                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-089-CR


KERRY BOLLMAN                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      A jury convicted Appellant Kerry Bollman of assault on a public servant

and assessed his punishment at ten years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and a fine of $10,000.

The trial court sentenced him accordingly. In two points, Appellant argues that

the evidence at trial was insufficient to support the jury’s rejection of his




      1
          … See Tex. R. App. P. 47.4.
involuntary intoxication defense and that the trial court reversibly erred by

failing to instruct the jury in the punishment charge that it could not consider

unadjudicated extraneous offenses unless they were proven beyond a

reasonable doubt. Because we hold that the evidence is factually sufficient to

support the jury’s verdict and that the trial court did not reversibly err, we

affirm the trial court’s judgment.

                                      Facts

      On the morning of August 25, 2007, Appellant was an inmate of the

Denton County Jail. He slipped, fell, and injured his left wrist and the ribs on

the left side of his body. A guard arrived to assist Appellant, and Appellant was

given an injection of Toradol, a non-narcotic, nonsteroidal anti-inflammatory

drug for musculoskeletal pain. Shortly after the injection was administered, at

about 11:30 a.m., Appellant was transferred from the jail to the hospital.

      Appellant testified that after he arrived at the hospital, the medical staff

gave him some kind of pill for his pain. He did not recall whether he was given

one pill or more than one pill.

      Officer Kerner, the Denton County detention officer who transported

Appellant to the emergency room that day, testified that he was with Appellant

until shift change at 3:00 p.m.      Officer Kerner said that he and Appellant

engaged in small talk while hospital staff treated Appellant and that several

                                        2
times during the conversations, Appellant asked him what time his shift change

would be. Officer Kerner testified that Appellant asked him five or six times if

Officer Welsh would relieve Officer Kerner.     (Officer Kerner is much larger

physically than Officer Welsh.) Officer Kerner also testified that he was unable

to tell Appellant who would replace him at shift change. During the time that

Appellant was with Officer Kerner, Appellant did not act crazy or silly.

      Officer Welsh did, indeed, replace Officer Kerner at shift change. Officer

Welsh arrived at approximately 2:45 p.m. to relieve Officer Kerner at 3:00 p.m.

Officer Welsh testified that he and Appellant had a conversation and that

Appellant was acting in “[n]ormal, everyday-person demeanor.” Officer Welsh

and Appellant waited about an hour for Appellant to be discharged. Because

Appellant was in pain when he was discharged, Officer Welsh physically

assisted him into the van in a wheelchair.     As Officer Welsh was securing

Appellant’s seatbelt across his chest, Appellant managed to grab Officer Welsh

in a chokehold. The men began to struggle, and they jumped out of the van

and onto the ground. Officer Welsh was in pain as they rolled on the ground.

Officer Welsh testified that he was nearly unconscious when a civilian arrived

and began trying to pull Appellant off of Officer Welsh. Officer Welsh was able

to get loose and place Appellant in a leg lock. Officer Welsh testified that




                                       3
Appellant was not acting crazy at the time he began to put Appellant into the

van and that Appellant had actually asked for Officer Welsh’s help.

      Two hospital security guards arrived and helped Officer Welsh handcuff

Appellant. After Appellant was handcuffed, Officer Welsh called for backup,

and Corporal Pena arrived approximately five minutes later. While Officer Welsh

waited for a patrol officer, Appellant sat silently in the parking lot.

      Hospital security guards David Bowe and Don Smith came to the aid of

Officer Welsh.    Bowe testified that he had been monitoring the security

cameras when he saw Appellant being pushed in the wheelchair by Officer

Welsh. When he next saw them, Appellant and Officer Welsh were on the

ground wrestling. Bowe and Smith ran to Officer Welsh’s aid. After Appellant

was handcuffed, he was compliant and not acting in an unusual manner. After

Bowe left the scene, he reviewed the tape of the incident. He testified that,

while watching the tape, he saw Appellant look back over his left shoulder as

he was being wheeled to the van.

      Smith testified that he handcuffed Appellant after he arrived on the

scene. He also testified that Appellant complied with his requests while being

handcuffed. In Smith's opinion, Appellant’s demeanor was “quiet and calm,”

and he was not acting in an unusual manner. Albert Freeland, the civilian who




                                        4
had first assisted Officer Welsh, testified that Appellant cursed at him and

stated, “This ain’t any of your business.”

      Corporal Pena of the Denton County Sheriff’s Office, the officer who

transported Appellant back to the jail, testified that he did not notice anything

that indicated Appellant needed mental health treatment. He testified that there

was no conversation between Appellant and himself and that Appellant did not

exhibit any unusual behavior, although he did testify that Appellant would not

respond to him and appeared to have shut down.

      Appellant called as defense witnesses his mother and his two neighbors.

Appellant also testified on his own behalf. He stated that he remembered the

events in the hospital and remembered starting toward the van. He testified

that he could not recall if he had been given more than one pill. He denied

recalling any conversations with Officer Kerner or attacking Officer Welsh. He

did recall hitting the ground, but he did not remember Freeland’s pulling him off

of Officer Welsh or having any conversation with Freeland. Appellant testified

that he did not intentionally or purposely attack Officer Welsh and that he only

vaguely recalled riding back to the jail with Corporal Pena.

      Appellant related an incident in Denton County Jail that occurred on May

29, 2007, almost three months before the incident with which he was charged.

When he had originally booked into jail on May 25, he experienced pain. He

                                       5
testified that he was given pain medication after having turned it down several

times. On other occasions, however, he accepted the pain medication.

      Appellant called Michael Clark, a sergeant assigned to booking for the

sheriff’s office, as a witness. Clark testified that on May 29, 2007, Appellant

was in his cell naked and scratching himself because he believed he had bugs

crawling on him. Appellant then grabbed his own arm and pulled it really hard.

Clark, with the assistance of two other officers, subdued Appellant and

handcuffed him. Appellant screamed that they were stabbing him with needles,

and he resisted the handcuffs, so Clark had him placed in a restraint chair.

Appellant denied that he was under the influence of drugs or alcohol. At some

point, Clark ordered two officers to release Appellant from the restraint chair.

Officer Clark went into the cell and ordered Appellant to kneel so that he and

the other two officers could safely exit the cell. Appellant refused, jerked away

from one officer, got loose from the other officer, and began screaming. Clark

pulled out his taser and ordered Appellant to the ground. Appellant refused,

screamed at Clark to tase him, and then began advancing toward Clark. Clark

shot Appellant with the taser, and Appellant fell to the ground. Appellant had

to be placed in the restraint chair again.

      Appellant’s mother, Claudia Bollman, and Madalyn and Larry Edens,

Appellant’s neighbors, also testified on Appellant’s behalf.      Mrs. Bollman

                                        6
testified that she had seen Appellant become aggressive or act “absolutely silly,

stupid, crying, one or the other” when he had adverse reactions to pain

medications. Mr. and Mrs. Edens testified that when Appellant is given pain

killers or anesthetics, he can become very violent or argumentative, almost

paranoid.

      Michael Tribble, a paramedic working at the health facility of the Denton

County Jail, testified that Appellant’s medical records showed that on May 26,

2007, Appellant was prescribed one or two Darvocet pills every six hours as

needed. He also testified that the Darvocet would not have been dispensed

without Appellant’s request. He also testified that Appellant was prescribed a

regimen of Ativan for treatment of alcohol withdrawal and an injection of

Thiamin on the same date.

      On May 29, 2007, Appellant had been placed in a safety cell because he

had become unruly, yelling and banging on the wall. Appellant would not stop

this behavior when approached by officers. Tribble testified that the records

also indicated that earlier that morning, Appellant had been moved to a safety

cell for hallucinations and placed in a restraint chair after having been tased.




                                       7
                    Evidence Sufficient to Reject Appellant’s
                        Involuntary Intoxication Defense

      In his first point, Appellant contests the sufficiency of the evidence to

support the jury’s rejection of his involuntary intoxication defense.2 Insanity is

an affirmative defense to prosecution.3 Involuntary intoxication that causes

insanity is included within the affirmative defense of insanity. 4 The defendant

has the burden of proving an affirmative defense by a preponderance of the

evidence. 5

      As Judge Cochran explained in her thoughtful dissent in Watson v.

State,6 discussing the development of factual sufficiency review in criminal

cases,

           Review for legal sufficiency under the Jackson “beyond a
      reasonable doubt” standard is required for every element that



      2
       … Appellant does not explicitly specify that he challenges only the
factual sufficiency of evidence supporting the jury’s rejection of involuntary
intoxication, but his argument and authorities, including his statement of the
standard of review, make that fact clear. We therefore likewise address only
factual sufficiency.
      3
          … Tex. Penal Code Ann. § 8.01 (Vernon 2003).
      4
      … See Mendenhall v. State, 77 S.W.3d 815, 817–18 (Tex. Crim. App.
2002); Torres v. State, 585 S.W.2d 746, 748–50 (Tex. Crim. App. 1979).
      5
          … Tex. Penal Code Ann. § 2.04(d).
      6
       … 204 S.W.3d 404, 421 (Tex. Crim. App. 2006) (Cochran, J.,
dissenting).

                                        8
      supports a conviction, but a sufficiency-of-the-evidence review
      under civil standards is appropriate when reviewing affirmative
      defenses in which the defendant bears a burden of “preponderance
      of the evidence.” In Meraz, this Court held that the “factual
      conclusivity clause” of the Texas Constitution applies when the
      defendant bears the burden of proof by a preponderance of the
      evidence.

              And this Court followed Meraz in Bigby v. State, by reviewing
      the sufficiency of the evidence that supported the jury’s rejection
      of the defendant’s affirmative defense of insanity in a capital
      murder trial. In Bigby, as in Meraz, the burden of proof was on the
      defendant to establish his defense by a preponderance of the
      evidence. In that context, use of the civil standards adopted by the
      Texas Supreme Court is entirely appropriate. In these cases, Texas
      courts have the power and authority to conduct a sufficiency
      review of the evidence under controlling supreme court precedent
      because: (1) both the burden of production and persuasion is on
      the defendant; and (2) that burden is the civil standard of proof “by
      a preponderance of the evidence.” Both Meraz and Bigby are in
      line with the historical and jurisprudential underpinning of Texas
      civil law and the Texas Constitution. We followed our brethren on
      the Texas Supreme Court in applying the factual conclusivity clause
      to those “questions of fact” for which the proponent bears the
      burden of proof by a preponderance of the evidence. And we
      should continue to follow that court’s development of
      sufficiency-of-the-evidence review when the proponent bears the
      burden of proof by a preponderance of the evidence. 7

      Therefore, upon review of this point, we must consider all the evidence

relevant to the issue of insanity and determine whether the verdict is so against

the great weight and preponderance of the evidence as to be manifestly unjust. 8



      7
          … Id. at 436–37 (citations and footnotes omitted).
      8
          … Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

                                        9
In our review, we may not usurp the function of the trier of fact by substituting

our judgment in the place of its verdict.9 We may sustain this point only if,

after detailing the relevant evidence and stating in what regard the contrary

evidence greatly outweighs the evidence supporting the verdict, we also clearly

state why the verdict is so against the great weight of the evidence as to be

manifestly unjust, why it shocks the conscience, or why it clearly demonstrates

bias.10

      Appellant did not recall his conversation with Officer Kerner or the assault

on Officer Welsh. He, his mother, and his neighbors testified only that he had

a bad reaction to pain medication. Nowhere does Appellant direct us to any

evidence that, as a result of intoxication caused by taking pain medication, he

did not know that his conduct was wrong.

      To the extent that Appellant’s insanity defense is implicit in the facts

recounted, after examining the entire record, we cannot say the judgment is so

against the great weight and preponderance of the evidence as to be manifestly

unjust. 11 There was evidence that Appellant planned the assault in his repeated


      9
          … See id. at 154.
      10
       … Id. at 154 n.2; see Clewis v. State, 922 S.W.2d 126, 135–36 (Tex.
Crim. App. 1996).
      11
        … See Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994),
cert. denied, 515 U.S. 1162 (1995).

                                       10
questioning of Officer Kerner regarding the time of shift change and whether

Officer Welsh, the smaller deputy, would be replacing him. There was evidence

that Appellant glanced over his shoulder before attacking Officer Welsh. There

was evidence that Appellant discouraged Freeland from coming to Officer

Welsh’s aid. The only evidence of insanity was that in the past Appellant had

had a bad reaction to pain medication that caused him to be silly or unpleasant

and his own testimony regarding memory loss.

      No expert testified either on behalf of Appellant or on behalf of the State.

The only evidence was lay witness testimony. As the State argues, quoting

Bigby, “Ultimately the issue of insanity at the time of the offense excusing

criminal responsibility lies in the province of the jury, not only as to the

credibility of the witnesses and the weight of the evidence, but also as to the

limits of the defense itself.” 1 2 As the State points out, the trier of fact may

consider evidence such as the defendant’s demeanor both before and after the

commission of the offense, as well as any attempts to evade police or to

conceal incriminating evidence. 13 The trier of fact may consider expressions of




      12
           … Id. at 878.
      13
        … See Torres v. State, 976 S.W.2d 345, 347 (Tex. App.—Corpus
Christi 1998, no pet.).

                                       11
regret or fear of the consequences of the defendant’s actions, other possible

motives for the offense, and other explanations for a defendant’s behavior. 14

      The jury could have found the evidence defeating Appellant’s insanity

defense more credible and of greater weight than the evidence of Appellant’s

“bad reaction” to pain medication. We note that the jury heard evidence that

directly after the attack, Appellant was taken back to the jail, not to a mental

health unit. The jury also heard evidence that in the summer of 2007, while

Appellant was speaking over the jail telephone, he told friends and family that

he would not be in jail for very long and that the “system has loopholes.”

      As for the evidence of the May 2007 episode in which Appellant was

found naked in his cell and screaming about bugs crawling on him and claiming

the officers were stabbing him with needles, the jury could have believed, and

the record supports, that the episode occurred because Appellant was suffering

from alcohol withdrawal. Additionally, Appellant offered evidence that he was

well aware of his “bad reaction” to pain medication and that his mother and

neighbors were also aware of his response to pain medication. He argues that

his intoxication was involuntary, yet Defendant’s Exhibit Three reflects that on

August 4, 2007, a few weeks before the incident with which he was charged,




      14
           … Id. at 347–48.

                                      12
Appellant made the following request, “The intensity of my headaches I [sic]

very bad. I need to see a doctor and am in need of pain medication please.”

      Voluntary intoxication is not a defense to the commission of a criminal

offense,15 although it may be considered by the jury in mitigation of

punishment.16 Appellant’s burden was to prove by a preponderance of the

evidence that the intoxication was involuntary and that the intoxication was to

such a degree that it rendered him legally insane. 17 We hold that there was

some evidence that intoxication was involuntary, but the evidence that

Appellant requested pain medication not long before going to the hospital and

that he voluntarily took the pain medication when it was offered cuts against

the alleged involuntariness of the intoxication.

      Finally, Appellant directs us to no evidence in the record that he was

unaware of the wrongfulness of his conduct, but the record does contain

evidence that he was aware of the wrongfulness of his conduct, that he

planned the conduct, and that it was not a spontaneous outburst.18




      15
           … Tex. Penal Code Ann. § 8.04(a) (Vernon 2003).
      16
       … See id. § 8.04(b); Tucker v. State, 771 S.W.2d 523, 533 (Tex. Crim.
App. 1988), cert. denied, 492 U.S. 912 (1989).
      17
           … See Tex. Penal Code Ann. §§ 2.04(d), 8.01(a), 8.04(b).
      18
           … See id. § 8.01(a).

                                       13
      Considering the entire record, and applying the appropriate standard of

review, we hold that the verdict is not so against the great weight and

preponderance of the evidence of insanity as to be manifestly unjust.         We

overrule Appellant’s first point.

                     Absence of Jury Instruction Harmless

      In his second point, Appellant argues that the trial court was obligated to

instruct the jury sua sponte in the punishment charge that the jury could not

consider unadjudicated extraneous offenses unless it believed beyond a

reasonable doubt that Appellant had committed them. Appellant points out that

the State proved that he had prior convictions for arson, assault-family violence,

and resisting arrest.   Additionally, the State offered evidence to prove two

incidents of aggravated assault on a public servant and one incident of assault

on a public servant. The trial court did not instruct the jury that it could not

consider those offenses without first finding that the State had met its burden

of proving each of the extraneous offenses beyond a reasonable doubt.

Appellant did not object to the charge and did not request the instruction.

      Appellant had been previously convicted of arson, assault-family violence,

and resisting arrest. Consequently, no limiting instruction was required because

those offenses had already been subjected to judicial testing; that is, because




                                       14
Appellant had already been convicted of those offenses, he had already been

found guilty of those offenses beyond a reasonable doubt.19

      We next address whether such an article 37.07 instruction was required

in regard to the unadjudicated offenses of aggravated assault on a public

servant and assault on a public servant. Appellant does not provide us any

details concerning the unadjudicated offenses that the State proved. Appellant

merely cites us to thirty-three pages in the record. In the interest of justice we

have examined those pages. Appellant appears to complain about evidence

that he struck a police officer and that he brandished a knife in an aggressive

manner when police officers responded to a domestic disturbance call.

      Appellant relies on Huizar v. State to argue that a charge instructing the

jury in accordance with article 37.07 of the code of criminal procedure is

mandatory even if not requested.20 At the punishment stage, evidence may be

offered as to any matter the court deems relevant to sentencing, including

evidence of an extraneous crime or bad act that is shown beyond a reasonable

doubt by evidence to have been committed by the defendant or for which he




      19
           … See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004).
      20
           … 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).

                                       15
could be held criminally responsible.21       When the court admits evidence of

extraneous misconduct by the accused, the court must instruct the jury that it

cannot consider this evidence for any purpose unless it is satisfied beyond a

reasonable doubt that these prior acts are attributable to the defendant.22 The

failure to give this instruction is charge error even in the absence of a request

or objection by the defendant.23

      Appellant did not request the instruction and did not object to the jury

charge for its failure to contain an article 37.07 instruction. We, therefore, hold

that the trial court erred by failing to include the article 37.07 instruction in the

jury charge, but, under the Almanza construct, we must determine whether

Appellant suffered egregious harm as a result of the trial court’s error.24

Egregious harm consists of errors affecting the very basis of the case or that

deprive the defendant of a valuable right, vitally affect a defensive theory, or




      21
           … Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.
2008).
      22
           … Huizar, 12 S.W.3d at 484.
      23
           … Id.
      24
        … See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(op. on reh’g); see also Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App.
2002).

                                         16
make the case for conviction or punishment clearly and significantly more

persuasive. 25

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial

as a whole.” 26 The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused.27 Egregious harm is a difficult standard to

prove and must be determined on a case-by-case basis.28

      Appellant does not explain why the admission of these offenses was

particularly harmful, except to say that they were “the same nature as the one

of which the jury had already convicted [A]ppellant.” We have considered the

record in its entirety. It contains evidence of Appellant’s past convictions, his

violent and manipulative conduct in jail, and his commission of the offense now

before this court. The evidence also reflects Appellant’s statement that he




      25
           … Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).
      26
      … Almanza, 686 S.W.2d at 171; see generally Hutch v. State, 922
S.W.2d 166,172–74.
      27
           … Almanza, 686 S.W.2d at 174.
      28
           … Ellison, 86 S.W.3d at 227; Hutch, 922 S.W.2d at 171.

                                       17
would be out of jail because of the loopholes in the system and the fact that he

planned the attack on Officer Welsh, choosing to assault him rather than the

larger officer.

      The record, exclusive of the unadjudicated acts of misconduct presented

at the punishment phase of the trial, amply justifies the jury’s sentence. When

Appellant choked Officer Welsh, there was evidence that the officer turned

blue, was losing consciousness, and was afraid he was going to die. As the

State points out, Appellant’s defensive theory was not that he did not do it, but

that he did it because of a bad reaction to painkillers. The jury apparently did

not believe Appellant’s defensive theory. The prosecutor compared the range

of punishment for assault of a public servant with the range of punishment for

aggravated assault of a public servant and argued to the jury that the bodily

injury that Appellant inflicted on Officer Welsh in this case was “about as far

as you can go before getting to serious bodily injury.”

      Applying the appropriate standard of review, we hold that the trial court’s

error in failing to provide the article 37.07 instruction in the jury charge did not

egregiously harm Appellant. We overrule his second point.




                                        18
                                Conclusion

     Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MEIER, JJ.

LIVINGSTON, J. filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 14, 2009




                                    19
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-089-CR


KERRY BOLLMAN                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

                                    ------------

            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                CONCURRING MEMORANDUM OPINION 1

                                    ------------

      I agree that appellant’s two points should be overruled and that his

conviction should be affirmed. However, I write separately because I disagree

with the majority’s use of a dissenting opinion from the court of criminal

appeals as its primary basis for explaining the factual sufficiency standard

related to the jury’s implicit rejection of appellant’s affirmative defense.




      1
          … See Tex. R. App. P. 47.4.
      As the majority correctly indicates, insanity because of involuntary

intoxication is an affirmative defense that a defendant must prove by a

preponderance of the evidence. Majority op. at 8; Mendenhall v. State, 77

S.W.3d 815, 818 (Tex. Crim. App. 2002); see Tex. Penal Code Ann. § 2.04(d)

(Vernon 2003). We determine the factual sufficiency of all of the evidence

related to the jury’s rejection of an affirmative defense by considering whether

that rejection is so against the great weight and preponderance of the evidence

as to be manifestly unjust. Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim.

App. 1994), cert. denied, 515 U.S. 1162 (1995).

      Although the majority’s opinion cites the standard as stated by the court

of criminal appeals in Bigby, by which we are bound, it principally relies on a

dissenting opinion from the same court, by which we are not bound, to explain

that standard. Majority op. at 8–11 (citing Watson v. State, 204 S.W.3d 404,

421 (Tex. Crim. App. 2006) (Cochran, J., dissenting)); see Sierra v. State, 157

S.W.3d 52, 60 (Tex. App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 (Tex.

Crim. App. 2007); see also State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim.

App. 1997) (indicating that even a plurality opinion from the court of criminal

appeals is not binding precedent). For that reason, I respectfully concur.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

DELIVERED: May 14, 2009


                                       2
