                                    NO. 07-01-0254-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                      APRIL 18, 2002

                          ______________________________


                       DAVID LE’RHONE JOHNSON, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

           FROM THE 100TH DISTRICT COURT OF CHILDRESS COUNTY;

                    NO. 4343; HONORABLE DAVID MCCOY, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant David Le’Rhone Johnson appeals from his conviction for assault on a

public servant. By six issues he challenges the jury charge, the sufficiency of the

evidence, the makeup of the jury venire and the failure of the trial court to grant a mistrial

because of improper evidence of extraneous offenses. We affirm.
       On December 18, 2000, appellant was incarcerated in the Childress County jail.

He began making what the jailers considered excessive, disruptive noise and was banging

on the walls and doors of his cell. The jailers went to appellant’s cell to try to calm him

down and discovered a plastic glass on fire outside the cell. They called Childress County

Sheriff’s Deputy Randall Hendricks, who was then at home on his supper break, about the

problem. Hendricks came to the jail. Hendricks and the jailers then went to appellant’s

cell, opened the door, and instructed appellant to come out. He refused and told the jailers

that they were going to have to “come in and get me.” Deputy Hendricks, who had

unholstered his pepper spray in the event of difficulties with appellant, stepped into the cell

and reached to grab appellant’s shirt. Matters went downhill. Trial testimony was to the

effect that during the ensuing few moments appellant struck Hendricks and Hendricks used

pepper spray to subdue appellant.


       Appellant was charged with assault on a public servant. See TEX . PEN . CODE ANN .

§ 22.01 (Vernon 1994).1 He was convicted by a jury and sentenced to 4 1/2 years

incarceration in the Texas Department of Criminal Justice, Institutional Division.


       By six issues appellant asserts reversible error. His first issue alleges error

because the trial court improperly charged the jury as to appellant’s right to resist arrest.

Issue two challenges the failure of the trial court to charge the jury on the lesser-included

offense of assault. Issues three and four challenge the legal and factual sufficiency of the

evidence. Via issue five appellant asserts that his Sixth Amendment rights were violated


       1
           Further reference to a provision of the Penal Code will be by reference to “PC § _.”

                                                2
because members of his race were excluded from the jury venire. Issue six urges that the

trial court’s jury instruction to disregard evidence of extraneous offenses was insufficient

to cure error and the court should have granted a mistrial.


               ISSUE 1: FAILURE TO PROPERLY CHARGE THE JURY
                        AS TO APPELLANT’S RIGHT TO RESIST


       Appellant urges that although he did not testify, the evidence raised the issue of

self-defense and that the trial court incorrectly charged the jury on such defense. He

references cases such as Lavern v. State, 48 S.W.3d 356 (Tex. App.--Houston [14th Dist.]

2001, pet. refused), to support his position that evidence can raise the defense without his

having testified. He points to two areas of testimony as the basis for his issue. First, he

notes an inconsistency between a written report by Deputy Hendricks and Hendricks’ trial

testimony. Next he points to testimony of Sheriff’s Deputy Bill Tribble, who was a jailer at

the time of the incident on December 18, 2000.


       Deputy Hendricks’ trial testimony was that he instructed appellant to come out of

the cell and appellant refused. According to Hendricks he had his pepper spray out of its

holster, entered appellant’s cell and grabbed appellant’s shirt. Then appellant swung his

fist at Hendricks, hit Hendricks on the shoulder and knocked him into the door of the cell.

Hendricks then used his pepper spray to incapacitate appellant.


       Hendricks filled out a report shortly after the incident. Hendricks wrote in the report

that appellant swung at and hit Hendricks with appellant’s left fist. At trial Hendricks


                                              3
testified that appellant used his right fist, and acknowledged that his trial testimony differed

in that aspect from his written report.


       Tribble testified that before Hendricks entered appellant’s cell, Tribble heard

appellant say that appellant had his arms behind his back. Tribble did not see whether

appellant’s arms were behind his back at the time appellant made the statement. Nor did

Tribble see appellant’s fist strike Hendricks.


       Appellant’s position is that these parts of the record comprise some evidence that

before appellant hit Hendricks, Hendricks used pepper spray on appellant and that such

action by Hendricks comprised unlawful force, justifying appellant’s actions in striking

Hendricks. Appellant asserts that the trial court was required to instruct the jury on his

defense and improperly did so.


       The trial court’s instruction to the jury placed the burden of proof on appellant to

prove the defense by a preponderance of the evidence, as is prescribed for affirmative

defenses. See PC § 2.04(a), (d). Appellant’s requested instruction placed the burden of

proof on the State to disprove that appellant’s action was justified beyond a reasonable

doubt. See PC §§ 9.02, 2.03(a), (d).


       The trial court’s instruction to the jury misplaced the burden of proof. Self-defense

is justification excluding criminal responsibility.    As such, it is not classified as an

affirmative defense by the Penal Code, but is classified as a defense. See PC §§ 9.02,

2.03(a); Luck v. State, 588 S.W.2d 371, 375 (Tex.Crim.App. 1979); Kizart v. State, 811


                                               4
S.W.2d 137, 139 (Tex.App.--Dallas 1991, no pet.). Once a defendant has produced

sufficient evidence to raise what is classified as a defense by the Penal Code, the State

is required to disprove the defense beyond a reasonable doubt. See PC § 2.03(c), (d);

Kizart, 811 S.W.2d at 139; Hunt v. State, 779 S.W.2d 926, 927 (Tex.App.--Corpus Christi

1989, pet. ref'd).


       We disagree with appellant’s premise, however, that the evidence raised the

defense. Assuming, arguendo, that pepper spraying of appellant by Hendricks before

appellant hit Hendricks would have been use of “unlawful force” and would have justified

appellant’s action, a question which we do not decide, the testimony relied on by appellant

to raise the issue did not do so. Appellant may well have had his hands behind his back

before Hendricks entered the cell. But evidence that appellant had his hands behind his

back before Hendricks entered the cell is not evidence that appellant kept his hands there

when Hendricks entered the cell and grabbed appellant’s shirt to extricate appellant from

the cell. Hendricks’ testimony was clear and unequivocal that he did not pepper spray

appellant until after he entered the cell and appellant struck him and knocked him back

into the cell door. The admitted discrepancy between Hendricks’ written report and his trial

testimony as to whether appellant struck Hendricks with appellant’s left fist or his right fist

does not contradict Hendricks’ unimpeached testimony that he did not spray appellant until

after appellant hit him.


       The evidence does not raise the issue of self-defense and appellant was not

entitled to an instruction on self-defense. Appellant does not assert that he was harmed


                                              5
by the instruction given by the trial court aside from his claim that the jury should have

been charged with the instruction he requested. We overrule appellant’s first issue.




               ISSUE 2: FAILURE TO CHARGE THE JURY ON A LESSER
                           INCLUDED OFFENSE OF ASSAULT


       Appellant was indicted for “. . . intentionally and knowingly caus[ing] bodily injury

to Randall Hendricks . . . and the defendant knew the said Hendricks was a public servant,

. . . and the said offense was committed while Randall Hendricks was lawfully discharging

an official duty . . . .” See PC § 22.01(b)(1). As in his first issue, appellant urges that there

is some evidence that Deputy Hendricks pepper sprayed appellant before appellant hit

Hendricks and that Hendricks’ action was excessive force.             Appellant reasons that

because some evidence existed that Hendricks was using excessive force, then the record

contained some evidence that Hendricks was not “lawfully discharging an official duty”

because the use of excessive force is not lawful. He concludes that given such evidence,

the jury could have found that even if he was guilty, he did not assault a public servant

lawfully discharging an official duty and therefore he could only have been found guilty of

assault. See PC § 22.01(a).


              Under provisions of TEX . CRIM . PROC. CODE ANN . art. 37.09 (Vernon 1981),2

an offense is a lesser-included offense if:


       2
       Further references to a provision of the Code of Criminal Procedure will be by
reference to “CCP art. _.”

                                               6
       (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.


       Determining whether a charge on a lesser-included offense is warranted presents

a dual inquiry. The first inquiry is whether the lesser offense is included within the proof

necessary to establish the offense charged. See Rousseau v. State, 855 S.W.2d 666,

672-73 (Tex.Crim.App. 1993). If so, the second inquiry is whether there is some record

evidence from which a jury could rationally find that if the defendant is guilty, he is guilty

only of the lesser offense. Id. Each definition of a lesser-included offense in CCP art.

37.09 is stated with reference to "the offense charged," and specifically states the manner

in which the lesser-included offense differs from the offense charged. See Bell v. State,

693 S.W.2d 434, 438 (Tex.Crim.App. 1985). Thus, in considering appellant’s issues, we

must consider the offense as charged by the language of the indictment and compare the

charged offense with the statutory elements of the lesser-included offenses which

appellant alleges should have been charged. Id. at 438, n.8; Sanders v. State, 664

S.W.2d 705, 708 (Tex.Crim.App. 1982) (op. on rehr’g.).


       The offense for which appellant was indicted included the elements of assault, see

PC § 22.01(a)(1), together with the additional element prescribed by PC § 22.01(b) that


                                               7
appellant knew Hendricks was a public servant lawfully discharging an official duty. We

have previously concluded that, even assuming, arguendo, that pepper spraying appellant

before appellant hit him would have been use of excessive force by Hendricks and would

have made his actions unlawful, the record does not contain any evidence that the pepper

spraying of appellant took place before appellant hit Hendricks. Hendricks had his uniform

on at the time of the incident, Hendricks had encountered appellant on prior occasions

outside the jail and had then identified himself as a peace officer to appellant, and

appellant does not assert that he did not know Hendricks was acting as a deputy sheriff.

The evidence would not rationally have supported a finding that if appellant assaulted

Hendricks, the assault was while Hendricks was acting otherwise than in lawful discharge

of an official duty. Accordingly, the jury could not have rationally convicted appellant only

of assault. See PC § 22.01(b)(1); Lavern, 48 S.W.3d at 361-62. We overrule appellant’s

second issue.


                        ISSUES 3 and 4: LEGAL AND FACTUAL
                           SUFFICIENCY OF THE EVIDENCE


       By his third and fourth issues, appellant urges that the evidence was legally and

factually insufficient to support his conviction. He briefs and argues the issues together,

and we will address them together.


       Appellant identifies three areas of allegedly insufficient evidence:        (1) legal

insufficiency that Hendricks was lawfully discharging an official duty when appellant hit

him; (2) factual insufficiency that Hendricks suffered a bodily injury from appellant’s

                                             8
actions; and (3) factual insufficiency that appellant hit Hendricks. Evidence to support a

conviction is legally sufficient if, after viewing the evidence in the light most favorable to

the prosecution, a rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App. 1996). All

the evidence is reviewed, but evidence that does not support the verdict is disregarded.

See, e.g., Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991).


       Factual sufficiency review of the evidence begins with the presumption that the

evidence supporting the jury’s verdict was legally sufficient under the Jackson test.

Clewis, 922 S.W.2d at 134. Factual sufficiency review is accomplished without viewing the

evidence in the light most favorable to the prosecution, as the evidence is viewed in

determining legal sufficiency. Id. The evidence is factually sufficient to support the verdict

if the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Id. Stated otherwise, the evidence is not factually sufficient to support

a conviction if the appellate court determines, after viewing all the evidence, both for and

against the finding in a neutral light, that the proof of guilt is so obviously weak as to

undermine the confidence in the jury’s determination, or the proof of guilt, although

adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23

S.W.3d 1, 11 (Tex.Crim.App. 2000). In undertaking review of evidentiary sufficiency

challenges, we are mindful that the jury is the sole judge of the weight and credibility of the

evidence. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).



                                              9
       We will first address appellant’s factual sufficiency challenge to evidence that

appellant hit Hendricks and thus assaulted Hendricks, regardless of whether Hendricks

was acting lawfully or unlawfully. Appellant urges that the evidence of appellant’s striking

Hendricks is so inconclusive and conflicting on the question that the jury’s finding is clearly

wrong and unjust. We disagree.


       Hendricks testified clearly that appellant hit him and knocked him into the cell door.

He testified that the next morning he had a bruise on his back where he hit the cell door,

had pain in his shoulder, and had limited motion of his shoulder. He attributed all of the

symptoms, bruising and physical limitations to appellant’s striking him. Although Hendricks

filed a report shortly after the incident and stated that appellant used his left fist in hitting

him, even though appellant actually used his right fist, Hendricks at no time equivocated

as to whether appellant hit him. Tribble testified that he did not have a good view of

appellant and Hendricks when the incident occurred because of Tribble’s position outside

the cell. Tribble’s statement that he did not see appellant strike Hendricks does not

contradict Hendricks’ testimony. In any event, conflicts in testimony and matters of

credibility are for the jury to resolve. We conclude that after viewing all the evidence, both

for and against the finding in a neutral light, that the proof of guilt is not so obviously weak

as to be greatly outweighed by contrary proof. Thus, we conclude that the evidence that

appellant struck Hendricks is factually sufficient. See Johnson, 23 S.W.3d at 11.


       We next consider the factual sufficiency of the evidence to support a finding that

Hendricks suffered bodily injury from appellant’s actions. Appellant’s challenge is based


                                               10
on Hendricks’ testimony that he did not have pain on the evening of December 18th and

that he sought no medical attention, together with the inconsistency in Hendricks’

description of which hand appellant used to strike him.


       Bodily injury is defined by the Penal Code as meaning physical pain, illness, or any

impairment of physical condition. See PC §1.07(a)(8). The Penal Code definition of

“bodily injury” encompasses even relatively minor physical contacts. See Lane v. State,

763 S.W.2d 785, 786 (Tex.Crim.App. 1989).


       Hendricks testified, and was thoroughly cross-examined, about his physical

condition as a result of the confrontation with appellant. There is no evidence or testimony

that he had impairment of his shoulder, pain in the shoulder or bruising on his back before

the jailhouse incident with appellant. He attributed his soreness, stiffness, limitation of

motion and bruising which he noted on the following day to the episode with appellant.

The Penal Code does not place a time limit on when manifestations of bodily injury are

required to appear. Nor do we, under these circumstances. The causal relationship

between the incident and Hendricks’ bruise, pain and limitation of motion was for the jury

to resolve. The jury’s finding of a causal connection is not so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134.

The evidence is factually sufficient to support a finding that appellant’s actions caused

bodily injury to Hendricks.




                                            11
      Appellant’s legal sufficiency challenge to evidence that Hendricks was lawfully

discharging an official duty when appellant hit him refers, in part, to his arguments under

issues one and two. In our analysis of such issues we have referenced Hendricks’

testimony as to the sequence of events culminating in the pepper spraying of appellant.

We need not repeat that analysis. We conclude, after viewing the evidence in the light

most favorable to the prosecution, that a rational trier of fact could have found Hendricks

was discharging a lawful duty when appellant hit him, and the evidence of such element

of the crime is legally sufficient. See Jackson, 443 U.S. at 319; Clewis, 922 S.W.2d at

132. Appellant’s third and fourth issues are overruled.


                ISSUE 5: VIOLATION OF SIXTH AMENDMENT RIGHT
                       BY RACIAL MAKEUP OF JURY VENIRE


      Appellant’s fifth issue asserts that his rights under the Sixth Amendment to the

federal constitution were violated by the small percentage of African-American members

in the jury venire. He refers us to Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42

L.Ed.2d 690 (1975), Pondexter v. State, 942 S.W.2d 577 (Tex.Crim.App. 1997), and their

progeny, as authority. In doing so, appellant recognizes that authority places the burden

on him to prove, as part of his prima facie showing of a fair cross-section requirement

violation, that the underrepresentation of a distinctive group in the jury venire is due to

systematic exclusion of members of the group by the venire-selection process. See Duren

v. Missouri, 439 U.S. 357, 364, 366, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979);

Pondexter, 942 S.W.2d at 580-81. He does not claim that he proved a systematic


                                            12
exclusion of African-Americans from the venire. Rather, he asserts that simply proving

underrepresentation of African-Americans on the venire should suffice to meet his burden

under the facts of his case. We disagree.


       In considering appellate issues based on the federal constitution we follow the

guidance of the United States Supreme Court. See State v. Guzman, 959 S.W.2d 631,

633 (Tex.Crim.App. 1998). And, it is axiomatic that intermediate Texas appellate courts

have the duty to follow pronouncements of the Texas Court of Criminal Appeals. See

Flores v. State, 883 S.W.2d 383, 385 (Tex.App.--Amarillo 1994, pet. ref’d). Both the

United States Supreme Court and the Court of Criminal Appeals have held that in order

to establish a prima facie violation of the requirement that a fair cross section of the

community be represented in the venire, appellant must show that: 1) the group alleged

to be excluded is a "distinctive" group in the community; 2) the representation of this group

in venires from which juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and 3) this underrepresentation is due to

systematic exclusion of the group in the jury venire selection process. See Duren, 439

U.S. at 364, 99 S.Ct. at 668; Pondexter, 42 S.W.2d at 580. Despite appellant’s argument

that, as a practical matter, the systematic exclusion of African-Americans can never be

proved in certain counties such as Childress county, we are not at liberty to disregard

decisions by the United States Supreme Court or the Texas Court of Criminal Appeals.

Appellant did not prove the third required element that the alleged underrepresentation




                                             13
was due to a systematic exclusion of African-Americans. We overrule appellant’s fifth

issue.


                   ISSUE 6: INSTRUCTION TO DISREGARD EVIDENCE
                               OF EXTRANEOUS OFFENSES


         By his sixth issue, appellant complains of the trial court’s failure to grant a mistrial

following testimony by Hendricks that Hendricks had arrested appellant “a couple of times”

before the incident for which appellant was indicted. Such testimony by Hendricks violated

a pretrial motion in limine which was granted. The testimony was timely objected to by

appellant.3 The trial court sustained the objection, directed that the testimony be stricken

from the record and instructed the jury that the testimony was not to be considered for any

purpose. Appellant’s motion for mistrial was denied.


         Denial of a motion for mistrial is reviewed under an abuse of discretion standard.

See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). The determination of

whether a given error necessitates a mistrial must be made by examining the particular

facts of the case. Id.


         When testimony is interjected, deliberately or inadvertently, which has no relevance

to any material issue in the case and which is potentially prejudicial to the accused,

appellate courts presume that an instruction to disregard the evidence will be obeyed by


         3
        Motions in limine do not preserve error. See Webb v. State, 760 S.W.2d 263, 275
(Tex.Crim.App. 1988). This is true whether the motion is granted or denied. See Willis
v. State, 785 S.W.2d 378, 384 (Tex.Crim.App. 1989); Webb, 760 S.W.2d at 275.

                                                14
the jury. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484

U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). Exceptions to the rule are those extreme

cases where it appears that the evidence or other potentially prejudicial event is clearly

calculated to inflame the minds of the jury and is of such a character as to suggest the

impossibility of withdrawing the impression produced on the jury. Id.


       We find guidance as to appellant’s contention in Coe v. State, 683 S.W.2d 431

(Tex.Crim.App.1984) and Kelley v. State, 677 S.W.2d 34, 36 (Tex.Crim.App.1984). In

Coe, defense counsel asked an officer who conducted a lineup if two particular witnesses

had made a positive identification of the defendant. The officer replied "No, sir; they were

the complaining witnesses in the other robberies." The Court of Criminal Appeals held

that denial of defendant's motion for a mistrial was not reversible error. See Coe, 683

S.W.2d at 435-36. The defendant in Kelley was convicted of aggravated robbery. He was

apprehended upon suspicion of driving while intoxicated. The arresting officer testified

that he believed appellant was under the influence of drugs, in part because he saw

needle marks on defendant's arm. An instruction for the jury to disregard the reference to

the extraneous offense was held sufficient to cure any error. See Kelley, 677 S.W.2d at

36.


       The testimony of Hendricks did not include the bases for appellant’s prior arrests,

nor any other information in connection with them. The trial court promptly had the jury

removed from the courtroom to consider appellant’s objection. When the jury was brought

back into the courtroom, the judge instructed the jury that the testimony was to be


                                            15
disregarded and not to be considered for any purpose. In the presence of the jury he

ordered the testimony stricken from the record.


       The trial court was able to observe the demeanor of the witness, the atmosphere

in the courtroom, the reactions, if any, of the jurors, and gauge the effect of the court’s

actions and instruction on the jury in light of the status of the evidence and the nature of

the charges against appellant. We do not believe the trial court abused its discretion in

concluding that the instruction cured any potential prejudice from the testimony. See Ladd,

3 S.W.3d at 567; Kelley, 677 S.W.2d at 36.


       Appellant additionally asserts that the trial court’s instruction as it was given

constituted error because it implied that a proper purpose existed for Hendricks’ testimony.

However, appellant did not object on such basis in the trial court. To preserve error for

review, a litigant must timely object and state the grounds for the ruling sought from the

trial court with sufficient specificity to make the trial court aware of the complaint, unless

the specific grounds were apparent from the context of the objection. See TEX . R. APP . P.

33.1(a)(1)(A). The trial court was not afforded opportunity to rule on the contention made

on appeal, and we decline to consider it. Id.


       We overrule appellant’s sixth issue.


                                       CONCLUSION


       Having overruled appellant’s six issues, we affirm the judgment of the trial court.



                                              16
                       Phil Johnson
                        Justice


Do not publish.




                  17
