                         NUMBER 13-17-00490-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JAMES INGRAM JR.,                                                         Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 25th District Court
                        of Gonzales County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Contreras

      Appellant James Ingram Jr. appeals his conviction for assault on a public servant,

a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West, Westlaw

through 2017 1st C.S.). By two issues, appellant argues that: (1) there was insufficient

evidence to support his conviction, and (2) his presumption of innocence and due process
rights were violated because the trial court asked the jurors to recite the Pledge of

Allegiance. We affirm.

                                   I.   BACKGROUND

       Appellant was indicted on one count of assault on a public servant. See id. The

indictment included two enhancement paragraphs. On the day of trial, after the jury had

entered the courtroom but before they were seated, the trial court stated “Please join me

in the Pledge of Allegiance.”     The jury was then sworn in and trial proceedings

commenced.

       The State first called Officer Daniel Torres of the Luling Police Department. At the

time of appellant’s offense, Torres was employed with the Nixon Police Department.

Torres initiated a traffic stop of appellant’s vehicle after he observed appellant driving.

Torres was aware that appellant’s license was suspended, and he confirmed that fact

over the computer prior to the traffic stop. According to Torres, appellant ignored the

flashing police lights and continued to drive a short distance until he parked at his

residence. Once there, appellant exited his vehicle, and Torres informed appellant he

was being placed under arrest for driving without a license. Torres repeatedly instructed

appellant to place his hands behind his back, but appellant refused to comply. Appellant’s

girlfriend and wife were also present at the scene.

       After appellant failed to comply with Torres’s commands, Torres attempted to grab

appellant’s arm to place him under arrest.      According to Torres, when he grabbed

appellant’s arm, appellant “pushed with both hands and punched” in one simultaneous

motion, striking Torres in the chest and in the face. The strike knocked Torres into the

lawn tractor beside him, but he regained his balance and successfully placed appellant



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under arrest. Torres explained the strike caused his face to sting, caused it to be sore

that night, and caused it to be swollen the next day.

       Torres radioed for back up, and Deputy Jared Brumme of the Gonzales County

Sheriff’s Office responded to the call. Brumme testified that when he arrived he noticed

Torres was a bit shaken from the struggle with appellant and that Torres had a small

amount of redness on his cheek area.

       As his witnesses, appellant called his girlfriend, Darcy Clifton, and his wife, Carolyn

Thomas. Clifton testified that Torres pushed appellant as he attempted to put handcuffs

on him and that appellant then pushed Torres back, causing him to trip over the

lawnmower.     Clifton denied seeing appellant punch Torres.          Thomas testified that

appellant and Torres “started tussling” as Torres attempted to handcuff appellant. As

they struggled, according to Thomas, both Torres and appellant fell. Thomas testified

she never saw appellant strike Torres.

       The jury found appellant guilty. The trial court found the enhancement allegations

true and assessed punishment at twenty-five years in the Texas Department of Criminal

Justice—Institutional Division. This appeal followed.

                           II.   SUFFICIENCY OF THE EVIDENCE

       By his first issue, appellant argues that the evidence was insufficient to support his

conviction.

A.     Standard of Review

       When examining the legal sufficiency of the evidence, we consider the combined

and cumulative force of all admitted evidence in the light most favorable to the conviction

to determine whether, based on the evidence and reasonable inferences therefrom, any

rational trier of fact could have found each element of the offense beyond a reasonable
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doubt.1 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805,

808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the

jury as factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from facts. Jackson, 443 U.S. at 319; Villa v. State, 514 S.W.3d

227, 232 (Tex. Crim. App. 2017); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d). “Deference to the trier of fact extends to inferences

drawn from the evidence as long as the inferences are reasonable ones supported by the

evidence and are not mere speculation.” Villa, 514 S.W.3d at 232; see Johnson, 419

S.W.3d at 671. As factfinder, the jury is the exclusive judge of the credibility of the

witnesses and the weight to be afforded to their testimony. See Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991) (en banc). In other words, a jury may believe a

witness even though the witness’s testimony has been contradicted and accept any part

of a witness’s testimony and reject the rest. Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986) (en banc).

        We measure the legal sufficiency of the evidence against the elements of the

offense as defined by a hypothetically correct jury charge for the case. Byrd v. State, 336

S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997) (en banc)). “Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”                 Id. (internal quotation marks


        1  In his brief, appellant urges us to employ a factual sufficiency review of the evidence. However,
the Texas Court of Criminal Appeals has discarded factual sufficiency review. Brooks v. State, 323 S.W.3d
893, 894–95 (Tex. Crim. App. 2010) (panel op.). Thus, we reject appellant’s request and proceed with our
legal sufficiency review analysis. See Jackson v. Virginia, 433 U.S. 307, 319 (1979); Ramsey v. State, 473
S.W.3d 805, 808 (Tex. Crim. App. 2015).
                                                     4
omitted). The law as authorized by the indictment must be the statutory elements of the

offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404

(Tex. Crim. App. 2000). That is to say, the hypothetically correct jury charge could not

simply quote the language of the statute; rather, it must track the elements of the law

specifically alleged by the indictment. Id. at 404–05.

B.        Applicable Law

          A person commits the offense of assault on a public servant if a person (1)

intentionally, knowingly, or recklessly (2) causes bodily injury to another; and (3) the

offense is committed against a person the actor knows is a public servant while the public

servant is lawfully discharging an official duty. TEX. PENAL CODE ANN. § 22.01(a)(1),

(b)(1).

          A mental state may be inferred from acts, words, and conduct of the accused.

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (en banc); Louis v.

State, 329 S.W.3d 260, 268–69 (Tex. App.—Texarkana 2010), aff’d, 393 S.W.3d 246

(Tex. Crim. App. 2012). “Indeed, mental culpability is of such a nature that it generally

must be inferred from the circumstances under which a prohibited act or omission occurs.”

Hernandez, 819 S.W.2d at 810; see Louis, 329 S.W.3d at 268–69.

          Here, Torres, Clifton, and Thomas testified appellant repeatedly refused to comply

with Torres’s requests to place his arms behind his back. According to them, when Torres

grabbed appellant by the arm, appellant pushed Torres back. Looking at the evidence in

the light most favorable to the verdict, we conclude that a jury could have found or inferred

that appellant acted intentionally, knowingly, or recklessly. See Howard v. State, 333

S.W.3d 137, 140 (Tex. Crim. App. 2011); Payne v. State, 502 S.W.3d 829, 832 (Tex.



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App.—Houston [14th Dist.] no pet.); see also Price v. State, 457 S.W.3d 437 441–42

(Tex. Crim. App. 2015).

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

condition. TEX. PENAL CODE ANN. § 1.07(a)(8) (West, Westlaw through 2017 1st C.S.).

“Any physical pain, however minor, will suffice to establish bodily injury.” Garcia v. State,

367 S.W.3d 683, 688 (Tex. Crim. App. 2012). “A fact finder may infer that a victim actually

felt or suffered physical pain because people of common intelligence understand pain

and some of the natural causes of it.” Id.

       Here, Torres explained he was sore and experienced pain and swelling. Brumme

testified Torres had redness on his face after the altercation. This constituted evidence

of bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(8); Garcia, 367 S.W.3d at 688. It is

also undisputed that, at the time of the offense, Torres was a police officer in uniform

discharging an official duty. See Clark v. State, 461 S.W.3d 244, 248–49 (Tex. App.—

Eastland 2015, pet. ref’d). The jury could have inferred that appellant knew Torres was

a public servant lawfully discharging an official duty.

       Even if there was conflicting testimony, we must presume that the trier of fact

resolved any conflict in the evidence and testimony in favor of the prosecution, and we

must defer to that resolution. Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.—Fort

Worth 1999, pet. ref’d) (citing Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.

1991) (en banc)).     Therefore, we conclude the evidence was sufficient to support

appellant’s conviction for assault on a public servant. See Ortega v. State, 207 S.W.3d

911, 919–20 (Tex. App.—Corpus Christi 2006, no pet.).

       We overrule appellant’s first issue.



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                 III.   PRESUMPTION OF INNOCENCE AND DUE PROCESS

       By his second issue, appellant argues that the trial court’s proposition to the jury

to join in on the recitation of the Pledge of Allegiance violated his due process and his

presumption of innocence.

       General preservation requirements apply to improper judicial comments. See

Unkart v. State, 400 S.W.3d 94, 98–102 (Tex. Crim. App. 2013). “The traditional and

preferred procedure for seeking relief at trial for a complaint that must be preserved is (1)

to object when it is possible, (2) to request an instruction to disregard if the prejudicial

event has occurred, and (3) to move for a mistrial if a party thinks an instruction to

disregard was not sufficient.” Id. at 98–99. Appellant failed to do any of this. Appellant

cites to Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) in support of his argument

that preservation requirements did not apply, but his argument is unavailing. The Texas

Court of Criminal Appeals has specifically concluded that “the Blue decision has no

precedential value.” Unkart, 400 S.W.3d at 100–01. Accordingly, we reject appellant’s

argument and conclude he has failed to preserve this issue for our review. See TEX. R.

APP. P. 33.1; Unkart, 400 S.W.3d at 98–99.

       Furthermore, appellant cites no authority in support of his claim that the recitation

of the Pledge of Allegiance is a violation of due process or of his presumption of

innocence. On the contrary, we note that courts have rejected similar arguments. See

United States v. Wonschik, 353 F.3d 1192, 1198 (10th Circ. 2004); Robles v. State, 589

S.E.2d 566, 570–71 (Ga. 2003); State v. Perry, 2008 WL 4918233, at *4 (Ohio Ct. App.

5th Dist. 2008), rev’d on other grounds, 906 N.E.2d 1112 (Ohio 2009).

       We recognize that trial judges, among their many responsibilities, should
       take care not to create the impression that it is appropriate for the judge or
       the jury to favor the prosecution simply because the court and the
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       prosecution are both institutions of the United States. However, we do not
       think it reasonable to suppose that the jurors inferred from the Pledge of
       Allegiance a patriotic obligation to serve as a rubber stamp for the
       prosecution. Rather, we believe the pledge represents, and evoked in the
       juror’s minds, a more enlightened patriotism, fidelity to which required them
       to uphold our nation’s Constitution and laws by sitting as impartial finders of
       fact in the matter before them. That is as likely to benefit a defendant as to
       prejudice him.

Wonschik, 353 F.3d at 1198–99.

       We overrule appellant’s second issue.

                                   IV.   CONCLUSION

       The trial court’s judgment is affirmed.

                                                                DORI CONTRERAS
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 6th
day of December, 2018.




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