                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-12-00773-CR

                                             Brian JONES,
                                               Appellant

                                                 v.
                                            The STATE of
                                         The STATE of Texas,
                                               Appellee

                      From the 379th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2011CR7615
                               Honorable Ron Rangel, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 4, 2013

AFFIRMED

           Brian Jones appeals his conviction for assault on a public servant. He brings two issues on

appeal: (1) legal insufficiency of the evidence and (2) ineffective assistance of counsel. We affirm.

                                                 FACTS

           Jones was charged with assault on a public servant. At trial, Park Police Officer David

Kirkpatrick, testified that he was in uniform and on patrol on June 2, 2011, when he was flagged

down by a person reporting a disturbance at a gas station. The person who flagged Officer

Kirkpatrick down told him that Jones had displayed a knife and tried to sell him drugs. When
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Officer Kirkpatrick arrived at the gas station, he saw Jones and another man having an obvious

verbal disagreement. Because he had been told that Jones had a knife, Officer Kirkpatrick

handcuffed Jones and patted him down, finding a butterfly knife in Jones’s pocket. Officer

Kirkpatrick placed Jones under arrest. As Officer Kirkpatrick began to place Jones into the back

of the patrol car, Jones “leaned over and, with his right shoulder, hit [Officer Kirkpatrick] in the

left rib cage and threw [Officer Kirkpatrick] up against the car – up on the hood. And in the same

process, with his hands behind his back, turned and hit [Officer Kirkpatrick] with his hands on

[Officer Kirkpatrick’s] back; and from that point, he began to run away.” Officer Kirkpatrick

testified he felt a sharp pain when Jones hit him in the ribs, and the pain lasted for several days.

Officer Kirkpatrick and another officer, Officer Glen Salazar, then chased Jones and regained

control of him.

       On cross-examination, Officer Kirkpatrick testified that he was wearing a Kevlar ballistic

vest at the time Jones hit him. And, although his ribs hurt, he did not go to the doctor.

       Officer Salazar, who helped Officer Kirkpatrick apprehend Jones, testified that he had

previously been assaulted while wearing a Kevlar vest and that he had felt pain through the vest.

                             LEGAL SUFFICIENCY OF THE EVIDENCE

       In reviewing a challenge to the legal sufficiency of the evidence, we examine all the

evidence in the light most favorable to the verdict and determine whether a rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011),

cert. denied, 132 S. Ct. 1763 (2012). The court of criminal appeals has explained that this standard

“recognizes the trier of fact’s role as the sole judge of the weight and credibility of the evidence

after drawing reasonable inferences from the evidence.” Adames, 353 S.W.3d at 860. Therefore,

on appellate review, we determine whether based on “cumulative force of all the evidence” the
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necessary inferences made by the trier of fact are reasonable. Id. We conduct this constitutional

review by measuring the evidentiary sufficiency with “explicit reference to the substantive

elements of the criminal offense as defined by state law.” Id.

                                ASSAULT ON A PUBLIC SERVANT

       A person commits the offense of assault on a public servant if he intentionally, knowingly,

or recklessly causes bodily injury to a person he knows is a public servant while the public servant

is lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West

2011). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical

condition.” Id. § 1.07(a)(8) (West Supp. 2012). Under this definition, “[a]ny physical pain,

however minor, will suffice to establish bodily injury.” Garcia v. State, 367 S.W.3d 683, 688 (Tex.

Crim. App. 2012). “Direct evidence that a victim suffered pain is sufficient to show bodily injury.”

Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009).

       According to Jones, the evidence is legally insufficient to show Officer Kirkpatrick felt

pain because Officer Kirkpatrick testified he was wearing a vest that protected his rib area. In

making this argument, Jones discounts Officer Kirkpatrick’s testimony that he felt a sharp pain

when Jones hit him in the ribs and that the pain lasted for several days. Further, Officer Salazar

testified that he had previously been assaulted while wearing a protective vest and had felt pain

through the vest. It was for the jury to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at

319. Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude the jury

could have found that Jones caused bodily injury to Officer Kirkpatrick beyond a reasonable doubt.

Therefore, we overrule Jones’s first issue on appeal.




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                             INEFFECTIVE ASSISTANCE OF COUNSEL

   In his second issue, Jones asserts that he was provided ineffective assistance of counsel as

follows:

   1. Trial counsel filed several pre-trial motions that he failed to have heard and ruled upon.

   2. Trial counsel failed to object to extraneous offense and hearsay testimony that a person
      told Officer Kirkpatrick that Jones had a knife and was trying to sell drugs.

   3. Trial counsel failed to ascertain whether Jones was suffering from mental disabilities that
      could have led to an insanity or diminished capacity defense.

       We measure a claim of ineffective assistance of counsel against the two-prong test

established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See

Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). A

person claiming that counsel was ineffective must prove, by a preponderance of the evidence, that

(1) counsel’s performance was deficient, falling below an “objective standard of reasonableness,”

and (2) the deficient performance prejudiced the defense such that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (quotation

omitted). Further, we “indulge in a strong presumption that counsel’s conduct fell within the wide

range of reasonable assistance and that the challenged action might be considered sound trial

strategy.” Id. (quotation omitted). “The mere fact that another attorney might have pursued a

different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel.” Id.

“The Strickland test is judged by the ‘totality of the representation,’ not by counsel’s isolated acts

or omissions, and the test is applied from the viewpoint of an attorney at the time he acted, not

through 20/20 hindsight.” Id. Thus, any allegation of ineffectiveness must be firmly founded in

the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under normal circumstances, the record on
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direct appeal will not be sufficient to show that counsel’s representation was so deficient and so

lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s

conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). Rarely will the trial record contain sufficient information to permit a reviewing court to

fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813. In the

majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect

the failings of trial counsel. Bone, 77 S.W.3d at 833. “Trial counsel should ordinarily be afforded

an opportunity to explain his actions before being denounced as ineffective.” Menefield v. State,

363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quotation omitted). “If trial counsel is not given

that opportunity, then the appellate court should not find deficient performance unless the

challenged conduct was so outrageous that no competent attorney would have engaged in it.” Id.

(quotation omitted).

    As to Jones’s complaint that his trial counsel failed to obtain rulings on pre-trial motions, we

cannot say that this amounts to ineffective assistance of counsel. See Mares v. State, 52 S.W.3d

886, 891 (Tex. App.—San Antonio 2001, pet. ref’d) (explaining decision not to pursue pre-trial

motions “is not categorically deemed ineffective assistance of counsel because trial counsel may

decide not to file pre-trial motion as part of his trial strategy”); Wills v. State, 867 S.W.2d 852, 856

(Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (holding failure to obtain ruling on pre-trial

motions not ineffective assistance of counsel). “[U]nless an appellant shows that a pretrial motion

had merit and that a ruling on the pretrial motion would have changed the outcome of the case, he

has failed to establish both prongs of the Strickland standard.” Ex parte Hollowell, No. 03-11-

00240-CR, 2012 WL 1959309, at *3 (Tex. App.—Austin 2012, pet. ref’d).

        Jones has offered no argument as to the merits of his pre-trial motions nor has he shown

how obtaining a ruling would have changed the outcome of his case. Under these circumstances,
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Jones has failed to show that trial counsel was ineffective in failing to have pre-trial motions heard

and ruled upon.

       Jones also argues that trial counsel was ineffective for failure to object to extraneous

offense and hearsay testimony. Specifically, Jones contends that the evidence that Jones had a

knife and was trying to sell drugs should have been objected to because it was inadmissible hearsay

and extraneous offense evidence. As the State points out, however, this evidence was not hearsay

because it was not offered for the truth of the matter asserted, but instead was offered to show why

Officer Kirkpatrick approached Jones, patted him down, and arrested him. Further, the fact that a

person reported to Officer Kirkpatrick that Jones had a knife and had tried to sell drugs was not

inadmissible extraneous offense evidence, but rather was admissible as same transaction

contextual evidence. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993) (holding

same transaction contextual evidence “imparts to the trier of fact information essential to

understanding the context and circumstances of events which, although legally separate offenses,

are blended or interwoven” and is “admissible, not for the purpose of showing character

conformity, but to illuminate the nature of the crime alleged”). The fact that a person reported to

Officer Kirkpatrick that Jones had a knife and tried to sell drugs was essential for the jury to

understand why Officer Kirkpatrick took the action he did. Also, as the State points out, the record

shows that trial counsel did object to the evidence regarding the drugs and was successful in

obtaining a limiting instruction from the court with regard to the knife.

       Finally, Jones argues that trial counsel was ineffective in failing to ascertain whether Jones

suffered from mental disabilities that could have helped in his defense. Specifically, Jones points

to trial counsel’s argument during punishment in which counsel stated:

       Mr. Jones has had some trouble in the past, but I believe, if you read from the PSI,
       you can see that some of it has to do with mental issues and him giving – self
       medicating through drugs since he was 11.
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Jones urges that counsel’s statement shows that counsel failed to adequately interview Jones and

explore all possible defenses. There is nothing, however, in the record showing that trial counsel

did not adequately investigate whether Jones suffered from mental disabilities that could have

helped in his defense. See Hernandez, 726 S.W.2d at 57 (holding court cannot assume that because

record is silent as to depth of attorney’s investigation of insanity defense, he made no such

investigation). Accordingly, Jones did not receive ineffective assistance of counsel.

       We affirm the trial court’s judgment.


                                                 Karen Angelini, Justice

Do not publish




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