                                                                                           ACCEPTED
                                                                                      07-14-00175-CR
                                                                          SEVENTH COURT OF APPEALS
                                                                                   AMARILLO, TEXAS
                                                                                 2/19/2015 1:17:57 PM
                                                                                    Vivian Long, Clerk


                  IN THE COURT OF APPEALS FOR THE
                      SEVENTH DISTRICT OF TEXAS
                                                                  FILED IN
                                                           7th COURT OF APPEALS
ADAM CLEMENTSON,                    §                        AMARILLO, TEXAS
   APPELLANT                        §                      2/19/2015 1:17:57 PM
                                    §                           VIVIAN LONG
                                    §                              CLERK
V.                                  §          NO. 07-14-00175-CR
                                    §
THE STATE OF TEXAS,                 §
    APPELLEE                        §

     APPEALED FROM CAUSE NUMBER 1274535D IN THE 396TH
JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE
HONORABLE GEORGE GALLAGHER, PRESIDING.
                          §§§
                      STATE’S BRIEF
                          §§§

                                   SHAREN WILSON
                                   Criminal District Attorney
                                   Tarrant County, Texas

                                   DEBRA WINDSOR
                                   Assistant Criminal District Attorney
                                   Chief, Post-Conviction

The State requests oral argument   JOHN E. MESKUNAS
only if this Court grants oral     Assistant Criminal District Attorney
argument to Appellant.             Tim Curry Criminal Justice Center
                                   401 W. Belknap
                                   Fort Worth, Texas 76196-0201
                                   (817) 884-3109
                                   FAX (817) 884-1672
                                   State Bar No. 24055967
                                   COAAppellateAlerts@TarrantCountytx.gov

                                   WILLIAM VASSAR
                                   Assistant Criminal District Attorney
                                        TABLE OF CONTENTS

                                                                                                               PAGE

INDEX OF AUTHORITIES.................................................................................... iii

THE CASE IN BRIEF ...............................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

STATEMENT OF FACTS ........................................................................................3

OUTLINE OF STATE’S RESPONSES .................................................................... 5

STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR........................ 6

        ARGUMENT ...................................................................................................7

        I. The complained-of presumption was not mandatory .................................. 7

             A. Under Texas law, an appellate court construes any statutory
                presumption as permissive if the trial court incorporated the
                language of Section 2.05 of the Texas Penal Code in the
                jury charge ............................................................................................7

             B. The jury charge incorporated the language of Section 2.05
                of the Texas Penal Code ....................................................................... 9

        II. Witness testimony along with the video of the skirmish provided
            enough evidence to allow the jury to make the constitutionally-valid
            presumption that Appellant knew the uniformed officer he
            pushed into the window was a public servant ........................................11

        III. Alternatively, inclusion of the presumption was harmless ....................14

CONCLUSION AND PRAYER .............................................................................17
                                                                i
CERTIFICATE OF COMPLIANCE .......................................................................18

CERTIFICATE OF SERVICE ................................................................................18




                                                       ii
                                     INDEX OF AUTHORITIES

CASES                                                                                                  PAGE(S)

Alexander v. State,
   757 S.W.2d 95 (Tex. App.—Dallas 1988, pet. ref'd) .........................................14

Bellamy v. State,
   742 S.W.2d 677 (Tex. Crim. App. 1987) ....................................................passim

Fuentes v. State,
  991 S.W.2d 267 (Tex. Crim. App. 1999) ...........................................................14

Garrett v. State,
  220 S.W.3d 926 (Tex. Crim. App. 2007) ...........................................8, 11, 14, 15
Hutch v. State,
  922 S.W.2d 166 (Tex. Crim. App. 1996) ...........................................................15
Stevens v. State,
   234 S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet.)...................................13
Ulster County Court v. Allen,
   442 U.S. 140, 157, 99 S. Ct. 2213, 2224 (1979) ................................................11

Willis v. State,
   790 S.W.2d 307 (Tex. Crim. App. 1990) .................................................8, 10, 11



STATUTES

TEX. PENAL CODE § 2.05(d) (West 2011) ............................................................9, 14

TEX. PENAL CODE § 22.01(b)(1) (West 2011) ........................................................... 7

TEX. PENAL CODE § 22.01(d) ...............................................................................7, 14
TEX. R. APP. P. 39.1(b), (c), (d).................................................................................. 2
                                                             iii
                          IN THE COURT OF APPEALS FOR THE
                             SEVENTH DISTRICT OF TEXAS

ADAM CLEMENTSON,                                     §
   APPELLANT                                         §
                                                     §
                                                     §
V.                                                   §             NO. 07-14-00175-CR
                                                     §
THE STATE OF TEXAS,                                  §
     APPELLEE                                        §

     APPEALED FROM CAUSE NUMBER 1274535D IN THE 396TH
JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE
HONORABLE GEORGE GALLAGHER, PRESIDING.

TO THE HONORABLE COURT OF APPEALS:

                                       THE CASE IN BRIEF

THE CHARGE .............................................ASSAULT OF A PUBLIC SERVANT
                                                                         (CR 7; RR 3:6)

THE PLEA .......................................................................................... NOT GUILTY
                                                                                       (CR 126, 141; RR 3:6)

THE VERDICT (JURY) ............................................................................... GUILTY
                                                                     (CR 139, 141; RR 4:81-82)

THE PUNISHMENT (COURT) ............ 5 YEARS TDCJ, SUSPENDED 2 YEARS
                                                       (CR 141; RR 5:6)




                                                          1
                 STATEMENT REGARDING ORAL ARGUMENT

      Appellant complains the trial court reversibly erred by including a

mandatory presumption in its jury charge.          Because this issue has been

authoritatively decided by the Texas Court of Criminal Appeals, because the facts

and legal arguments are adequately presented in the briefs and record, and because

oral argument would not significantly aid the decisional process, the State requests

oral argument only if this Court grants oral argument to Appellant. See TEX. R.

APP. P. 39.1(b), (c), (d) (West 2010).




                                         2
                            STATEMENT OF FACTS

      Appellant’s lifelong friend, Gareth Reese, was visiting Fort Worth from

England. RR 4:13-14. During Reese’s visit, the men decided to go out on the

town and visit a few bars. RR 4:16. After several drinks, the men ended up at

“Pete’s Piano Bar.” RR 4:16, 25-27.

      Sergeant Boyd Latham and Officer Gary Hawley were working as security

at “Pete’s” that night. RR 3:83-84. Both officers were wearing their Fort Worth

Police Department uniforms. RR 3:35, 57, 68-69. Latham chatted with Appellant

as Appellant and Reese entered the bar. RR 3:66. Appellant and Reese went

upstairs and had more drinks. RR 4:26-27. Later, the manager of “Pete’s”, John

Guidry, summoned Latham and Hawley upstairs to deal with an aggressive patron;

it was Reese. RR 3:85-86.

      The officers conversed with Appellant and Reese briefly. RR 3:27, 4:28-29;

SX 1(part 2). Hawley decided Reese was intoxicated. RR 3:86. Hawley twice

instructed Reese to leave, but Reese refused. RR 3:86. Hawley took control of

Reese and escorted him toward the exit. RR 3:86-87; SX 1 (part 2). Latham

followed. SX 1(part 2).



                                      3
      As Hawley escorted Reese toward the exit, Reese jerked his arm free. RR

3:90. Because Reese tried to thwart Hawley’s attempt to remove him from the bar,

Hawley took Reese to the floor to arrest him for public intoxication. RR 3:90, 110,

112. Latham moved to assist with the arrest. RR 3:59. Appellant watched the

ensuing struggle and then attacked, pushing Latham into a window and injuring

him. RR 3:14-15, 66; SX 1 (parts 1, 2).




                                          4
                     OUTLINE OF STATE’S RESPONSE

State’s reply to Appellant’s sole point of error

      Appellant complains the trial court erred by including an unconstitutional

mandatory presumption in its charge to the jury. Appellant’s Brief 21.

Alternatively, Appellant complains the evidence does not rationally connect

Latham’s wearing of his police uniform to the presumption that Appellant knew

Latham was a public servant because no evidence exists showing Appellant

actually saw the uniform. Appellant’s Brief 15-17.

      When, as here, the jury charge incorporates the language of Section 2.05 of

the Texas Penal Code, any statutory presumption is permissive rather than

mandatory. And, the evidence rationally connected the predicate and presumptive

facts. Alternatively, the trial court’s inclusion of the presumption was harmless.




                                         5
      STATE’S REPLY TO APPELLANT’S SOLE POINT OF ERROR

Appellant’s contention

      Appellant complains the trial court erred by including an unconstitutional

mandatory presumption in its charge to the jury. Appellant’s Brief 21.

Alternatively, Appellant complains the evidence is insufficient to connect

Latham’s wearing of his police uniform to the presumption that Appellant knew

Latham was a public servant because no evidence exists showing Appellant

actually saw the uniform. Appellant’s Brief 15-17.

State’s reply

       When, as here, the jury charge incorporates the language of Section 2.05 of

the Texas Penal Code, any statutory presumption is permissive rather than

mandatory.      And, the evidence sufficed to allow the jury to make the

constitutionally-valid presumption that Appellant knew Latham, the uniformed

officer he pushed into the window, was a public servant. Alternatively, the trial

court’s inclusion of the presumption was harmless.




                                       6
      Argument

I.    The complained-of presumption was not mandatory.

      A. Under Texas law, an appellate court construes any statutory
         presumption as permissive if the trial court incorporated the
         language of Section 2.05 of the Texas Penal Code in the jury
         charge.

      The State charged Appellant with assault of a public servant. CR 7. Assault

is normally a misdemeanor; however, if an actor commits assault against a person

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

an official duty or in retaliation or on account of an exercise of official power or

performance of an official duty as a public servant, the assault is elevated to a third

degree felony. TEX. PENAL CODE § 22.01(b)(1) (West 2011). If the public servant

wore his uniform, the actor is presumed to have known the person assaulted was a

public servant. TEX. PENAL CODE 22.01(d).

      Appellant complains that Section 22.01 of the Texas Penal Code contains an

unconstitutional mandatory presumption; therefore, the trial court erred by

including the presumption in its charge to the jury.           Appellant’s Brief 21.

“Mandatory presumptions are unconstitutional because they relieve the State of the

burden of proving every element of the offense beyond a reasonable doubt.”


                                          7
Garrett v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007). A permissive

presumption, on the other hand, remains constitutional because it “allows, but does

not require, the trier of fact to infer the elemental fact or ultimate fact from the

predicate evidentiary fact or facts.” Id. at 931 n.5 (quoting Willis v. State, 790

S.W.2d 307, 310 (Tex. Crim. App. 1990)).

       All statutory presumptions in Texas are construed as permissive as long as

the jury charge adequately incorporated Section 2.05 of the Texas Penal Code.

Bellamy v. State, 742 S.W.2d 677, 682 (Tex. Crim. App. 1987). Texas Penal Code

Section 2.05 provides:

            if the existence of the presumed fact is submitted to the
            jury, the court shall charge the jury, in terms of the
            presumption and the specific element to which it applies,
            as follows:

                   (A) that the facts giving rise to the presumption
                   must be proven beyond a reasonable doubt;

                   (B) that if such facts are proven beyond a
                   reasonable doubt the jury may find that the
                   element of the offense sought to be presumed
                   exists, but it is not bound to so find;

                   (C) that even though the jury may find the
                   existence of such element, the state must prove



                                        8
                   beyond a reasonable doubt each of the other
                   elements of the offense charged; and

                   (D) if the jury has a reasonable doubt as to the
                   existence of a fact or facts giving rise to the
                   presumption, the presumption fails and the jury
                   shall not consider the presumption for any purpose.
TEX. PENAL CODE § 2.05 (West 2011).

      B.   The jury charge incorporated the language of Section 2.05 of the
           Texas Penal Code.

      The charge contained the presumption found in Section 22.01 of the Texas

Penal Code. CR 130. That is, the jury was instructed that Appellant “is presumed

to have known the person assaulted was a public servant if he was wearing a

distinctive uniform or badge indicating his employment as a public servant.” In

the next paragraph, the jury was instructed relative to this presumption as follows:

             (A) that the facts giving rise to the presumption must
             be proven beyond a reasonable doubt;

             (B) that if such facts are proven beyond a reasonable
             doubt the jury may find that the element of the offense
             sought to be presumed exists, but it is not bound to so
             find;

             (C) that even though the jury may find the existence of
             such element, the state must prove beyond a reasonable




                                         9
             doubt each of the other elements of the offense charged;
             and

             (D) if the jury has a reasonable doubt as to the
             existence of a fact or facts giving rise to the presumption,
             the presumption fails and the jury shall not consider the
             presumption for any purpose
CR 130-31.

      Appellant concedes the jury charge incorporated the language of Section

2.05 of the Texas Penal Code. Appellant’s Brief 13; compare TEX. PENAL CODE

§2.05 and CR 130-31(trial court’s charge to the jury). However, Appellant argues

that the use of the phrase “is presumed” makes the presumption mandatory

regardless of the incorporation of Section 2.05. The Texas Court of Criminal

Appeals addressed this very issue in Willis v. State, 790 S.W.2d 307, 310-12 (Tex.

Crim. App. 1990).

      In Willis, the appellant argued, as Appellant argues here, that regardless of

the incorporation of Section 2.05, the presumption in the jury charge was

unconstitutionally mandatory. See Willis, 790 S.W.2d at 310-11. In overruling the

appellant’s complaint, the Texas Court of Criminal Appeals held that

“notwithstanding the improper introductory language in the charge under

consideration, [because of the incorporation of the language of Section 2.05] a


                                        10
reasonable juror would understand that he or she was free to accept or reject the

presumption making it a permissive presumption.” Id. at 311.

      The charge in the present case incorporated the same language making the

presumption permissive as that in Willis. Compare Willis, 790 S.W.2d at 311 and

CR 130-31. Therefore, the presumption in this case is permissive, and the trial

court did not err by including the permissive instruction in its charge to the jury.

See   Garrett,   220   S.W.3d    at   931    n.5   (permissive      presumptions   not

unconstitutional); Bellamy, 742 S.W.2d at 682 (presumption is deemed permissive

when jury charge incorporates language of Texas Penal Code Section 2.05).

Therefore, this Court should overrule Appellant’s point of error.

II.   Witness testimony along with the video of the skirmish provided enough
      evidence to allow the jury to make the constitutionally-valid
      presumption that Appellant knew the uniformed officer he pushed into
      the window was a public servant.

      In Ulster County Court v. Allen, the United States Supreme Court

determined that when reviewing a permissive presumption the party challenging

the constitutional validity of the presumption must prove that it is invalid “as

applied to him.” 442 U.S. 140, 157, 99 S. Ct. 2213, 2224 (1979). An appellate

court judges the validity of the application of a permissive presumption by


                                        11
examining the facts of the particular case and determining whether it can be said

with substantial assurance that a rational trier of fact could make the connection

permitted by the presumption. Bellamy, 742 S.W.2d at 682–83. This means a jury

cannot simply make a permissive presumption because of the existence of the

predicate fact; there must be a rational connection between the predicate fact and

the presumptive fact. Id.

      Appellant complains that the jury’s application of the permissive

presumption was not constitutionally valid because conditions in the bar (lighting,

noise, distractions, etc.) made it possible that he did not see the police uniforms;

therefore, there was no rational connection between Latham’s wearing of his

uniform and the presumption that Appellant knew Latham worked as a public

servant.   Appellant’s Brief 15-17.    The jury received the following evidence

connecting the predicate and presumptive facts:

      • Latham wore his police uniform while working at the bar that night. RR
        3:35, 57, 68-69.

      • Latham sat at the entrance of the bar. RR 3:84.

      • Appellant spoke with Latham when Appellant entered the bar that night.
        RR 3:66.



                                       12
      • Upstairs, Latham and Hawley spoke with Appellant and Reese. RR 3:37
        4:28-29; SX 1 (part 1).

      • Latham spoke with Appellant for nearly a minute before Hawley escorted
        Reese toward the exit. RR 3:37 4:28-29; SX 1 (part 1).

      • Bar manager, John Guidry, testified that Appellant watched the
        altercation develop between Reese and the uniformed police officers
        before attacking Latham. RR 3:13-14.

      • On the video, Appellant watches Hawley and Latham escorting Reese
        toward the exit and attacks Latham approximately seven seconds after
        speaking with Latham. SX 1 (part 2: 1:08-:15).

      • On the video, Appellant appears to be looking directly at Latham when
        he attacks him. SX 1 (part 1, 2).

      • Appellant pushed Latham into the window. RR 3:19, 41; SX 1 (part 1).

      • On the video, Appellant’s attack on Latham took approximately six
        seconds. See SX 1(part 2: 1:15-:21).

      • During the attack, bar employee, Kelly Davis, and other employees tried,
        unsuccessfully, to pull Appellant off of Latham. RR 3:19, 38, 41; SX 1
        (part 1).

      • In the video, Appellant is facing Latham while pushing him. SX 1 (parts
        1, 2).

And, though Appellant denied knowing Latham’s status as a police officer, the jury

was free to disbelieve him. RR 4:21-22, 28-29, 32-34, see Stevens v. State, 234

S.W.3d 748, 780 (Tex. App.—Fort Worth 2007, no pet.) (jury, as sole judge of


                                      13
credibility of witnesses, is free to believe or disbelieve all or any part of witness’

testimony); Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (when

faced with conflicting evidence appellate court presumes jury, as sole trier of fact,

resolved any conflict in favor of the prosecution).

          Based on the record as a whole, it can be said with substantial assurance that

the predicate and presumptive facts are rationally connected. As such, the jury’s

permissive presumption was constitutionally valid as applied to the facts of this

case, and this Court should overrule Appellant’s complaints.          See TEX. PENAL

CODE §§ 2.05, 22.01(d); Bellamy, 742 S.W.2d at 682–83 (permissive presumption

constitutionally valid when some evidence connects predicate and presumptive

facts).

III.      Alternatively, inclusion of the presumption was harmless.

          Error relating to a mandatory presumption in a jury charge is subject to

harmless error review. Garrett, 220 S.W.3d at 931. When inquiring whether a

mandatory presumption caused harm where the error was preserved, the relevant

inquiry is whether a reasonable juror “could have given the presumption

conclusive or persuasion-shifting effect.” Alexander v. State, 757 S.W.2d 95, 100



                                           14
(Tex. App.—Dallas 1988, pet. ref'd).        Should this court find the trial court

committed error in its jury charge by including an unconstitutionally-mandatory

instruction, the error was harmless.

      Immediately following the complained–of language, the jury charge

included language instructing the jury that they were allowed (rather than required)

to make the presumption if certain circumstances existed. CR 130-31 (“[I]f such

facts are proven beyond a reasonable doubt the jury may find that the element of

the offense sought to be presumed exists, but it is not bound to so find.”); see

Garrett, 220 S.W.3d at 930 (Section 2.05 instruction “effectively converts a

mandatory presumption into a permissive presumption”).            The charge also

informed the jury that even if these circumstances existed, they were free to

disregard the presumption should they so choose. Id. The record does not contain

any evidence that the jury did not follow this instruction. See Hutch v. State, 922

S.W.2d 166, 170 (Tex. Crim. App. 1996) (appellate court presumes jury

understood and followed the court’s charge absent evidence to the contrary).

Further, the evidence of Appellant’s guilt (testimony and video showing Latham

was in his Fort Worth Police Department uniform and Appellant spoke to Latham



                                       15
seconds before attacking him) was overwhelming. See RR 3:13-14, 35, 37, 57, 66,

68-69; 4:28-29; SX1.

         Because the charge informed the jury it was free to ignore the presumption,

and because the State presented overwhelming evidence of Appellant’s guilt, the

jury would have found Appellant guilty beyond a reasonable doubt without the

complained-of presumption. As such, any error in the inclusion of the complained-

of presumption was harmless, and this Court should overrule Appellant’s point of

error.




                                         16
                         CONCLUSION AND PRAYER

      Because the jury charge incorporated the language of Section 2.05 of the

Texas Penal Code, any statutory presumption is permissive rather than mandatory.

Bellamy, 742 S.W.2d at 682. Further, because the record evidence sufficed to

allow the jury to rationally connect the predicate and presumptive facts, the jury’s

application of the presumption was constitutionally valid.          Id. at 682–83.

Alternatively, any error in the inclusion of the complained-of instruction was

harmless.   Accordingly, the State prays this Court will overrule Appellant’s

complaints and affirm the judgment of the trial court.

                                       Respectfully submitted,

                                       SHAREN WILSON
                                       Criminal District Attorney
                                       Tarrant County, Texas

                                       DEBRA WINDSOR
                                       Assistant Criminal District Attorney
                                       Chief of Post-Conviction

                                        /s/ John E. Meskunas
                                       JOHN E. MESKUNAS
                                       Assistant Criminal District Attorney
                                       Tim Curry Criminal Justice Center
                                       401 W. Belknap
                                       Fort Worth, Texas 76196-0201


                                        17
                                     (817) 884-3109
                                     FAX (817) 884-1672
                                     State Bar No. 24055967
                                     COAAppellateAlerts@TarrantCountytx.gov

                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEX. R. APP. P. 9.4(i) because it contains 2,671 words,

excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1), as computed by the

computer software used to prepare the document.

                                      /s/ John E. Meskunas
                                     JOHN E. MESKUNAS

                        CERTIFICATE OF SERVICE

      A true copy of the State’s brief has been electronically served on opposing

counsel, the Hon. Wm. Reagan Wynn, rwynn@kearneywynn.com, Kearney/Wynn,

One Museum Place, 3100 W. 7th St., Ste. 420, Fort Worth, TX 76107, on this, the

19th day of February, 2015.

                                      /s/ John E. Meskunas
                                     JOHN E. MESKUNAS


                                       18
