          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-01-00632-CV




                                         In the Matter of J. L. O.




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
               NO. J-20,956, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING




                 The State filed a petition alleging that appellant J. L. O. had engaged in delinquent conduct

by assaulting two public servants, one a teacher and the other an education assistant. See Tex. Pen. Code

Ann. ' 22.01 (West Supp. 2002). The district court held a hearing and found that J. L. O. had engaged in

delinquent conduct by assaulting the education assistant. After a disposition hearing, the court placed J. L.

O. on nine months= probation. J. L. O. appeals, contending the evidence is legally insufficient to support the

district court=s findings. We will affirm the judgment.

                 In March 2001, J. L. O. was in a behavior management program at Pflugerville Middle

School, part of Pflugerville Independent School District. Teacher Julie Millegan and education assistant

Kathleen Blair were two of the adults in charge of the program. During a class period, Millegan instructed

J. L. O. to return to his seat; he went to his desk and sat sideways in his chair, a violation of the classroom=s

rules requiring all students to sit facing forward. When Blair asked J. L. O. to turn around and sit properly,

he Astood up and his fists were clenched.@ Blair said as J. L. O. stood, she was Apetrified.@ She testified
that she was trained to deal with such a situation by using A[v]erbal intervention and as a last resort we are

trained for therapeutic holds if at any time we feel that the student is a danger to himself, other students, or

to ourselves.@ Blair felt J. L. O. was a threat to himself, the other students, or herself and Millegan.

Millegan approached J. L. O., attempting a Averbal intervention,@ attempting to calm him verbally before the

situation escalated. Millegan lowered her head to speak calmly to him, but J. L. O. Awas yelling and

screaming and his fists were clenched and the language was way out of line for any child and we had other

students in the classroom.@ Blair and Millegan testified that J. L. O. began screaming that they should not

touch him and that he was going to Awale@ on them.




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                 Millegan said J. L. O. attempted to strike her but did not make contact. Blair saw J. L. O.

move toward Millegan with his fists still clenched and raise one arm, but she could not say if he was

swinging at Millegan. Blair testified, AHe leaned his body in towards her which led me to believe that Ms.

Millegan was in danger, and that=s where my training goes into effect, what I am trained to do.@ Blair

grabbed J. L. O.=s right wrist and placed her left leg inside his right foot and Millegan did the same on his

other side, attempting to place him in an Aapproved therapeutic hold.@ J. L. O. started bucking his torso,

knocking Blair with his shoulder and causing her to lose her grip. Millegan testified, AWe were trying to do

a two-man hold. [J. L. O.] pulled out of that. His adrenalin was very high and he=s very strong.@ Millegan

then attempted a single-person hold, and she and J. L. O. fell backwards onto the floor, J. L. O. continuing

to yell obscenities and threaten the teachers. During the altercation, Blair=s thumb and knee were injured,

requiring surgery to correct.     We review adjudications of delinquency in juvenile proceedings under the

same standards of review we use to review the sufficiency of the evidence supporting a jury=s verdict in a

criminal case. In re L.M., 993 S.W.2d 276, 284 (Tex. App.CAustin 1999, pet. denied); In re B.M., 1

S.W.3d 204, 206 (Tex. App.CTyler 1999, no pet.). To evaluate the legal sufficiency of the evidence, we

view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of

fact could have found the elements of the offense beyond a reasonable doubt. L.M., 993 S.W.2d at 284.

The State must prove beyond a reasonable doubt that the juvenile committed an offense, thus engaging in

delinquent conduct. Tex. Fam. Code Ann. ' 54.03(f) (West Supp. 2002); B.M., 1 S.W.3d at 206. A trial

court=s findings of fact entered after a bench trial have the same force and dignity as a jury=s verdict. B.M.,

1 S.W.3d at 206; In re T.D., 817 S.W.2d 771, 777 (Tex. App.CHouston [1st Dist.] 1991, writ denied).


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                 J. L. O. first contends that the evidence is insufficient to show he knowingly, intentionally, or

recklessly caused bodily injury to Blair. We disagree.

                 A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to

another. Tex. Pen. Code Ann. ' 22.01(a) (West Supp. 2002). Assault is elevated from a Class A

misdemeanor to a third-degree felony if it is committed against a person the assailant knows to be a public

servant while that public servant is lawfully discharging an official duty or because of the performance of an

official duty. Id. ' 22.01(b)(1) (West Supp. 2002).

                 Generally, a person who acts without the requisite culpable mental state does not commit an

offense. Id. ' 6.02(a) (West 1994). A person acts intentionally if he consciously desires to engage in the

illegal conduct or cause the result. Id. ' 6.03(a) (West 1994); Beltran v. State, 593 S.W.2d 688, 689

(Tex. Crim. App. 1980). A person acts knowingly if he is aware of the nature of his conduct or that his

conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. ' 6.03(b) (West 1994). A person

acts recklessly if he is aware of but consciously disregards a substantial and unjustifiable risk that the result

will occur. Id. ' 6.03(c); Navarro v. State, 863 S.W.2d 191, 205 (Tex. App.CAustin 1993), pet. ref=d,

891 S.W.2d 648 (Tex. 1994). Intent can be proven by circumstantial evidence and can be inferred from a

defendant=s acts, words, and conduct. See Beltran, 593 S.W.2d at 689; Moyer v. State, 948 S.W.2d

525, 530 (Tex. App.CFort Worth 1997, pet. ref=d); Zuliani v. State, 903 S.W.2d 812, 827 (Tex.

App.CAustin 1995, pet. ref=d).

                 Here, J. L. O. made motions that both Millegan and Blair interpreted as threatening. He

swore at the teachers and threatened to hurt them and to Awale@ on them. Millegan testified that he


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attempted to swing his fist at her before she and Blair tried to place him in the therapeutic hold. When they

attempted to restrain him, he began bucking his torso violently, wrenching himself out of Blair=s grip.

Although J. L. O. attempts to characterize his behavior as a simple attempt to prevent himself Afrom being

thrown to the ground,@ Blair=s and Millegan=s testimony characterized it as a more violent reaction. Millegan

said he Apulled out of@ and Aripped out of@ her and Blair=s hands.

                 This cause is similar to Brooks v. State, in which we held the evidence sufficient to support

a conviction of assault on a public servant when the defendant struck a police officer as he attempted to

usher her to a porch to stop her from interrupting an interview. Brooks v. State, 967 S.W.2d 946, 947-48

(Tex. App.CAustin 1998, no pet.). The defendant and her husband both testified that the incident was

accidental and not the result of a conscious effort to hit the officer, but that the defendant Awas merely trying

to free herself from [the officer] as he physically guided her to the porch.@ Id. at 948. The officer said he

began to escort her to the porch when Ashe 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.@ Id. We held

that, despite the testimony of the defendant and her husband, a jury could reasonably have inferred that she

swung Awith the intention of injuring [the officer] or with knowledge that an injury was reasonably certain to

occur.@ Id. at 949. We noted that assault may be committed recklessly but that such a possibility was not

authorized by the indictment. Id. at 948 n.1. Here, J. L. O. similarly reacted violently, injuring Blair as she

attempted to restrain him; assault by recklessly causing injury was authorized by the State=s petition. We

hold that the evidence is sufficient to support a finding that J. L. O.=s violent attempts to resist restraint after


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he made threatening movements and verbal threats were reckless at a minimum; they caused Blair injury and

constituted assault. We overrule J. L. O.=s first issue on appeal.

                 J. L. O. next contends that the evidence is insufficient to establish that Blair was a public

servant discharging a legal duty. Although J. L. O. concedes that courts have broadly defined who is a

public servant, he contends that not every school district employee should be considered a public servant.1

He also contends that the evidence does not show she was discharging an official duty. We disagree. The

law defines a person as a public servant if she is Aelected, selected, appointed, employed or otherwise

designated as . . . an officer, employee, or agent of government.@ Tex. Pen. Code Ann. ' 1.07(a)(41)(A)

(West 1994). Government is defined as the state, a county, municipality or political subdivision, or any

branch or agency of the state, a county, municipality, or political subdivision. Id. ' 1.07(a)(24) (West

1994). The evidence shows that Blair was employed by the Pflugerville Independent School District. We

hold that Blair was a public servant as defined by the penal code. B.M., 1 S.W.3d at 207.

                 J. L. O. argues that A[a] ministerial act such as instructing a student how to sit in a desk can


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           J. L. O. cites for support the previous version of the statute governing an assault on a teacher,
under which certain assaults were elevated from Class C to Class A or B misdemeanors if committed
against Aa classroom teacher, counselor, principal, or other similar instructional or administrative employee
of a primary or secondary school accredited by the Texas Education Agency@ while engaged in educational
duties. See Act of May 27, 1989, 71st Leg., R.S., ch. 739, '' 1, 2, 1989 Tex. Gen. Laws 3304, 3304-05
(amended 1995, 1997, 1999) (current version at Tex. Pen. Code Ann. ' 22.01 (West Supp. 2002)).
Rather than supporting J. L. O., this cuts against his contention. An education or teaching assistant is
arguably a Asimilar instructional or administrative employee,@and thus assault on an assistant under the old
statute would be an elevated offense. Further, the legislature revised the statute, using the broad definition
of Apublic servants@ as officers, employees, or agents of the state, county, municipality, political subdivision,
or any branch or agency of the state, a county, municipality, or political subdivision. Tex. Pen. Code Ann. '
1.07(a)(24), (41)(A) (West 1994). This indicates an intent to extend the law=s protection to all school
employees.

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hardly be deemed an official act or duty,@ but cites no authority for this point. Teachers must have the

authority to establish rules and maintain discipline within their classrooms. J. L. O. disobeyed the

classroom=s rules and then made threatening motions when asked to correct his behavior. Millegan first

tried to calm J. L. O. and to defuse the situation. When Blair and Millegan felt threatened, they responded

by attempting to restrain J. L. O. until he calmed down. During their attempt to restrain him, J. L. O.=s

violent resistance injured Blair. We hold that Blair was Alawfully discharging an official duty@ by assisting

Millegan in controlling J. L. O.=s unruly and potentially threatening behavior.

                  J. L. O. further contends that even if Blair was a public servant, the record contains no

evidence that he knew she was a public servant. To elevate simple assault to assault on a public servant, the

offender must know that the person he assaults is acting as an agent, officer, or employee of a governmental

branch or agency; he need not know the victim=s legal status as a public servant. In other words, the

offender must realize that he is assaulting a teacher, school district employee, police officer, or firefighter, but

does not have to know that teachers, school employees, police officers, or firefighters are defined by the

penal code as public servants. See Tex. Pen. Code Ann. ' 8.03(a) (West 1994) (ignorance of the law is no

defense); Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (evidence showed intent to

assault public servant where defendant struck uniformed police officer). Here, J. L. O. concedes that the

evidence supports an inference that he knew Blair was an education assistant; he need not have known that

her employment gave her special legal standing under the penal code. We overrule J.L.O.'s second issue.

                  Having overruled J.L.O.'s contentions on appeal, we affirm the district court=s adjudication

of delinquency.


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                                              __________________________________________

                                              Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: August 8, 2002

Do Not Publish




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