                                MEMORANDUM OPINION
                                       No. 04-10-00325-CR

                                         Sam Otis REED,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 218th Judicial District Court, Karnes County, Texas
                                Trial Court No. 09-11-00104-CRK
                            Honorable Bert Richardson, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: February 9, 2011

AFFIRMED

           Appellant Sam Otis Reed appeals his conviction for two counts of assault of a public

servant. His sole issue is that the trial court erred in refusing to include in the jury charge a

lesser-included offense of misdemeanor assault. We affirm the trial court’s judgment.

                                          BACKGROUND

           Reed is an inmate in the administrative segregation area of the Texas Department of

Criminal Justice Connally Unit in Karnes County. Inmates in the administrative segregation area
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are confined for twenty-three hours a day and are permitted one hour each day for recreation and

showering. One morning, correctional facility officer Charles Cody Ryder was escorting inmates

to the shower, when an altercation occurred between Reed, Officer Ryder, and another officer,

Lorraine Gonzales. As a result of the altercation, Reed was charged with and convicted of two

counts of assault of a public officer. Reed appeals his conviction.

                    STANDARD OF REVIEW & THE AGUILAR–ROUSSEAU TEST

       We review a trial court’s omission of a requested lesser-included offense from a jury

charge for an abuse of discretion. See Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d). Texas courts use the two-prong Aguilar–Rousseau test to determine

whether a defendant is entitled to a lesser-included offense instruction. See Hall v. State, 158

S.W.3d 470, 473 & n.7 (Tex. Crim. App. 2005) (citing Aguilar v. State, 682 S.W.2d 556, 558

(Tex Crim. App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). This

test requires (1) that the lesser offense actually be a lesser-included offense of the charged

offense; and (2) that the record contain some evidence that permits a rational jury to find the

defendant guilty only of the lesser-included offense. Id.

       In determining whether an instruction on a lesser offense is appropriate, we “evaluate[]

the evidence in the context of the entire record, but do[] not consider whether the evidence is

credible, controverted, or in conflict with other evidence.” Hall, 158 S.W.3d at 473. “Anything

more than a scintilla of evidence [is] sufficient to entitle a defendant to a lesser charge.” Bignall

v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

       Because the parties agree that misdemeanor assault is a lesser-included offense of the

charged offense of assault of a public servant under the first prong of the Aguilar–Rousseau test,

we consider only the second prong: whether there was some evidence from which a rational jury



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could find Reed guilty only of misdemeanor assault. See Hall, 158 S.W.3d at 473. A defendant

is guilty of misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury

to another. TEX. PENAL CODE ANN. §§ 22.01(a)(1), (b) (West Supp. 2010). The offense

becomes an assault on a public servant, a third-degree felony, if the assault is against a person

the actor knows is a public servant while the public servant is lawfully discharging an official

duty. Id. at § 22.01(b)(1). Reed contends that he was entitled to a lesser-included offense

instruction on assault because a rational jury could find from the evidence presented that Officer

Ryder and Officer Gonzales were not lawfully discharging their duties.

                                           DISCUSSION

       The Court of Criminal Appeals has referred to Section 9.53 of the Texas Penal Code as

the standard for determining whether a correctional facility officer who uses force against an

inmate is acting “lawfully.” See Hall, 158 S.W.3d at 475. Section 9.53 provides:

       An officer or employee of a correctional facility is justified in using force against
       a person in custody when and to the degree the officer or employee reasonably
       believes the force is necessary to maintain the security of the correctional facility,
       the safety or security of other persons in custody or employed by the correctional
       facility, or his own safety or security.

TEX. PENAL CODE ANN. § 9.53 (West 2003). A correctional facility officer is not acting lawfully

if he “tortures, sexually harasses, mutilates or otherwise violates the civil rights of prisoners

within his charge while on official duty . . . .” Hall, 158 S.W.3d at 474. The relevant inquiry is

not who initiates the use of force, but whether the correctional facility officer was justified in

initiating the use of force. See id. at 475–76. In Hall, the Court of Criminal Appeals held that if

an inmate refuses to obey a legitimate order, then a correctional facility officer who pushes an

inmate for the purpose of facilitating the inmate’s compliance with the order is acting lawfully

under Section 9.53. See id. at 476.



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       At trial, Officer Ryder and Officer Gonzales testified for the State that Reed was

violating a legitimate order. Officer Ryder testified that he had started escorting Reed from his

cell to the showers when he saw that Reed’s left hand was not bound by handcuffs. Officer

Ryder testified that when he saw that Reed’s left hand was not bound by handcuffs, he instructed

Reed to place both of his hands behind his back. He further testified that he saw Reed raise up

his right hand with the handcuff attached and begin “chuckling and laughing.” Officer Ryder

testified that Reed continued to laugh as he walked toward the shower. He then testified that

Officer Gonzales, who was standing between Reed’s cell and the shower, also instructed Reed

several times to put his hands behind his back; that Reed continued to walk toward the shower;

and that Reed started yelling at Officer Gonzales and grabbed her by her collar.          Officer

Gonzales also testified that she ordered Reed to put his hands behind his back three times, and

that he never complied. She further testified that Reed grabbed her by the collar and called her a

“bitch” and other names.

       Several inmates testified for the defense. Inmate Paul Reisch was in the cell in between

Reed’s cell and the shower. Reisch testified that he started watching the incident after Officer

Ryder had escorted Reed past his cell. He testified that he saw Officer Ryder yanking Reed by

the arm “for reasons I have no idea.” He testified that he then saw Officer Gonzales put her

hands on Reed’s chest and “push[] him back a little bit.” He testified that he believed that

Officer Gonzales was the first aggressor. Inmate Eric Lofland had a cell that was several cells

down from Reed’s cell further away from the shower. He testified that his view of what

occurred was limited, that he heard some “commotion,” and that he heard Officer Gonzales say

“come on and do it. Bring it on.” Inmate Kevin Jones, who had a cell on another row, testified

that he heard Officer Gonzales say “Do something,” several times, and that Reed said a couple



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times, “Get off me.” Inmate Robert Najar testified that he also heard Officer Gonzales say,

“Come on, bring it on.” Another inmate, Matthew Whitmire, testified that he saw Officer Ryder

pull Reed by the arm and that Reed told Officer Ryder, “You know . . . what are you tripping on?

You need to pay attention.” Finally, Whitmire testified that Reed said that he did not have any

handcuffs on, and Whitmire also believed that Officer Gonzales was the first aggressor.

       None of the defense witnesses contradicted the testimony of Officer Ryder or Officer

Gonzales that Reed was not properly restrained by the handcuffs. In addition, none of the

defense witnesses contradicted Officer Ryder’s and Officer Gonzales’ testimony that Reed was

ordered to put his hands behind his back. Finally, none testified that Reed complied with the

officers’ orders to put his hands behind his back.     Thus, because uncontroverted evidence

supported that Officer Ryder and Officer Gonzales ordered Reed to put his hands behind his

back and that Reed failed to comply with this order, Officer Reed and Officer Gonzales were

justified in using force against Reed to the degree they reasonably believed was “necessary to

maintain the security of the correctional facility.” See TEX. PENAL CODE ANN. § 9.53; Hall, 158

S.W.3d at 474. Even if the inmates’ testimony suggests that Officer Gonzales was the first

aggressor, or the first to push Reed, and that Officer Ryder had yanked Reed by the arm toward

the shower, this would not controvert the evidence that Reed failed to comply with a lawful order

of an officer. As a result, no rational jury could find from the inmates’ testimony that Officer

Ryder or Officer Gonzales were not lawfully discharging their duties. See Hall, 158 S.W.3d at

474; see also TEX. PENAL CODE ANN. § 9.53.

       Reed introduced evidence that Officer Gonzales and Officer Ryder were not complying

with standard policies and procedures because Officer Ryder: (1) was written up for failing to

double lock Reed’s handcuffs; (2) started the showering order for the inmates in reverse order;



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and (3) let Reed out of his cell without restraints. However, the Court in Hall explained that

“evidence of the violation of internal prison policies and procedures does not suffice to raise a

valid, rational conclusion that [a correctional facility officer] was criminally or tortiously abusing

his official office or duties at the time of the assault.” 158 S.W.3d at 476.

                                           CONCLUSION

       Because there was no evidence that Officer Ryder or Officer Gonzales was acting

unlawfully, Reed was not entitled to a lesser-included offense instruction in the jury charge. The

judgment of the trial court is therefore affirmed.

                                                     Rebecca Simmons, Justice

DO NOT PUBLISH




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