Opinion filed June 14, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00186-CR
                                  __________

              ROY MICHAEL GEISENDORFF, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 70th District Court
                               Ector County, Texas
                          Trial Court Cause No. A-45,283


                      MEMORANDUM OPINION
      A jury convicted Appellant, Roy Michael Geisendorff, of the third-degree
felony offense of assault on a public servant and assessed his punishment at six
years’ confinement and a $1,500 fine. The trial court sentenced him accordingly.
Appellant brings three issues on appeal, contending (1) Appellant was denied
effective assistance of counsel when trial counsel failed to strike Juror No. 34; (2)
the trial court reversibly erred in denying Appellant’s motion for directed verdict;
and (3) the evidence was legally insufficient to support his conviction. Because the
evidence was sufficient to support the jury’s verdict, because the trial court
committed no reversible error, and because failing to strike prospective Juror No. 34
alone did not constitute a denial of effective assistance of counsel on the record
before us, we affirm the trial court’s judgment.
                                      Brief Facts
      The record before us is, frankly, disturbing. We are provided both witness
testimony about the events resulting in Appellant’s arrest and dash-camera stills and
video records of a portion of those events.
      Abner Jonathan Enriquez worked as the manager’s right-hand man at the
Albertsons Market Street in Odessa.
      On July 10, 2015, at a little after 12:00 p.m., he saw a man he identified as
Appellant outside the store. He testified Appellant was “hyped up,” walking, and
shouting at customers. When asked if “people [were] complaining about what he
was doing,” Enriquez said, “No, they just wanted us to know that there was a little
something wrong with him, because, you know, he kept yelling and talking about,
you know, Obama needs to come out of the office.”
      Enriquez testified he was concerned that Appellant was sick or that something
was wrong, so he called 9-1-1 and explained the situation and his concerns.
Specifically, Enriquez testified:
      I just told them that I needed an officer to go out there, because I had a
      fellow out there, you know, that was acting kind of strange. I didn’t
      know if he was sick, or what, you know. So that’s why I called.

             ....

            Q: You said you thought he might have been sick. Did you ever,
      did you tell the officers anything else about it?



                                           2
            A: Well, when the first officer arrived, you know, I just told him,
      you know, he’s acting, he’s acting strange, you know. . . .

             Q: Do you remember ever saying anything about him being
      intoxicated or anything like that?

             A: No, sir.

      Officer Sammy Eason was the first police officer to arrive. Enriquez met
Officer Eason outside the store. He testified that he told the officer what was going
on and that the officer waited for Appellant to walk up to the officer. The officer
asked Appellant for identification, and Appellant argued with him, saying that he
had done nothing wrong and that he knew his rights. Enriquez testified the first
officer tried to put his hand in Appellant’s pocket and asked Appellant if he had
anything in his pockets. But the video shows no movement toward Appellant by
Officer Eason—only conversation.
      Enriquez said that, when the second officer arrived, Appellant continued to
deny that he had anything in his pockets. Enriquez testified that both officers
continued to try to check Appellant’s pockets.
      Officer Eason testified that Officer Chris Aguilar arrived and saw a bulge in
Appellant’s front pocket so the officers escalated their efforts to search Appellant
for weapons. Appellant had a 32- or 44-oz drink in one hand and a cigar in the other
hand. Appellant continued to yell and began kicking at the officers. Enriquez
testified the officers were “trying to calm him down and get him to, to handcuff him
so they could subdue him.”
      Officer Eason testified he had been the first officer to arrive on the scene. He
described his experience as including two and one-half years with the Odessa Police
Department, preceded by eleven and one-half years in the military in both the United
States Army and the United States Navy. When Officer Eason arrived, Appellant
                                          3
turned and started walking away, so he called Appellant back. Appellant complied.
Officer Eason testified that, as far as he knew, Appellant was committing no crimes
and doing nothing wrong.
      Officer Eason said Appellant was pacing back and forth. He contended that
the pacing and Appellant’s nervousness were an indication of “fight or flight.” The
video does not reveal pacing by Appellant. Officer Eason testified that he asked
Appellant for identification and that Appellant responded by asking why Officer
Eason needed to see his ID. He described Appellant’s response as passive resistance
and contended that Appellant was challenging him and trying to goad him to see
what he would do. Officer Eason waited until his backup, Officer Aguilar, arrived
before trying to pat Appellant down. They decided to pat Appellant down because
Officer Aguilar saw a bulge in one of Appellant’s front pockets.
      Officer Eason also explained, in response to questioning, that the reason for
patting down a person was to check for weapons for safety reasons. In making the
decision whether to perform a pat-down, Officer Eason’s practice was to pat people
down based on “[t]heir demeanor, how they’re reacting, how they’re behaving.”
When they pat someone down, their practice is to get the person under physical
control by “mobiliz[ing]” [sic] their hands as though they were going to put cuffs on
the person.
      The video reflects that, when Officer Aguilar arrived on the scene, he came
forward quickly and grabbed Appellant. He knocked the cigar out of Appellant’s
hand to prevent his being burned and began to try to twist Appellant’s hands behind
his back. He and Officer Eason began to attempt to search Appellant. Although
Appellant had agreed to a pat-down, when the officers began to immobilize his hands
and to knock the cigar out of his hand, he began to resist and shouted at them to take
their hands off him. There is testimony that Officer Eason thought Appellant was
throwing his drink at him, but Appellant was actually hitting Officer Eason in the
                                          4
left cheek with his drink in his hand. Officer Aguilar admitted that he did not ask
Appellant to put the drink or the cigar down before he grabbed Appellant’s arm.
Appellant never made any threats to the officers, and the officers found no weapons
on him.
      Officer Aguilar testified he had been a police officer for twenty-seven years
and had attained the rank of corporal. He was a task force officer on loan to the
DEA from the Odessa Police Department. His training as a police officer and a DEA
task force officer was extensive. He testified that, when dealing with people
suspected of being under the influence of narcotics or controlled substances, he was
trained to take extra precautions to make sure the suspect had no weapon or object
that could be used as a weapon. Officer Aguilar described Appellant as acting as
though he were intoxicated and as having a bulge in his right front pocket that could
be a weapon.
      Officer Aguilar testified that, when Appellant agreed to the pat-down, he
started to grab Appellant’s hands to twist them behind him and told him to drop his
cigar and that Appellant then started to pull away and to tell Officer Aguilar to get
off him. At that point, the encounter essentially escalated to a brawl that continued
until the officers threatened Appellant with pepper spray.
      Officer Aguilar testified that, after Appellant was threatened with pepper
spray, cuffed, arrested, and secured in the back seat of Officer Aguilar’s police unit,
the in-car video system recorded Appellant mumbling and rambling and making
“involuntary movements with his mouth.” He testified Appellant leaned forward,
then leaned back, and talked to himself. Officer Aguilar testified that his twenty-
seven years as a police officer and his DEA training and experience qualified him as
an expert to testify that involuntary clenching of the jaw was usually a sign of
somebody being on a controlled substance or needing the controlled substance.
These activities, except for talking, are not reflected on the video that was admitted
                                          5
into evidence. Officer Aguilar admitted he never found any drugs on Appellant. He
also admitted that, although Appellant appeared to him to be intoxicated at the scene
of the encounter, he did not appear to be intoxicated during booking.
      Nowhere in the record does either officer suggest he had been trained in
dealing with mentally ill persons. Yet, the record reflects several suggestions that
Appellant might have mental health issues.                    Appellant’s mother, Tiffany
Geisendorff, sent a letter dated October 18, 2015, to the trial judge, explaining that
Appellant had exhibited signs of mental illness for many years. Her mother’s sister
had been diagnosed with manic depressive schizophrenia and had spent most of her
life in and out of care facilities. Appellant’s mother had tried to get mental health
treatment for Appellant but had been told she should call the police. The Pearland
police helped, and later the Brazoria County Sheriff’s Office helped. But the
resulting in-patient treatment lasted less than seventy-two hours. She said Appellant
had shot himself as a teenager; was paranoid; talked to himself; used drugs; referred
“to his sister as Jessica Christ, sister to Jesus (himself)”; referred to his uncle as the
archangel Gabriel; and was, generally, disconnected from reality.
       It is unclear whether this information reached the trial judge. Ms. Geisendorff
was sent a letter from the court coordinator instructing her that her letter was an
attempt at an improper ex parte communication with the judge and that the court
would not act on her letter because the trial judge could act only on matters properly
before the court. The offense date alleged in the indictment was July 10, 2015. We
have repeatedly recognized both the interrelation of and the legal distinction between
mental illness and insanity at the time of the offense.1
      On February 16, 2016, Appellant’s trial counsel filed a Motion Suggesting
Incompetency and Request for Examination. On March 10, 2016, the trial court

      1
       Routh v. State, 516 S.W.3d 677 (Tex. App.—Eastland 2017, no pet.).


                                                6
entered an agreed order for psychiatric examination providing for Dr. Roddy Strobel
to examine Appellant for the purpose of determining whether Appellant was insane
at the time of the offense. A copy of Dr. Strobel’s report has been forwarded to this
court in a sealed record. This court’s review of Dr. Strobel’s report does not indicate
that she was aware of the letter Ms. Geisendorff sent to the court or of Appellant’s
history of mental health issues, including his having shot himself as a teenager. The
record is silent as to whether Appellant’s trial counsel was aware of the letter.
      The record is disturbing because Enriquez’s testimony suggests he believed
he was calling 9-1-1 to request a welfare check on Appellant. Ms. Geissendorff’s
letter suggests she believed the police were called to perform a welfare check on
Appellant. The police officers appear not to have been told they were called for a
welfare check on a suspected mentally ill person but to believe they had been called
to investigate criminal activity by Appellant. As a result, both the officers and
Appellant were put at risk of an unexpectedly volatile confrontation. We take notice2
of the fact that an increasing number of counties are recognizing the need to provide
dispatchers with the tools necessary for determining whether mental illness may be
a factor in determining who to dispatch to a call and what information must be
provided to the team responding to the call.3
                            Ineffective Assistance of Counsel
      In his first issue, Appellant argues that trial counsel rendered ineffective
assistance in failing to exercise a peremptory strike on Veniremember No. 34, Jesse
Ray Duarte, a captain with the police department that arrested and jailed Appellant.
He knew the two arresting officers, Eason and Aguilar, through his employment.
Although Captain Duarte said he could be a fair and impartial juror who would make

      2
       TEX. R. EVID. 201.
      3
         See, e.g., BLUEPRINT FOR SUCCESS: THE BEXAR COUNTY                        MODEL,
http://www.naco.org/sites/default/files/documents/Bexar-County-Model-report.pdf.

                                            7
a decision based on the evidence alone, he also stated he believed police officers
generally tried to help people. He disagreed with the suggestion that police officers,
by the nature of their job, assume the risk of being assaulted. He stated he believed
the primary purpose of punishment was punishment alone, but he could consider the
entire range of punishment. His opinions did not differ markedly from those of the
other members of the venire.
       The prosecutor mentioned Captain Duarte when the trial judge raised the
question of challenges for cause. Defense counsel stated he had no objection to
Captain Duarte’s not serving as a juror. The trial court moved on to the discussion
of another veniremember, and no one lodged a specific challenge for cause. There
was an indication defense counsel believed Captain Duarte had been struck, but he
did not pursue the issue. Both sides exercised all their peremptory challenges.
Appellant did not request an additional strike.
       The panel included a nurse who referred patients to Dr. Strobel, a man who
worked with Post Sentence Monitoring and was a former employee of the sheriff’s
department, a jailer, an IT specialist who worked on police cruisers and knew the
arresting officers, a former law enforcement officer, and the booking clerk who
actually booked Appellant into jail.
       To establish ineffective assistance of counsel, an appellant must show that his
counsel’s representation was deficient and that the deficiency prejudiced the
defense.4 An ineffective-assistance claim must be “firmly founded in the record,”
and “the record must affirmatively demonstrate” the meritorious nature of the claim.5
Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-

       4
        Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex.
Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

       5
        Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).


                                                 8
of-counsel claim because the record is generally undeveloped.6 In evaluating the
effectiveness of counsel under the deficient-performance prong, we look to the
totality of the representation and the particular circumstances of each case. 7 The
issue is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error.8 Review of counsel’s
representation is highly deferential, and the reviewing court indulges a strong
presumption that counsel’s conduct was not deficient.9
          It is not appropriate for an appellate court to simply infer ineffective assistance
based upon unclear portions of the record or when counsel’s reasons for failing to
do something do not appear in the record.10 “Trial counsel ‘should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.’”11 If trial counsel is not given that opportunity, we should not conclude
that counsel’s performance was deficient unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.”12 As the Texas
Court of Criminal Appeals has explained:
          A claimant must generally prove deficiency using affirmative evidence
          in the trial record sufficient to overcome the presumption that the
          challenged action was sound trial strategy. However, when no

          6
           Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson, 9 S.W.3d at 813–
14.

          7
           Thompson, 9 S.W.3d at 813.
          8
           See Strickland, 466 U.S. at 688–89; Nava, 415 S.W.3d at 307.

          9
           Nava, 415 S.W.3d at 307–08.

          10
              Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

          11
              Menefield, 363 S.W.3d at 593 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003)).

          12
              Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593).


                                                       9
       reasonable trial strategy could justify the trial counsel’s conduct,
       counsel’s performance falls below an objective standard of
       reasonableness as a matter of law, regardless of whether the record
       adequately reflects the trial counsel’s subjective reasons for acting as
       he did.13

       No motion for new trial was filed. Nothing in the record explains why trial
counsel did not strike Captain Duarte. We have no way of knowing, beyond mere
speculation, counsel’s reasoning or trial strategy. The evidence that Appellant struck
Officer Eason was uncontested. The issue was whether the officer felt pain. He
testified that he did. The other contested issue was Appellant’s state of mind. Based
on the record before us, the jury’s determination was well-founded in the record.
The jury convicted Appellant of a third-degree felony, and, despite evidence of
Appellant’s having committed prior criminal offenses, the jury assessed mid-range
punishment of six years’ confinement.
       Because counsel’s reasons for his conduct do not appear in the record and
because there is at least the possibility that the conduct could have been grounded in
legitimate trial strategy, we defer to counsel’s decisions and overrule Appellant’s
first issue.14
                      Sufficiency of the Evidence Standard of Review
       In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.15 This standard gives full play to the


       13
         Ex parte Bryant, 448 S.W.3d 29, 39–40 (Tex. Crim. App. 2014) (citations, internal quotation
marks, and alterations omitted).
       14
         See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
       15
         Jackson v. Virginia, 443 U.S. 307, 319 (1979).


                                                  10
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.16
       The trier of fact is the sole judge of the weight and credibility of the
evidence.17 Thus, when performing an evidentiary sufficiency review, we may not
reevaluate the weight and credibility of the evidence and substitute our judgment for
that of the factfinder.18 Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the light
most favorable to the verdict.19 We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.20
       To determine whether the State has met its burden under Jackson to prove a
defendant’s guilt beyond a reasonable doubt, we compare the elements of the crime
as defined by the hypothetically correct jury charge to the evidence adduced at trial.21
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.22 The law as authorized by the indictment means the




       16
         Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. (2015).
       17
         See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014).
       18
         See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
       19
         Murray, 457 S.W.3d at 448.
       20
         Id. at 448–49.
       21
         Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see Crabtree v. State, 389 S.W.3d 820,
824 (Tex. Crim. App. 2012) (“The essential elements of the crime are determined by state law.”).
       22
         Thomas, 444 S.W.3d at 8.


                                                  11
statutory elements of the charged offense as modified by the factual details and legal
theories contained in the charging instrument.23
        The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
guilt.24
        Sufficiency of the Evidence and Denial of Motion for Directed Verdict
        In his second and third issues on appeal, Appellant challenges the sufficiency
of the evidence of mens rea and of bodily injury and the propriety of the trial court’s
denial of his motion for directed verdict.
        The Texas Penal Code provides:
                (a) A person acts intentionally, or with intent, with respect to the
        nature of his conduct or to a result of his conduct when it is his
        conscious objective or desire to engage in the conduct or cause the
        result.

               (b) A person acts knowingly, or with knowledge, with respect to
        the nature of his conduct or to circumstances surrounding his conduct
        when he is aware of the nature of his conduct or that the circumstances
        exist. A person acts knowingly, or with knowledge, with respect to a
        result of his conduct when he is aware that his conduct is reasonably
        certain to cause the result.

               (c) A person acts recklessly, or is reckless, with respect to
        circumstances surrounding his conduct or the result of his conduct
        when he is aware of but consciously disregards a substantial and
        unjustifiable risk that the circumstances exist or the result will occur.
        The risk must be of such a nature and degree that its disregard
        constitutes a gross deviation from the standard of care that an ordinary

        23
          See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State
pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency
of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory
elements.”).
        24
           Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).


                                                     12
       person would exercise under all the circumstances as viewed from the
       actor’s standpoint.25
       Appellant points out that, when the officers arrived, they misread the situation
and interpreted Appellant’s walking back and forth as “fight or flight” mode. They
were unaware that Appellant was continuing the conduct that grocery store
employees and customers had observed and had caused Enriquez to call the police.
As a result, he argues, they responded aggressively to the situation they had misread.
       Appellant, on the other hand, was cooperative when the officers first asked to
pat him down. But, instead of continuing the investigation in the “calm and
professional manner” Officer Eason had adopted, “Officer Aguilar made a knee jerk
[sic] decision before he ever spoke to [Appellant] or Officer Eason.” In response,
Appellant argues, he instinctively reacted and “struck out randomly in his attempts
to free himself from a possible confinement that was unexpected, unjustified, and
undeserved.”
       He argues that he acted spontaneously in his confusion and surprise.
Consequently, he contends, he did not act intentionally, knowingly, or recklessly, as
those mental states are defined by statute. Appellant argues that his spontaneous
response does not satisfy the mens rea requirements to show he acted either
intentionally or knowingly or recklessly.
       To the extent Appellant argues his response to the officers was spontaneous
and without opportunity to form intent, the portion of the struggle visible on the
dash-camera video shows the contrary. To the extent Appellant argues he was
justified in resisting an unlawful arrest, he is in error. The use of force is not justified
to resist even an unlawful arrest or search the actor knows is being made by a peace
officer.26    Appellant does not suggests that he was defending himself against

       25
         TEX. PENAL CODE ANN. § 6.03(a), (b), (c) (West 2011).
       26
         Id. § 9.31(b)(2).

                                                13
excessive force or that he did not recognize as police officers the uniformed men
driving marked police units.
        He also argues that the State failed to prove he caused bodily injury to Officer
Eason. “‘Bodily injury’ means physical pain, illness, or any impairment of physical
condition.”27 Officer Eason testified that, when Appellant punched him in the face,
it hurt. The record shows a melee ensued after Officer Aguilar arrived and grabbed
Appellant. Appellant began kicking and swinging his arm, and the cup in his hand
connected with Officer Eason’s face. The activity moved out of camera view
unabated.
        Applying the appropriate standard of review, we hold the evidence is
sufficient to support the trial court’s judgment.
        An appellate court treats a complaint that a trial court improperly denied a
motion for directed verdict as a challenge to the sufficiency of the evidence.28 The
standard of review for a directed verdict claim is the same standard applied in a
sufficiency-of-the-evidence challenge.29                  Having determined that the evidence is
sufficient to support the trial court’s judgment, we hold the trial court committed no
error in denying Appellant’s motion for directed verdict. We overrule Appellant’s
second and third issues on appeal.




        27
          Id. § 1.07(a)(8) (West Supp. 2017).
        28
          Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (stating that an appellate court
treats a point of error complaining about a trial court’s failure to grant a motion for directed verdict as a
challenge to the legal sufficiency of the evidence).
        29
          Pollock v. State, 405 S.W.3d 396, 401 (Tex. App.—Fort Worth 2013, no pet.).


                                                     14
       We affirm the judgment of the trial court.




                                                   LEE ANN DAUPHINOT
                                                   SENIOR JUSTICE


June 14, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Dauphinot, S.J.30




       30
         Lee Ann Dauphinot, Senior Justice (Retired), Court of Appeals, 2nd District of Texas at
Fort Worth, sitting by assignment.

                                              15
