231 (Tex. App.---Amarillo 2005, no pet.) ...............20

Gonzales v. Kelley, No. 01–10–00109–CV, 2010 WL 2650615 (Tex. App.---Houston [1st
 Dist.] 2010, no pet.) ................................................................................................20

Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007) .................................. 11, 12

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). .......................................23

Johnson v. State, 07-09-00251-CR, 2011 WL 677347, at *2 (Tex. App.---Amarillo Feb.
  25, 2011, pet. ref’d) .................................................................................................13

Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012). ....................................24



                                                            vi
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) .......................................10

Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). .................................23

Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000). .....................................18

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998)...............................................11

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ..........................................10

Petersen v. State, 01-11-00740-CR, 2012 WL 2106720, at *1 (Tex. App.---Houston [1st
  Dist.] June 7, 2012, no pet.) ....................................................................................14

Porteous v. State, 259 S.W.3d 741, 747-48 (Tex. App.---Houston [1st Dist.] 2007, no
  pet.). ................................................................................................................ 17, 21

Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011) ..........................................12

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993) .............................11

Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). .................................11

Wortham v. State,412 S.W.3d 552, 555 (Tex. Crim. App. 2013)....................................12

Yarian v. State, 2-04-015-CR, 2005 WL 852156, at *2 (Tex. App.---Fort Worth Apr. 14,
 2005, pet. struck) ....................................................................................................19

Young v. State, 622 S.W.2d 99, 100 (Tex. Crim. App. 1981) .........................................19


STATUTES 

TEX. CODE CRIM. PROC. art. 15.22. ...........................................................................18

TEX. CODE CRIM. PROC. art. 37.09 ............................................................................11

TEX. PENAL CODE § 1.07 (41)(A). .............................................................................24



                                                              vii
TEX. PENAL CODE § 22.01(a)(1), (b)(1). ........................................................ 13, 14, 24

TEX. PENAL CODE § 38.03(a).............................................................................. 13, 14

TEX. PENAL CODE § 9.31(c)(1). .................................................................................17

TEX. PENAL CODE § 9.31(c). .............................................................................. 17, 18

TEX. PENAL CODE §49.01(2)(A) ..................................................................................4




                                                       viii
                        NOS. 01-14-00618-CR & 01-14-00619-CR


                                           IN THE

                                  COURT OF APPEALS

                                          FOR THE

                              FIRST DISTRICT OF TEXAS

                                   HOUSTON, TEXAS


                           DENNIS STEELE, Appellant
                                     V.
                          THE STATE OF TEXAS, Appellee


                        Appealed from the 56th Judicial District
                          Court of Galveston County, Texas
                          Cause Nos. 13CR3049 & 13CR3050



                        BRIEF FOR THE STATE OF TEXAS




TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,

and files this brief for the State of Texas.


 There is a one volume Clerk’s Record for each cause number. They are referred to in the State’s
 Brief as “C.R. 3049: page” or “C.R. 3050: page”. The Reporter’s Record is multiple volumes and is
 referred to as “R.R. volume number: page”.
                        SUMMARY OF THE ARGUMENT

       Dennis Steele raises three issues in attempt to secure a reversal of his two assault

on a public servant convictions. First, he argues the Trial Court erred by refusing to

include a jury instruction that resisting arrest is a lesser included offense of assault on a

public servant. The Trial Court didn’t err because the elements required to prove

resisting arrest are different than the elements required to prove assault on a public

servant.

       Second, Steele argues the Trial Court erred by not including a self-defense against

unnecessary force instruction in the jury charge. Steele wasn’t entitled to the instruction

because it applies only to arrests and searches. Steele was already under arrest when he

assaulted the officers and the officers weren’t searching him. Additionally, Steele didn’t

show the officers used unnecessary force before he resisted.

       Third, Steele argues the evidence was fatally insufficient because the victim didn’t

testify his first name began with an “E”. The victim’s name is not an essential element of

the offense. The State was required to prove that the victim alleged in the indictment is

the same person as the victim proved at trial. The State met its burden.

       All of Steele’s issues should be overruled.




                                              2
                              STATEMENT OF FACTS

IV.     Steele’s Drunk Driving & Arrest

        Around 5 p.m. on a November afternoon, Dennis Steele drove his car through a

construction barricade, onto freshly poured concrete, and into a dirt berm.1 Steele’s

engine caught on fire, but he didn’t get out of the car.2 Instead, construction workers

went up to his car and tried to get him out.3 Steele was unaware of what was going on.4

Steele’s doors were locked and his window was up.5 At some point, Steele opened the

door.6 The construction superintendent testified Steele was obviously intoxicated, he

couldn’t stand, and smelled of alcohol when he got out of the car.7 Witnesses called

911.8

        When Officer Berg arrived at the wreck, he took Steele into custody for suspicion

of drunk driving.9 He cuffed Steele and put him in the back of his police car while he

interviewed witnesses.10 Officer Berg brought Steele to the Texas City Jail and then into

the DWI interview room.11 Steele completed three intoxication tests and consented to a



1
  R.R. III: 139, 141-42.
2
  R.R. III: 142-44.
3
  R.R. III: 144-45.
4
  R.R. III: 144.
5
  R.R. III: 144.
6
  R.R. III: 145.
7
  R.R. III: 146-47.
8
  R.R. III: 146.
9
  R.R. III: 151, 159.
10
   R.R. III: 159.
11
   R.R. III: 160-61, 165.

                                            3
breath test.12 Steele blew .223 and .20813---well over twice the legal limit.14

       Officer Berg testified Steele didn’t get combative with him in the DWI

investigation room.15 Although, the officer had to tell Steele several times where to

stand16 and Steele kept going into the storage closet looking for something.17 Based on

his odd demeanor, Officer Berg put Steele in a holding cell, rather than the drunk tank,

until Steele’s booking could be completed.18

V.     Steele Assaulted Two Public Servants

       Officer Berg testified after he left Steele, he went on his lunch break.19 Before the

officer could finish eating, he and all other officers were sent back to the jail because

Steele was fighting.20 Berg told the jury when he returned to the jail, Steele’s demeanor

had completely changed.21 He was screaming and was very upset.22

       Detention Officer Jackson (a petite female)23 testified that she was working with

Detention Officer Owens the evening Steele was brought into their city jail.24 She

explained that when there are multiple inmates to be booked in, they’re put in one of

12
   R.R. III: 166-67.
13
   R.R. III: 175.
14
   See TEX. PENAL CODE §49.01(2)(A) (defining intoxication).
15
   R.R. III: 169.
16
   R.R. III: 169.
17
   R.R. III: 169.
18
   R.R. III: 170.
19
   R.R. III: 171.
20
   R.R. III: 171.
21
   R.R. III: 171-72.
22
   R.R. III: 172.
23
   R.R. III: 201.
24
   R.R. III: 194.

                                                4
two holding cells until the booking process is complete.25 She also explained that when

inmates are transferred to Galveston County Jail, the inmates are separated by gender

and put into the two holding cells until they are moved.26 Detention Officer Jackson said

if there are inmates in the holding cells before a transfer happens, the inmates are moved

to a different part of the booking area.27

        Detention Officer Jackson testified the holding cell was under video surveillance,

although the audio wasn’t recorded.28 The Trial Court admitted the video of Steele in the

holding cell and his assault on the officers.29

        Detention Officer Jackson testified and the video shows Steele was still in one of

the holding cells when there was an inmate transfer.30 Jackson testified they waited to

move Steele until the inmate transfer officer got to the jail.31 She testified the transfer

officer was “Officer Eric Cisneros”.32

        Detention Officer Jackson testified when she went into the holding cell, Steele

was on the ground with his shirt over his head.33 She said he appeared to be sleeping.34

She tapped Steele on the foot.35 She testified she asked him to stand up so that they

25
   R.R. III: 196.
26
   R.R. III: 197-98.
27
   R.R. III: 198.
28
   R.R. III: 205-06; State’s Exhibit 2.
29
   R.R. III: 206; State’s Exhibit 2.
30
   R.R. III: 201; State’s Exhibit 2.
31
   R.R. III: 201-02.
32
   R.R. III: 202.
33
   R.R. III: 203.
34
   R.R. III: 203.
35
   R.R. III: 202; State’s Exhibit 2.

                                                  5
could move him to an intoxication cell.36 He didn’t respond to her.37

        Detention Officer Jackson asked Officer Cisneros for help.38 When Officer

Cisneros walked into the cell and asked Steele to stand up because they were moving

him to another cell to sleep, Steele responded, “Fuck you. Suck my dick.”39 Steele also

stuck out his middle finger at Cisneros.40

        Officer Cisneros didn’t raise his voice and didn’t curse at Steele.41 The officer

remained calm.42 Cisneros asked Detention Officer Jackson to get Detention Officer

Owens to help him.43 Owens went into the cell and tried to help Cisneros.44 Steele

wouldn’t get up and wouldn’t respond to the officers’ requests.45 Detention Officer

Owens testified Steele eventually responded to him by saying, “Fuck you. I’m not going

anywhere.”46

        Officer Cisneros told Steele that if he didn’t get up, he was going to pick him up

and escort him to another cell.47 Steele didn’t respond.48 Officers Cisneros and Owens




36
   R.R. III: 202-03.
37
   R.R. III: 203; State’s Exhibit 2.
38
   R.R. III: 203.
39
   R.R. III: 204; IV: 11.
40
   R.R. III: 204.
41
   R.R. III: 204.
42
   R.R. III: 209.
43
   R.R. III: 204.
44
   R.R. III: 204.
45
   R.R. III: 204.
46
   R.R. III: 242.
47
   R.R. III: 205.
48
   R.R. III: 205.

                                             6
reached down to pick Steele up by his arms.49 Detention Officer Jackson testified and

the video shows, the officers didn’t jerk Steele up quickly.50 But the video shows and

Detention Officer Owens and Officer Cisneros testified that Steele stuck his arm out of

his shirt and grabbed Cisneros’s arm.51

        Detention Officer Jackson testified she called dispatch and told them they needed

assistance in the jail.52 Officer Berg and Corporal Moreno came to help.53

        The video shows Steele was combative as soon as the officers touched him.54 He

instantly began fighting and pulling the officers.55 Officer Cisneros testified that during

the assault he told Steele to stop resisting, that they didn’t want anyone hurt, and they

only wanted to move him.56 Officer Cisneros testified Steele reached for his arms, chest,

and neck.57 Cisneros testified Steele scratched, hit, and kicked him.58 The video shows

Steele grabbed the officers.59 The officers used their full bodies but were unable to

restrain Steele.60 Steele continued to fight.61 The officers testified Steele kicked, hit, and




49
   R.R. III: 205, 243; State’s Exhibit 2.
50
   R.R. III: 231; State’s Exhibit 2.
51
   R.R. III: 243; IV: 15; State’s Exhibit 2.
52
   R.R. III: 209.
53
   R.R. III: 171-71; 210.
54
   State’s Exhibit 2.
55
   State’s Exhibit 2.
56
   R.R. IV: 15.
57
   R.R. IV: 16.
58
   R.R. IV: 25.
59
   State’s Exhibit 2.
60
   R.R. III: 251; State’s Exhibit 2.
61
   R.R. III: 251; State’s Exhibit 2.

                                               7
scratched them.62 The officers’ mics for their radios came off during Steele’s assault on

them.63 Officer Cisneros was able to get one cuff on Steele, but not the other.64

       Once Corporal Moreno arrived, he was unable to help restrain Steele until he dry

stunned Steele more than once.65 Only then were the officers able to cuff Steele.66 They

left him in the holding cell.67 The video shows Steele continued to be combative.68 He

was checked out by EMS and had no injuries.69 Once Steele calmed down, Officer Berg

and Corporal Moreno moved him to another cell.70

       Officers Cisneros and Owens were both injured.71 Both felt pain and were hurt.72

Their injuries were photographed and they were sent to the hospital.73 They received

shots and had to take medications to ensure Steele didn’t infect them with any diseases.74

       The video corroborated the officers’ testimonies.75 Steele didn’t testify and didn’t

call any witnesses.

VI.    Conviction & Punishment

       The charge conference is detailed below in response to Steele’s first two issues.
62
   R.R. III: 243, 246-47; IV: 15-16, 19, 25, 46.
63
   R.R. III: 250-51; IV: 17-18; State’s Exhibit 2.
64
   R.R. IV: 17; State’s Exhibit 2.
65
   R.R. III: 265; State’s Exhibit 2.
66
   R.R. III: 265; State’s Exhibit 2.
67
   R.R. III: 212; State’s Exhibit 2.
68
   State’s Exhibit 2.
69
   R.R. III: 214.
70
   R.R. III: 213-14.
71
   R.R. III: 246-47; IV: 19.
72
   R.R. III: 247; IV: 24-25.
73
   R.R. III: 248; IV: 19-20; State’s Exhibit 3-12 (photos of Officers Owens’ and Cisneros’ injuries).
74
   R.R. III: 248; IV: 19-20.
75
   State’s Exhibit 2.

                                                   8
       The jury convicted Steele on two counts of assault on a public servant for

intentionally and knowingly causing bodily injury to Officers E. Cisneros and P. Owens

by hitting, biting, kicking, scratching, or cutting them while they were lawfully

discharging their official duty of attempting to restrain or control Steele.76

       The jury found the two enhancements, for possessing a firearm by a felon and

felony evading arrest, true.77 After hearing Steele was also previously convicted for

another evading arrest, another felon in possession of a firearm, multiple times for

possession of cocaine, delivery of cocaine, possession of narcotic paraphernalia, felony

possession of marijuana, and burglary of a building, the jury sentenced Steele to 50 years

confinement in both cases.78 This appeal followed.




76
   R.R. IV: 87; C.R. 3049: 59; C.R. 3050: 40.
77
   R.R. IV: 118; C.R. 3049: 67; C.R. 3050: 48.
78
   R.R. IV: 101-06, 118; C.R. 3049: 67; C.R. 3050: 48.

                                                   9
                                        FIRST ISSUE
       A court must provide a lesser included offense instruction if the
       lesser offense’s elements are proven by the same or less facts; if the
       injury is less serious; requires a less culpable mental state; or is an
       attempt of the greater offense.

       How’d the Court err by refusing the instruction when resisting arrest
       isn’t a lesser offense of assault on a public servant because resisting
       requires three elements that differ from the greater offense?



                       ARGUMENT AND AUTHORITIES

       Steele contends the Trial Court erred by failing to include resisting arrest as a

lesser included offense to assault on a public servant in its jury charge. Because several

elements of resisting arrest are not the same as assault on a public servant, the Trial

Court didn’t err.

V.     Standard Of Review Jury Charge Error

       The reviewing court examines a claim of jury charge error using the two-step

procedure set out in Almanza.79 The appellate court first determines whether there is

error in the charge.80 If there’s error, then the Court analyzes that error for harm.81

VI.    Lesser Included Offense Relevant Law

79
   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009).
80
   Barrios, 283 S.W.3d at 350 (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)).
81
   Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013) (citing Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012)).

                                                 10
       A trial court’s decision to submit or deny an instruction on a lesser included

offense is reviewed for an abuse of discretion.82 The reviewing court uses a two-step

analysis to determine whether an appellant was entitled to a lesser included offense

instruction.83

       First, the lesser offense must be a lesser included offense as defined by Code of

Criminal Procedure article 37.09.84 Article 37.09 states an offense is a lesser included

offense if:

                 (1) it is established by proof of the same or less than all the
                     facts required to establish the commission of the
                     offense charged;

                 (2) it differs from the offense charged only in the respect
                     that a less serious injury or risk of injury to the same
                     person, property, or public interest suffices to establish
                     its commission;

                 (3) it differs from the offense charged only in the respect
                     that a less culpable mental state suffices to establish its
                     commission; or

                 (4) it consists of an attempt to commit the offense charged
                     or an otherwise included offense.85

Determining whether an offense is a lesser-included offense of the charged offense, is

a question of law.86 It does not depend on the evidence produced at trial.87


82
   Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).
83
   Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–
73 (Tex. Crim. App. 1993).
84
   Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); TEX. CODE CRIM. PROC. art. 37.09.
85
   TEX. CODE CRIM. PROC. art. 37.09.
86
   Hall, 225 S.W.3d at 535.

                                                 11
       To determine if the lesser offense is a lesser included offense of the charged

offense, the Court compares the elements of the charged offense, as modified by the

particular allegations in the indictment, against the elements of the lesser offense.88

       Only if this threshold is met, does the Court consider whether some evidence

shows that if the appellant is guilty, he is guilty only of the lesser offense.89

VII. The Elements Are Not The Same: Resisting Arrest Is Not A
       Lesser Included Offense Of Assault On A Public Servant

       The indictments for assault on a public servant were the same, except for the

officers’ names. They alleged Steele:

               intentionally, knowingly, or recklessly cause bodily injury to
               E. Cisneros [P. Owens] by hiding the said E. Cisneros [P.
               Owens] with his hand and or by kicking the said E.
               Cisneros [P. Owens] with his foot and or leg and or by
               scratching and or cutting the said E. Cisneros [P. Owens]
               with his fingernail, and or biting the said E. Cisneros [P.
               Owens] with his teeth and the defendant did then and there
               know that the said E. Cisneros [P. Owens] was then and
               there a public servant, to-wit: a peace officer and or a
               detention officer and or an employee of the Texas City
               Police Department and that the said E. Cisneros [P.
               Owens] was then and there lawfully discharging an official
               duty, to-wit: attempting to restrain and or control the said
               Dennis Steel.90

Therefore, the elements of assault on a public servant, as modified by the indictment,

are:
87
   Id.
88
   Wortham v. State,412 S.W.3d 552, 555 (Tex. Crim. App. 2013); Hall, 225 S.W.3d at 536.
89
   See Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Rice v. State, 333 S.W.3d 140, 145
(Tex. Crim. App. 2011).
90
   C.R. 3049: 6 (indictment); C.R. 3050: 5 (indictment).

                                                  12
           (1.) A person

           (2.) intentionally, knowingly, or recklessly

           (3.) caused bodily injury

           (4.) to someone he knew was a public servant

           (5.) and the public servant was lawfully discharging an official duty.91

The elements of resisting arrest are:

           (1.) A person

           (2.) intentionally

           (3.) prevented or obstructed a peace officer from effecting an arrest, search,

               or transport,

           (4.) knowing the person was a peace officer,

           (5.) by using force against the peace officer or another.92

       Comparing the elements of the two offenses proves that at least three are not the

same. First, the required mental states for the two offenses are different.93 Resisting

arrest can only be established if the defendant intentionally acted.94 Assault on a public

91
   Id.; TEX. PENAL CODE § 22.01(a)(1), (b)(1).
92
   TEX. PENAL CODE § 38.03(a).
93
   Johnson v. State, 07-09-00251-CR, 2011 WL 677347, at *2 (Tex. App.---Amarillo Feb. 25, 2011, pet.
ref’d) (comparing the elements of assault on a public servant and resisting arrest and finding resisting
arrest proscribes only intentional conduct and assault on a public servant permits conviction on
knowing or reckless culpable mental state); Garcia v. State, No. 01–05–01055–CR, 2006 WL 2885057,
at *6 (Tex. App.---Houston [1st Dist.] Oct. 12, 2006, pet. ref’d) (holding several elements of resisting
arrest are not the same as, or less than, those required for assault on a public servant---including
resisting requires intentional conduct and assault on a public servant allows for knowing or reckless
conduct).
94
   TEX. PENAL CODE § 38.03(a).

                                                  13
servant can be established if the defendant intentionally, knowingly, or recklessly acted.95

        Second, assault on a public servant requires bodily injury.96 Resisting arrest

requires use of force, which may occur with no injury to the officer.97

        Third, resisting arrest requires the officer to be arresting, searching, or

transporting the defendant and assault on a public servant only requires the officer to be

lawfully discharging an official duty.98 The official duty is not limited to arresting,

searching, or transporting.99

        Because Steele can’t meet the first prong of the lesser included offense analysis,

this Court need not address the second prong. And because Steele can’t show the Trial

Court erred, this Court need not address whether he was harmed.

VIII. Conclusion: Overrule

        As evidenced by a plain reading of the Penal Code and as supported by the case


95
   TEX. PENAL CODE § 22.01(a)(1), (b)(1).
96
   TEX. PENAL CODE § 22.01(a)(1), (b)(1).
97
   TEX. PENAL CODE § 38.03(a); see Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.---Beaumont 2001,
pet. ref’d).
98
   TEX. PENAL CODE § 38.03(a); TEX. PENAL CODE § 22.01(a)(1).
99
   See Petersen v. State, 01-11-00740-CR, 2012 WL 2106720, at *1 (Tex. App.---Houston [1st Dist.]
June 7, 2012, no pet.) (holding resisting not a lesser included of aggravated assault on a public
servant because the State only had to prove the victim officer was discharging an official duty, which
may or may not involve an arrest) (citing Gilmore, 44 S.W.3d at 96 (holding that defendant was not
entitled to instruction on resisting arrest as lesser-included offense of aggravated assault on this
basis); see also Dunklin v. State, 194 S.W.3d 14, 22 (Tex. App.---Tyler 2006, no pet.) (“resisting arrest
required proof of two elements the aggravated assault did not: (1) preventing or obstructing a peace
officer from effecting an arrest and (2) using force against the peace officer”); Garcia, No. 01–05–
01055–CR, 2006 WL 2885057, at *6 (holding in part that defendant was not entitled to instruction
on resisting arrest as lesser-included offense of assault and stating, “[R]esisting arrest requires that
the officer be in the act of making an arrest. Assaulting a public servant may occur at any time that
the public servant is conducting his official duty.”)).

                                                   14
law, resisting arrest is not a lesser included offense of assault on a public servant as

modified by the indictments. Steele’s first issue should be overruled.




                                            15
                                  SECOND ISSUE
       A court must provide a self-defense instruction if the defendant
       shows before he resisted an arrest or search, the officer used or
       attempted to use greater force than necessary.

       How’d the Court err by refusing the instruction when Steele was
       already under arrest and wasn’t being searched when he fought the
       officers and there was no evidence of unnecessary force?



                      ARGUMENT AND AUTHORITIES

       In his second issue, Steele claims he’s entitled to a reversal because the Trial

Court refused to include a self-defense instruction in the jury charge. Steele argues he

was entitled to the instruction because the officers used greater force than necessary

when they attempted to transport him from one holding cell into another cell. Steele

wasn’t entitled to the instruction because 1.) the instruction does not apply to transport

and 2.) Steele presented no evidence that the officers used greater force than necessary

before he resisted.

IV. Self-Defense Relevant Law

       According to Penal Code § 9.31:

              (c) The use of force to resist an arrest or search is justified:

                     (1) if, before the actor offers any resistance, the
              peace officer (or person acting at his direction) uses or
              attempts to use greater force than necessary to make the
              arrest or search; and

                                             16
                       (2) when and to the degree the actor reasonably
                believes the force is immediately necessary to protect
                himself against the peace officer's (or other person's) use or
                attempted use of greater force than necessary.100

        While a defendant is entitled to a self-defense instruction if it’s raised by the

evidence, whether that evidence is strong, weak, unimpeached, or contradicted, the

right is limited.101 By the plain language of the Penal Code, the use of force is limited

to arrests and searches.102 Moreover, the defendant cannot resist until after the officer

uses unnecessary force.103

V.      Steele Was Not Entitled To A Self-Defense Instruction

        A. Self-defense doesn’t apply to Steele because he was already arrested
           when he assaulted the officers

        At trial, Steele argued he was entitled to the self-defense instruction because

force was applied to him when the officers attempted to transport him from one cell

to another. Steele argued “there is no need for moving him. In their process of

moving him, you know, he resists.”104 In his brief, Steele cites to Penal Code § 9.31(c)

and states that use of force to resist applies to an arrest, search, or transport.105 Steele

misstates the law at trial and in his brief.


100
    TEX. PENAL CODE § 9.31(c).
101
    Porteous v. State, 259 S.W.3d 741, 747-48 (Tex. App.---Houston [1st Dist.] 2007, no pet.).
102
    TEX. PENAL CODE § 9.31(c).
103
    TEX. PENAL CODE § 9.31(c)(1).
104
    R.R. IV: 67.
105
    Steele’s Brief p. 21.

                                                   17
       As quoted above, self-defense against unnecessary force does not apply to

transport.106 It only applies to arrests and to searches.107 A person is arrested when

he’s been actually placed under restraint or taken into custody by an officer.108 An

arrest is complete when a person’s liberty of movement is successfully restricted or

restrained, whether this is achieved by an officer’s physical force or the defendant’s

submission to the officer’s authority.109 An arrest is complete if a reasonable person in

the defendant’s position would’ve understood the situation to constitute a restraint on

freedom of movement of the degree that the law associates with formal arrest.110

       As described above, Officer Berg testified that after he arrived at the crash

scene, he handcuffed and took Steele into custody for suspicion of driving while

intoxicated. He put Steele in his patrol car and took him to the Texas City Jail. At the

jail, he took Steele into the intoxication investigation room. Steele performed several

DWI tests, including providing a breath sample. Then Officer Berg took Steele into

the holding cell until Steele’s booking could be completed. Steele became combative

only after he was in the holding cell and after Detention Officer Jackson told Steele he

needed to move to another holding cell. Officer Berg had already arrested Steele when

Steele assaulted the detention officer and the transport officer.



106
    See TEX. PENAL CODE § 9.31(c).
107
    See TEX. PENAL CODE § 9.31(c).
108
    TEX. CODE CRIM. PROC. art. 15.22.
109
    Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000).
110
    Id.

                                                  18
       Because Steele was already under arrest when he assaulted Detention Officer

Owens and Officer Cisneros, Steele’s biting, scratching, kicking, and hitting the

officers couldn’t have been in resistance to the already completed arrest.111 Steele was

not entitled to a self-defense instruction. The Trial Court did not err.

       B. Steele presented no evidence the officers used unnecessary force
          before he assaulted them

       Even if self-defense somehow applied to transport, Steele hasn’t provided any

evidence that the officers used unnecessary force before he fought them. Steele points

to the video and claims he didn’t offer “any actual resistance with force” until the

officers used greater force than necessary.112 The video speaks for itself and

corroborates the officers’ testimonies.

       To briefly summarize the video, it shows Detention Officer Jackson go into the

cell and speak to Steele.113 Steele did not get up, although he moved in response to

her.114 Then the video shows Officer Cisneros enter the cell and also speak to

Steele.115 Steele moved in response to the officer, but didn’t get up.116 Within seconds,

Detention Officer Owens enters the cell and he and Officer Cisneros walked up to

111
    See Young v. State, 622 S.W.2d 99, 100 (Tex. Crim. App. 1981) (holding conduct after arrest is
complete does not constitute resisting arrest); see also Yarian v. State, 2-04-015-CR, 2005 WL 852156,
at *2 (Tex. App.---Fort Worth Apr. 14, 2005, pet. struck) (finding a defendant’s arrest complete
when he was handcuffed and transported to the jail and, therefore, holding that biting the jailer
couldn’t have been resisting the already completed arrest).
112
    Steele’s Brief p. 22.
113
    State’s Exhibit 2 at approximately 34:15.
114
    State’s Exhibit 2 at approximately 34:15.
115
    State’s Exhibit 2 at approximately 34:45.
116
    State’s Exhibit 2 at approximately 35:30.

                                                 19
Steele.117 Officer Cisneros leaned down and moved Steele’s shirt.118 Steele moved

again in response to the officer, but still didn’t get up.119 Then Officers Owens and

Cisneros reached for Steele’s arms and began lifting him to his feet.120 The officers did

not strike Steele, didn’t kick him, and didn’t jerk him quickly to his feet.121 Steele

immediately began pushing away from the officers.122 As Steele fought, the officers

got him to his feet.123 After struggling with Steele, the three men fell to the ground

and Steele continued to fight.124 Steele fought even after help arrived.125 The testimony

discussed above and the video establishes Steele resisted the officers immediately.

       Moreover, Steele provided no evidence at trial and no argument on appeal that

the officers used greater force before Steele grew violent and began fighting them.

Speaking to and then touching a defendant’s arms to lift him does not constitute

unnecessary force.126




117
    State’s Exhibit 2 at approximately 35:40.
118
    State’s Exhibit 2 at approximately 35:40.
119
    State’s Exhibit 2 at approximately 35:40.
120
    State’s Exhibit 2 at approximately 35:47.
121
    State’s Exhibit 2 at approximately 35:47.
122
    State’s Exhibit 2 at approximately 35:48.
123
    State’s Exhibit 2 at approximately 35:53.
124
    State’s Exhibit 2 at approximately 35:55.
125
    State’s Exhibit 2 at approximately 37:40.
126
    See Goddard v. State, 154 S.W.3d 231, 231 (Tex. App.---Amarillo 2005, no pet.) (mere act of
grabbing a suspect’s arm or arms not excessive force); see also Gonzales v. Kelley, No. 01–10–00109–
CV, 2010 WL 2650615 (Tex. App.---Houston [1st Dist.] 2010, no pet.) (reasonable for officer to
believe use of TASER was justified to secure suspect in response to specific aggressive acts).

                                                20
       Steele also contends that he was “asleep, when the officers suddenly grabbed

each of his arms and yanked him up.”127 There is no evidence, weak or strong, from

any source that establishes Steele was asleep when Officers Owens and Cisneros

entered the cell and attempted to transport him. To the contrary, the video and trial

testimony shows Steele responded to the officers when they told him they needed him

to move cells. The video shows Steele moving after each officer walked into the cell.

Both Officer Cisneros and Owens testified Steele cursed at them when they separately

told Steele he had to move. Additionally, Officer Cisneros testified Steele stuck his

middle finger out at him and Officer Owens testified Steele told him he wasn’t going

to move.

VI. Conclusion: Overrule

       Steele hasn’t shown he was entitled to the self-defense instruction.128 The self-

defense instruction doesn’t apply to him because he was resisting a transport, not an

arrest or a search. And even if it did apply to him, the evidence establishes Steele

insistently physically resisted the officers. Moreover, Steele hasn’t provided any

evidence that the force exerted on Steele to lift him was unnecessary.

       Steele’s second issue should be overruled.




127
   Steele’s Brief p. 22.
128
   See Porteous, 259 S.W.3d at 748 (finding Penal Code § 9.31(c) requires the defendant to show the
officers used greater force than necessary before the justification of self-defense is applicable).

                                                21
                                   THIRD ISSUE
       Insufficient evidence only applies to the essential elements of the
       offense. The State only has to prove at trial that the victim is the
       same as in the indictment. The name isn’t an essential element.

       Viewing the evidence in the light most favorable to the verdict,
       Officer Cisneros testified Steele assaulted him. The officers
       identified Cisneros as the victim.

       How’s the evidence insufficient?



                     ARGUMENT AND AUTHORITIES

       In his third issue, Steele claims the evidence is insufficient to prove he assaulted

Officer E. Cisneros because when Officer Cisneros testified, he didn’t tell the jury his

first name started with an “E”. The victim’s name is not an essential element of assault

on a public servant. Consequently, the State didn’t have to prove the name; the State

only had to prove the victim alleged in the indictment is the same person as the victim

proved at trial. The State met its burden.

V.     Standard Of Review For Sufficiency Of The Evidence

       When evaluating the legal sufficiency of the evidence, the reviewing court

considers all of the evidence in the light most favorable to the verdict and determines

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


                                             22
doubt.129 The reviewing court defers to the factfinder’s (1) resolution of conflicts in

testimony; (2) evaluation of the credibility and weight of the evidence; and (3)

responsibility to draw reasonable inferences from basic facts to ultimate facts.130 This

standard applies equally to circumstantial and direct evidence.131 The reviewing court “is

restricted to guarding against the rare occurrence when a factfinder does not act

rationally.”132 Accordingly, the reviewing court must uphold the verdict unless a rational

factfinder must have had a reasonable doubt as to any essential element.133

VI. The Name Isn’t An Essential Element Of Assault On A Public
    Servant

        For Steele to succeed on his sufficiency of the evidence claim, the name of the

victim must be a substantive element of the criminal offense as defined by state law.134

It’s not.

        The Court of Criminal Appeals held in Fuller that the victim’s name wasn’t a

substantive element in an injury to an elderly case because the Penal Code defined the

offense as injury to an elderly individual and not injury to an elderly person named Olen

M. Fuller.135 (Olen M. Fuller was the victim.)136 The same logic applies here.



129
    Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
130
    See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
131
    Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
132
    Isassi, 330 S.W.3d at 638 (quoting Laster, 275 S.W.3d at 517).
133
    Laster, 275 S.W.3d at 518.
134
    See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002).
135
    Id. at 253.
136
    Id. at 251.

                                                   23
        Steele was charged with assault on a public servant.137 The Penal Code explains a

defendant commits assault on a public servant when he “intentionally, knowingly, or

recklessly causes bodily injury to another” and the offense is committed against a person

the defendant “knows is a public servant while the public servant is lawfully discharging

an official duty.”138 The Penal Code defines a public servant as a person employed as an

officer, employee, or agent of government.139 In other words, the Penal Code defines the

offense as assault on a public servant not assault on a public servant named E. Cisneros.

In short, the victim’s name isn’t a substantive element of assault on a public servant.140

VII. The Evidence Proves Steele Assaulted The Victim Named In
     The Indictment

        The victim’s name need not be proved with exactness, but the State was required

to prove that the victim alleged in the indictment is the same person as the victim

proved at trial.141 The State met its burden.

        There was no dispute at trial that one of the two officers Steele assaulted in the

holding cell was the same person as alleged in the indictment. There wasn’t a dispute at

trial because the evidence proves the E. Cisneros in the indictment is the same Officer

Cisneros that Steele assaulted on the holding cell video, that Detention Officers Jackson

and Owens identified, and that took the stand to testify Steele assaulted him.

137
    C.R. 3049: 6 (indictment).
138
    TEX. PENAL CODE § 22.01 (a)(1), (b)(1).
139
    TEX. PENAL CODE § 1.07 (41)(A).
140
    See Fuller, 73 S.W.3d at 253.
141
    See Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012).

                                                   24
       To summarize the evidence, the video of the holding cell establishes that two

officers were assaulted by Steele. Detention Officer Owens identified himself as one of

the officers. Officer Cisneros identified himself as the second officer.

       As Steele admits in his brief, Detention Officer Jackson testified Officer Eric

Cisneros was the transport officer that she asked to help her move Steele. She never

identified another Officer Cisneros going into the holding cell with Steele.

       The State called “Eric Cisneros” to the stand. A witness approached and was

sworn in. When asked to introduce himself to the jury, he said his name is Officer

Cisneros. At no point did anyone suggest a random person was sworn in to testify. The

jury could reasonably conclude that when a witness answered to the State calling “Eric

Cisneros” and a person came forward, was sworn as a witness, and testified that he is

“Officer Cisneros”, and was the victim of this crime than he is actually the “Eric

Cisneros” named in the indictment.

       During his testimony, Officer Cisneros identified himself on the video as one of

the two officers attempting to transport Steele. He identified himself as one of the two

people being hit, kicked, and scratched by Steele. Detention Officer Owens identified

himself as the other officer assaulted by Steele.

       Notably, no evidence contradicted Officer Cisneros’s identity. There was also no

evidence that another officer named Cisneros went into the holding cell and was also

assaulted by Steele.


                                             25
VIII. Conclusion: Overrule

      Viewing the evidence in the light most favorable to the verdict, the evidence

establishes Steele was convicted of assaulting Officer Cisneros, which is the same victim

as alleged in the indictment for cause number 13CR3049. Steele’s third issue should be

overruled.




                                           26
                           CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment

of the Trial Court be affirmed in all respects.

                                           Respectfully submitted,

                                           JACK ROADY
                                           CRIMINAL DISTRICT ATTORNEY
                                           GALVESTON COUNTY, TEXAS


                                                  /s/ Rebecca Klaren
                                           REBECCA KLAREN
                                           Assistant Criminal District Attorney
                                           State Bar Number 24046225
                                           600 59th Street, Suite 1001
                                           Galveston, Texas 77551
                                           Tel (409)770-6004/Fax (409)621-7952
                                           rebecca.klaren@co.galveston.tx.us




                                             27
                          CERTIFICATE OF SERVICE

      The undersigned Attorney for the State certifies a copy of the foregoing brief was

sent via email, eFile service, or certified mail, return receipt requested, to Daniel

Lazarine, attorney for Dennis Steele, at dlazarine@icloud.com or 440 Louisana, Suite

200, Houston, Tx 77002, on June 25, 2015.




                                             /s/ Rebecca Klaren
                                        REBECCA KLAREN
                                        Assistant Criminal District Attorney
                                        Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief is computer generated,

and consists of 5,752 words.




                                             /s/ Rebecca Klaren
                                        REBECCA KLAREN
                                        Assistant Criminal District Attorney
                                        Galveston County, Texas




                                          28
