                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00010-CR
         ______________________________


          JOHN PAUL WARNER, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 420th Judicial District Court
             Nacogdoches County, Texas
           Trial Court No. F13,490-2005




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

        After hearing evidence that James Paul Warner had tussled with Officer Mack McKee of the

Nacogdoches Police Department, during which the officer's finger was broken, a Nacogdoches

County1 jury found Warner guilty of assault on a public servant. In accordance with the jury's

punishment verdict, the trial court sentenced Warner to an enhanced twenty-five years'

imprisonment.2 We affirm the trial court's judgment because we hold that (1) the evidence is legally

and factually sufficient and (2) resisting arrest is not a lesser-included offense to assault on a public

servant.

(1)     The Evidence Is Legally and Factually Sufficient

        In two of his three appellate issues, Warner contends the evidence is legally and factually

insufficient to support his conviction for aggravated assault. A legal sufficiency review requires the

court to examine all of the evidence in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Pumphrey v. State, 245 S.W.3d

85, 87 (Tex. App.—Texarkana 2008, pet. ref'd); Young v. State, 242 S.W.3d 192, 197 (Tex.



        1
        This case has been transferred to this Court as part of the Texas Supreme Court's docket
equalization program.
        2
        The jury in this case made a factual finding that Warner had twice previously, and
sequentially, been convicted of a felony offense. That factual finding permitted the jury to assess
Warner's punishment within the enhanced sentencing range provided for recidivists. See TEX . PENAL
CODE ANN . § 12.42(d) (Vernon Supp. 2008).

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App.—Tyler 2007, no pet.). When factual sufficiency of the evidence is challenged, we review all

the evidence admitted at trial in a neutral light, determining whether the evidence supporting the

verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that

the fact-finder's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524

(Tex. Crim. App. 2007); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Pumphrey,

245 S.W.3d at 87–88; Young, 242 S.W.3d at 199. Under this latter standard, we must afford "due

deference" to the fact-finder's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim.

App. 2006); see Young, 242 S.W.3d at 198. And although, when we review the factual sufficiency

of the evidence, we have the ability to second-guess the fact-finder to a limited degree, we should

nonetheless be deferential, with a high level of skepticism about the fact-finder's verdict required

before a reversal can occur. Roberts, 220 S.W.3d at 524; Young, 242 S.W.3d at 198–99.

        A person commits the offense of assault if he or she intentionally, knowingly, or recklessly

causes bodily injury to another. TEX . PENAL CODE ANN . § 22.01(a)(1) (Vernon Supp. 2008). The

severity of that offense is increased if the victim of that assault was lawfully discharging an official

duty and was a person whom the defendant knew to be a public servant. TEX . PENAL CODE ANN .

§ 22.01(b)(1) (Vernon Supp. 2008). Assault on a public servant is a third-degree felony. Id.

        The amended indictment alleged Warner "did then and there intentionally and knowingly

cause bodily injury to Mac[k] McKee . . . a person the defendant knew was a public servant while

the Complainant was lawfully discharging an official duty, to-wit: handcuffing the defendant, by



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twisting the Complainant's hand . . . ." The trial court's charge to the jury authorized Warner's

conviction of aggravated assault if they found "from the evidence beyond a reasonable doubt that on

or about the 9th day of November, 2005[,] in Nacogdoches County, Texas, the defendant JAMES

PAUL WARNER, did then and there, unlawfully, intentionally or knowingly cause bodily injury to

Mac[k] McKee, a person the defendant knew was a public servant while Mac[k] McKee was

lawfully discharging an official duty, to-wit: handcuffing the defendant, by twisting Mac[k] McKee's

hand, then you will find the defendant guilty as charged in the indictment." We review the evidence

in this case.

        Patrol Sergeant Keith Finchum of the Nacogdoches Police Department testified he was

working in November 2005 and received a call related to a disturbance on Drewery Drive located

in Nacogdoches, Texas. Finchum, along with officers Albert Patterson and McKee, also of the

Nacogdoches Police Department, responded to the call and eventually met a suspect (later identified

as Warner) walking along the road near the dispatched location. Warner told the officers that he had

been in an argument with his family members about his girlfriend. Finchum eventually received

information from Patterson (who had gone on to the Drewery Drive location) that Warner "had

committed an arrestable offense." Finchum, acting on this information from a fellow officer,

"decided to detain Mr. Warner." See generally Farmah v. State, 883 S.W.2d 674, 678 (Tex. Crim.

App. 1994) (officer may arrest suspect based on another officer's request if requesting officer has




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sufficient information to establish probable cause to arrest); see also TEX . CODE CRIM . PROC. ANN .

art. 14.03(a)(2), (4) (Vernon Supp. 2008) (warrantless arrests of assault suspects).

        Finchum then walked up to Warner's right side; McKee walked up to Warner's left side.

McKee took Warner by his left arm and advised Warner that he would be detained until the officers

could find out more information about the argument that had occurred earlier at the Drewery Drive

residence. Warner did not cooperate with the officers' efforts, but instead "tensed up" so that the

officer could not put Warner's arms behind his back. Warner then jerked away from the officers,

turned, and ran. Finchum later tackled Warner, and the two wrestled. McKee then attempted to use

his TASER device to subdue Warner. Warner, however, was able to reach up and grab the device.

Warner and McKee struggled briefly over the device before it fell to the ground. Shortly thereafter,

McKee regained control of the TASER device and used it to subdue Warner. McKee suffered a

broken finger as a result of the altercation with Warner that caused the officer to initially lose control

of the device.

        On cross-examination, defense counsel got Finchum to agree to a characterization of the

events as either Warner merely resisting Finchum's attempts at arrest or Warner merely trying to run

away. Finchum also admitted that he was not punched or elbowed by Warner when the officer

tackled him.

        Sergeant McKee testified next. He told the jury that he was working November 9, 2005,

when he was met by Finchum near the intersection of Press Road and Hunter in Nacogdoches.



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Finchum was talking to Warner when McKee arrived. While Finchum talked with Warner, McKee

learned from Patterson that Warner would need to be arrested in conjunction with a domestic

disturbance. McKee informed Finchum of this information, and the two officers then attempted to

arrest Warner. According to McKee, Finchum informed Warner that he would be detained; McKee

then grabbed Warner's left arm, Finchum grabbed Warner's right arm, and the two officers attempted

to put Warner's hands behind his back and place him in handcuffs.

       Warner, however, did not cooperate. "He twisted away and pulled away and took off

running, kind of towards the park . . . ." Finchum eventually caught up with Warner, and the two

were wrestling on the ground. When Warner continued to fight, claw, and struggle, McKee opted

to use a TASER device to subdue Warner. McKee applied the device to Warner's chest, but Warner

was able to break free from Finchum's hold; Warner then used both hands to grab the device by its

front part "and twisted it, breaking it out of [McKee's] hand."3 The TASER device then fell to

ground.

       McKee eventually regained control of the device and used it again on Warner's leg. In so

doing, the officers were finally able to gain sufficient control of Warner to place him in handcuffs.

However, McKee soon realized that one of the fingers on his right hand was broken. McKee agreed

that the broken finger "hurt a lot." X-rays taken later at the hospital confirmed that McKee's finger

had been broken in three places as a result of Warner twisting McKee's hand while the officer first

       3
        At trial, McKee agreed with the characterization of Warner's taking the TASER device as
a voluntary act by Warner.

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attempted to use his TASER device to subdue the suspect. As a result of the injuries he sustained,

McKee was unable to work for eight weeks.

       Warner then testified in his own defense. According to Warner's testimony, on

November 9, 2005, he and his girlfriend went to his mother's house on Drewery Drive in

Nacogdoches. Warner and his mother got into an argument, prompting Warner to get angry, kick

down the screen door to the home, and walk away from the argument. As Warner continued down

the road, Finchum and McKee ultimately encountered Warner, who tried to tell the officers his

version of what had transpired back at his mother's house.

       Ultimately, the officers informed Warner that they intended to detain him for further

questioning. According to Warner's continued testimony, he then just "blacked out," but Warner

admitted he resisted the officers' efforts at restraining him during this period of alleged blackout.

       Warner also told the jury that he is autistic and receives federal assistance as a result of his

disorder.4 He admitted on cross-examination that he had been previously convicted of unauthorized

use of a motor vehicle, aggravated assault, and retaliation; he also admitted being sentenced to seven

years' imprisonment on the latter two charges. He further acknowledged that diagnostic testing,

conducted in February or March of 2005, did not indicate Warner suffered from any form of autism.



       4
        Warner reported that he currently takes medication—including Depakote, Lexapro, and
Risperdal. These medications are psychotropic drugs. See Thompson v. Barnhart, 493 F. Supp. 2d
1206, 1216 (S.D. Ala. 2007) (Lexapro); Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901,
903 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (Risperdal); Euler v. State, 158 S.W.3d 75, 77
(Tex. App.—Houston [14th Dist.] 2005), aff'd, 218 S.W.3d 88 (Tex. Crim. App. 2007) (Depakote).

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        Finally, Warner testified that he never intended to break McKee's finger and that he never

took away McKee's TASER device. He accused McKee and Finchum of concocting their stories to

frame Warner in this case.

        After reviewing all the evidence admitted at trial (including two DVD records made by the

officers' in-car video recorders) under the applicable review standards, we conclude the evidence is

legally and factually sufficient to support the trial court's judgment of conviction. The officers'

testimonies and the State's medical documentation provides evidence establishing all the essential

elements of assault on a public servant, as charged in the indictment in this case. And the State's

evidence supporting conviction is neither greatly outweighed by contrary evidence nor so weak as

to suggest the jury's verdict was manifestly unjust. We, therefore, overrule Warner's points of error

attacking the sufficiency of the evidence.

(2)     Resisting Arrest Is Not a Lesser-Included Offense to Assault on a Public Servant

        Warner contends the trial court erred by denying his request for a lesser-included-offense

instruction on the offense of resisting arrest.

        To constitute a lesser-included crime, an offense must (1) be established by proof of the same

or less than all of the facts required to establish the commission of the offense charged; (2) differ

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 the crime's commission; (3) differ from the

offense charged only in the respect that it requires a less culpable mental state to establish the crime's



                                                    8
commission; or (4) consist of an attempt to commit the offense charged or an otherwise included

offense. TEX . CODE CRIM . PROC. ANN . art. 37.09 (Vernon 2006).

        In reviewing a claim that the trial court erred by not submitting an instruction on a lesser-

included offense, the reviewing court must first examine the elements of the primary offense as

defined by the indictment in the case, not by reference to the evidence admitted at trial. Hall v. State,

225 S.W.3d 524, 535 (Tex. Crim. App. 2007). The elements of that primary offense are then

compared to those of the claimed lesser-included offense. If the latter is a lesser-included of the

former, then we must review all of the evidence admitted at trial to determine whether there is any

evidence—even a mere scintilla—that would support a jury's finding that the accused was guilty only

of the lesser-included offense, if he or she was guilty at all. Id. at 535–36.

        The elements of the offense of assault on a public servant, as charged in the indictment, are

that a person (1) intentionally or knowingly, (2) causes bodily injury, (3) to a person, (4) whom the

actor knows to be a public servant, and (5) that public servant is discharging an official duty. TEX .

PENAL CODE ANN . § 22.01(a)(1), (b)(1). "By contrast, the elements of the offense of resisting arrest

are that a person (1) intentionally prevents or obstructs; (2) a person he knows is a peace

officer; (3) from effecting an arrest of the actor; (4) by using force against the peace officer."

Dunklin v. State, 194 S.W.3d 14, 22 (Tex. App.—Tyler 2006, no pet.) (citing TEX . PENAL CODE

ANN . § 38.03(a) (Vernon 2003)). Assault on a public servant is a felony offense. TEX . PENAL CODE




                                                   9
ANN . § 22.01(b). Resisting arrest is typically a misdemeanor offense. TEX . PENAL CODE ANN .

§ 38.03(c) (Vernon 2003).

        In this case, assault on a public servant (as charged in the indictment) required an element

of proof—intentionally or knowingly causing bodily injury to McKee—that resisting arrest did not.

Additionally, proof of resisting arrest required proof of an element that the assault charge would

not—preventing or obstructing the peace officer from effecting an arrest. Because each of the two

crimes contains an element of proof the other does not, resisting arrest would not have been a proper

lesser-included offense of assaulting a public servant. Cf. Ortega v. State, 171 S.W.3d 895, 899–00

(Tex. Crim. App. 2005) (State not barred by double jeopardy from securing convictions for both

resisting arrest and assault on public servant; resisting arrest is not lesser-included offense of

assaulting public servant); Dunklin, 194 S.W.3d at 22 (trial court did not err by denying requested

instruction on resisting arrest during trial on aggravated assault of public servant). It follows, then,

that the trial court did not err by denying Warner's requested jury instruction on the lesser offense

of resisting arrest.




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       Having concluded that legally and factually sufficient evidence supports the jury's verdict,

and having concluded that resisting arrest is not a lesser-included offense of assaulting a public

servant, we overrule each of Warner's points of error and affirm the trial court's judgment.




                                                     Josh R. Morriss, III
                                                     Chief Justice


Date Submitted:        August 27, 2008
Date Decided:          October 10, 2008

Do Not Publish




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