
NO. 07-03-0216-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 22, 2004
______________________________

JONATHAN SHANE ROSS PEAKE, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee
_________________________________

FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 01-08-05233-CR; HON. JAMES KEESHAN, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.
	Appellant Jonathan Shane Ross Peake appeals his conviction for aggravated
robbery.  Through two issues, he contends that 1) the trial court abused its discretion when
it admitted into evidence expert fingerprint testimony in violation of Daubert v. Merrill Dow
Pharmaceutical, Inc. (1) and its progeny, and 2) he received ineffective assistance of counsel. 
We affirm the judgment of the trial court. 

 	Background
 On May 10, 2002, a black man (Tywon Lang) knocked on the door of the home of
Richard Blackmoore who recognized the man as someone who had come to his door
several days before with a white man (later identified as appellant).  Lang asked to mow
Blackmoore's lawn.  Blackmoore denied the request.  When Lang departed, he failed to
shut the gate to the yard.  Fearing that his dog would escape, Blackmoore went out the
front door several minutes later to rectify Lang's default.  At that point, he was confronted
by both Lang and appellant.  The latter was wearing a ski mask and had a gun which he
used to force his way into the residence.  The men tied up Blackmoore with a dog leash
and took a Rolex watch and some cash.  During the robbery, Blackmoore's dog bit Lang
on his leg.  
	Lang and appellant attempted to leave the scene in a red pickup, later identified to
be owned by appellant's mother, but the engine would not start.  In attempting to start the
vehicle, Lang pushed the pickup and appellant steered.  While doing so, they were
observed by a neighbor, Myra Nash.  Lang subsequently left the vehicle, was stopped by
police on foot, admitted his involvement in the robbery, and showed police where to find
the watch.  So too did he testify at appellant's trial and expressly inculpate himself and
appellant.
Issue One - Expert Testimony

	 In his first issue, appellant complains about the admission into evidence of
testimony regarding fingerprint analysis conducted by a purported expert.  It was allegedly
inadmissible because it was "hard to square with Daubert."  We overrule the issue for it
was waived.
	  During trial, appellant complained of the reliability of the expert testimony with
respect to palm print analysis, while on appeal, he complains of the testimony with respect
to fingerprint analysis.  Furthermore, counsel for appellant took care to distinguish between
the two subjects below.  Thus, given that the objection uttered below does not comport with
the issue asserted on appeal, the purported error was and is waived.   Massey  v. State,
933 S.W.2d 141, 157 (Tex. Crim. App. 1996).     		     		
Issue Two - Ineffective Assistance

	In his second issue, appellant contends his trial counsel was ineffective since he
failed to object to the identification of him as one of the robbers by Blackmoore and Nash. 
We overrule the issue.
	The standard by which we review ineffective assistance of counsel claims is well
established.  Thus, we will not repeat it, but cite the parties to Strickland v. Washington,
466 U. S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), Tong v. State, 25 S.W.3d 707
(Tex. Crim. App. 2000), cert. denied, 532 U. S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027
(2001), and Hernandez  v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) for an
explanation of same.  Further, claims of ineffective assistance must be firmly founded in
the record.  Rios v. State, 990 S.W.2d 382, 385 (Tex. App.-Amarillo 1999, no pet.).
	With regard to the in-court identification by Blackmoore, appellant fails to explain
why the testimony was inadmissible.  He simply states that it "was so objectionable the . . .
Court felt it necessary to attempt to clarify" it.  Furthermore, the specific objection that
counsel was purportedly required to make goes unmentioned, as does any authority
supporting the conclusion that the evidence was inadmissible.  Thus, we are left to guess
at the reasoning underlying appellant's claim and at the legitimacy of that reasoning, if any. 
And, because of that, the complaint was waived due to insufficient briefing.  See Garcia
v. State, 887 S.W.2d 862, 880-81 (Tex. Crim. App. 1994), overruled in part on other
grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (overruling the claim
that counsel was ineffective due to his failure to object since the appellant failed to explain
"how counsel might have kept the statement out"); Melonson v. State, 942 S.W.2d 777,
782 (Tex. App.-Beaumont 1997, no pet.) (holding that an appellant must not only
specifically identify the deficiencies in counsel's performance but also identify the specific
objection that should have been made and provide authority in support of his argument that
the objection would have been meritorious).
	As to the out-of-court identification by Nash, we also find it to be insufficiently
briefed.  Appellant had the burden to prove not only that counsel's performance was
deficient but also that the deficiency prejudiced him.  Tong v. State, 25 S.W.3d at 712. 
While the former element is addressed at bar, the latter is not.  Nowhere does appellant
endeavor to explain how trial counsel's perceived failure to attempt to suppress Nash's
testimony created a reasonable probability that but for the supposed error the result would
have been different.  This is of dire import in view of Lang's testimony and the other
evidence directly inculpating appellant.  And, given that the burden lies with "[a]ppellant . . .
[to] prove both prongs of [the test] by a preponderance of the evidence in order to prevail,"
id. (emphasis added), we have no duty to unilaterally fill the void appellant left. 
	Accordingly, the judgment of the trial court is affirmed.


							Brian Quinn
							   Justice
Publish.
1. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


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NO. 07-09-00223-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JULY
13, 2010
 

 
ANTONIO G. OLIVAREZ, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 364TH DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2007-416,403; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
Appellant, Antonio G. Olivarez, was
convicted of assault on a public servant[1]
and of taking a police officers weapon,[2]
both third-degree felonies.  The jury
assessed an enhanced punishment of twenty years imprisonment for each
offense.  We affirm.
 
 
Factual and Procedural History
            Just
after midnight on May 7, 2007, Lubbock Police Officer Travis Bratton was on
patrol, driving south on Avenue Q.  After
meeting a vehicle traveling north on Avenue Q, Bratton noticed, in his rear
view mirror, that the vehicles rear license plate did not appear to be
properly illuminated.  Bratton made a
U-turn to follow the vehicle and extinguished his headlights for a moment to
confirm his initial observation.  After
confirming that the license plate was not properly illuminated, Bratton
initiated a traffic stop.  The driver of
the vehicle, identified as appellant, pulled into a parking lot, and Bratton
pulled in behind him.  Rather than
remaining stopped, however, appellant jumped a curb and drove off in an
easterly direction on 24th Street.
            Bratton
followed the vehicle, found it crashed into a fence, and observed appellant
exit the vehicle and begin running. 
Bratton pursued appellant into a residential backyard.  As appellant attempted to climb over a fence,
Bratton caught up to him, pulled him down from the fence, and attempted to
bring him to the ground.  When appellant
resisted and returned to his fence-scaling efforts, Bratton attempted to use a taser on appellant. 
Bratton missed making a connection between the tasers
leads and appellants body but approached and used the taser
on him as a stun gun (without the leads connected to appellant).  Appellant came down off the fence.
            Bratton
and appellant fell to the ground and struggled. 
Somehow, Bratton testified, appellant was able to dispossess Bratton of
the taser and use it on him.  After sustaining shocks from the taser to his neck, shoulder, side, and, perhaps, chest,
Bratton forced appellant to relinquish control of the taser
and chased after appellant who had resumed his flight.
            Bratton
again caught up to appellant, and the two struggled over possession of the taser.  During the struggle,
appellant managed to use the taser against Bratton a
second time and regain control of the taser.  He then began running toward the fence
again.  Bratton pulled out his firearm
and directed appellant to drop the taser or else run
the risk of being shot.
            Bratton
heard sirens approaching and began to yell so that fellow officers could locate
him in the backyard.  As appellant made
one last effort to scale the fence, Bratton explained to him that, if appellant
continued to possess the taser, Bratton would shoot
him.  There appeared to be a
stand-off.  Bratton alerted the
approaching officers that appellant had the taser.  A fellow officer directed Bratton to shoot
appellant.  Having heard that directive,
appellant tossed the taser.  About that time, Brattons fellow officers
came into the backyard and took appellant into custody.
            Appellant
was taken to the hospital where he admitted to an officer that he used the taser on Bratton and expressed to other officers his desire
to apologize to Bratton.  He apologized
to Bratton personally on the second morning of trial and expressed his
gratitude that Bratton did not shoot him when the other officer suggested he do
so. 
            Appellant
was convicted of assault on a public servant and of taking a weapon from a
police officer.  Appellant timely
appealed and, by two issues, asks this Court to determine whether legally and
factually sufficient evidence supports those convictions.
Standards of Review
            In
assessing the legal sufficiency of the evidence, we review all the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State,
133 S.W.3d 618, 620 (Tex.Crim.App. 2004).  In conducting a legal sufficiency review, an
appellate court may not sit as a thirteenth juror, but rather must uphold the
jury's verdict unless it is irrational or unsupported by more than a mere
modicum of evidence.  Moreno
v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.
1988).
            In
assessing the factual sufficiency of the evidence, we must determine whether,
considering all the evidence in a neutral light, the jury was rationally justified
in finding the appellant guilty beyond a reasonable doubt.  See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.
2006).  In performing a factual
sufficiency review, we must give deference to the trier
of facts determinations if supported by evidence and may not order a new trial
simply because we may disagree with the verdict.  See id. at
417.  As an appellate court, we are not
justified in ordering a new trial unless there is some objective basis in the
record demonstrating that the great weight and preponderance of the evidence
contradicts the jury's verdict.  See
id.  Additionally, an appellate
opinion addressing factual sufficiency must include a discussion of the most
important evidence that appellant claims undermines
the jury's verdict.  Sims
v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.
2003).  However, when a
defendant's version of the facts conflicts with other evidence, we must
recognize that it is the jury's prerogative to judge the credibility of the
evidence and to ascribe the weight to be given to the evidence.  See Jones v. State, 944 S.W.2d 642, 64748 (Tex.Crim.App.
1996).
Analysis
            The
record shows that appellant possessed the taser on
two separate occasions, each being relevant to one of the two offenses for
which appellant was convicted.
Assault on a Public Servant
            A
person commits assault if he or she intentionally, knowingly, or recklessly
causes bodily injury to another.  Tex. Penal Code Ann. § 22.01(a)(1).  Assault is a
Class A misdemeanor but is elevated to a third-degree felony if committed
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.  Id. § 22.01(b)(1).
Mental State
            A
person acts intentionally when it is his conscious objective or desire to
engage in the conduct or cause the result. 
Id. § 6.03(a) (Vernon 2003).  A person acts knowingly when he is aware of
the nature of his conduct or that the circumstances exist or when he is aware
that his conduct is reasonably certain to cause the result.  Id. § 6.03(b).  A person acts recklessly when he is aware of
but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. 
Id. § 6.03(c).  The trier of fact
may infer intent from direct evidence and from circumstances surrounding the
act.  See Guevara v. State,
152 S.W.3d 45, 50 (Tex.Crim.App. 2004); Brown v.
State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).
            Appellant
challenges the sufficiency of the evidence to show that he acted with the
requisite intent when he used the taser against
Bratton.  We revisit and elaborate on the
details of the first occasion on which appellant gained control of the taser.
            Following
a brief pursuit, Bratton found appellant in a backyard trying to scale a wooden
fence and go into the alley.  Bratton
pulled him down off the fence and directed him to get on the ground.  Bratton testified that appellant just stood
there and looked at him for a moment. 
Bratton then tried to force appellant to the ground.  A struggle between the two men ensued in
which appellant swung a fist at Bratton but apparently missed.
            Bratton
drew his taser and ordered appellant to get to the
ground.  Faced with appellants continued
defiance, Bratton fired his taser but missed making a
connection with the leads.  As appellant
tried to scale the fence, Bratton used the taser on
him in what Bratton explained is the tasers drive
stun function.  Bratton explained that a
drive stun delivers less voltage because the tasers
leads are not connected to the person but remains powerful at any rate.  In order to effectively drive stun a person,
Bratton testified, the shooter must maintain direct contact between the taser and the person.
            Appellant
came off the fence at that point, and a brief struggle ensued in which both men
went to the ground.  Bratton was on top
of appellant and directed him to roll over so that he could be placed under
arrest.  Appellant continued to struggle
and responded in a distressed and upset manner that he was not going or
could not go to jail.  At this point,
Bratton had decided to use the taser again on the
still-defiant appellant but discovered that appellant had the taser.  Then,
appellant began drive stunning Bratton. 
Bratton testified that he could not recall how appellant obtained
possession of the taser.
            Bratton
testified that appellant used the taser on him on
several places on his body.  He also
explained that, to operate the taser, one must turn a
switch to activate it and then pull the trigger, meaning it was likely that the
switch remained on from Brattons earlier use so that appellant would only need
to pull the trigger to employ the taser.  Bratton described the pain level associated
with getting drive stunned as a nine or ten on a scale of one to ten.  He testified that he yelled out in pain and
specifically recalled getting drive stunned in the neck, explaining that it
hurt pretty bad.
            After
appellant used the taser on Bratton, Bratton was able
to pin down appellants arm and avoid being stunned further.  Bratton struck appellant in the face with his
fist two or three times, and appellant dropped the taser.  As Bratton reached over to get it, appellant
pushed the officer off of him and returned to the fence.
            The
record shows that appellant, reluctant to go to jail and trying to flee
Bratton, held the taser in his hand and used it to
stun the officer on the neck, shoulder, and side as the two men struggled on
the ground.  Bratton experienced
significant pain from the taser, and appellant
continued his efforts to flee.  From the
evidence, a rational jury could conclude that appellant intentionally used the taser against Bratton. 
Legally sufficient evidence supports the conviction for assault on a
public servant.
            To
support his factual sufficiency contention as to the assault conviction,
appellant emphasizes Brattons testimony regarding the operation of the taser.  He testified
that unless a person turns the taser off, it will
keep discharging for five seconds after a person pulls the trigger.  He also admitted that, if a taser is discharging while located between two people, both
people may experience effects of the taser.  Appellant seems to suggest that the shock
Bratton experienced resulted from contact with appellant as Bratton used the taser or that involuntary muscle contractions resulting
from being drive stunned could have caused appellant to employ the taser during the struggle. 
However, Bratton saw the taser in appellants
left hand and testified that appellant made contact between the taser and Brattons body more than once and in a number of
locations.  This evidence would suggest,
contrary to appellants assertions, that appellants actions in discharging the
taser on Bratton were intentional.  Appellants sole possession of the taser and the number and variety of places on which
appellant used the taser on Bratton suggest that
appellants movements were products of his own volition rather than repeated
accidental or involuntary responses. 
Further, the jury heard evidence that appellant expressed his desire to
not go to jail from which it could have inferred that appellant intentionally
employed the taser against Bratton to avoid being
arrested.  Viewing the evidence,
including that evidence to which appellant points as undermining the verdict,
in a neutral light, we conclude that the evidence supporting the conviction is
factually sufficient.  We overrule
appellants first point of error.
            We
note that Bratton specifically testified that he is uncertain how appellant
first got the taser as the two were struggling on the
ground.  For this reason, the evidence
concerning the first occasion on which appellant gained control of the taser may not satisfy the elements of taking or attempting
to take a weapon from an officer.  We
need not fully address that issue, however, because the details of the second
occasion on which appellant gained possession of the taser
do satisfy those elements.
Taking a Weapon from a Police Officer
            The
Texas Penal Code provides as follows:
A person commits an offense if the person intentionally or knowingly
and with force takes or attempts to take from a peace officer, employee or
official of a correctional facility, parole officer, or community supervision
and corrections department officer the officer's, employee's, or official's
firearm, nightstick, stun gun, or personal protection chemical dispensing
device with the intention of harming the officer, employee, or official or a
third person.
Tex. Penal Code Ann. § 38.14(b). 
A stun gun is a device designed to propel darts or other projectiles
attached to wires that, on contact, will deliver an electrical pulse capable of
incapacitating a person.  Id. at
§ 38.14(a)(2). 
The actor is presumed to have known that the peace officer was, in fact,
a peace officer if the officer . . . was wearing a distinctive uniform or
badge indicating his employment or if the officer identified himself as a
peace officer.  Id.
§ 38.14(c).  Again, the State was
required to show that appellant acted intentionally, that it was his conscious
objective or desire to engage in the conduct or cause the result.  Id. § 6.03(a)
            Appellant
challenges the evidence of intent and force. 
Keeping in mind that the trier of fact may
infer intent from direct evidence and from circumstances surrounding the act,
we examine the details surrounding the second time appellant gained possession
of the taser.  See
Guevara, 152 S.W.3d at 50.  We look for evidence of how appellant gained
control of the taser and with what mental state he
did so.
            We
rejoin the nights events as appellant got up and ran toward the fence again
after having struggled with Bratton and having used the taser
on him.  Bratton had regained control of
the taser, caught up to appellant, and prepared to
drive stun him.  Appellant turned around,
used both hands to grab the officers wrist and hand, and redirected the taser toward Brattons forearm.  Bratton was unable to deactivate the taser because of the positions of his hands, the taser, and appellants grip.  Bratton was again drive stunned by the taser, this time in the arm, causing him to drop the taser.  Both men
tried to get the taser but appellant got it
first.  After appellant retrieved the taser, he again started running toward the fence.  At this point, Bratton drew his firearm.
            He
directed appellant to drop the taser on the ground or
there was a good possibility that he was going to get shot.  Appellant taunted Bratton, encouraging him to
go ahead and shoot.  Bratton heard fellow
officers approaching the area.  He
radioed to them and also yelled so that fellow officers could locate the two men.  He then heard several of his fellow officers
running toward the scene.  Upon hearing
the same thing, appellant made one last attempt to get over the fence.  Bratton alerted the responding officers to
the fact that appellant had his taser.  The corporal then directed Bratton to shoot,
at which point appellant threw down the taser.
            The
State had to prove that appellant intentionally or knowingly took or attempted
to take the taser from Bratton.  We initially note that appellant had earlier
expressed his displeasure at the prospect of going to jail.  We also know that appellant had previously
used the taser against the officer, at least
suggesting that he intended to do so again to further his efforts to avoid
arrest.  Also relevant to appellants
intent are his repeated attempts to get away and his continued physical struggles
with Bratton.  The jury could infer from
appellants swift retrieval of the taser, after his
grip and redirection of the taser forced Bratton to
drop it, that it was appellants conscious objective to regain control of the taser.  The record
also shows that appellant maintained control of the taser
despite Brattons directions to put it down. 
He kept the taser until another officer
directed Bratton to shoot appellant.  The
record does not reveal, and appellant does not point to, evidence that would
show appellant grabbed Brattons hand and the taser,
redirected the taser to drive stun Bratton, and then
retrieved and maintained the taser accidentally or in
any state of mind other than intentionally or knowingly.
            As
to the element of force, Bratton testified that he was going to use the taser against appellant again when appellant used both
hands to redirect the taser at Bratton and drive stun
him again by making contact between the taser and
Brattons forearm.  Bratton testified
that, due to the placement of appellants grip on the taser,
Bratton was unable to prevent the taser from striking
him in the arm.  Appellants maneuver and
the attendant shock forced Bratton to release the taser,
at which point appellant quickly seized it. 
The record, then, shows that by turning the taser
against Bratton, and maintaining his grip on the taser
as it shocked Bratton, appellant used force in taking or attempting to take
Brattons taser. 
Of course, the resulting shock is also a relevant use of force in
appellants efforts to take control of Brattons taser.  The record does not suggest any other manner
by which appellant gained possession of the taser
during this portion of the two mens encounter. 
Legally and factually sufficient evidence supports the jurys findings
as to both mental state and use of force. 
We overrule appellants second issue.
Conclusion
            Contrary
to assertions made in appellants brief and notations in the judgment that
suggest appellant pleaded guilty to both offenses, the reporters record shows
that appellant pleaded not guilty to both offenses.  We are authorized to reform the trial courts
judgment so it may speak the truth and exercise such authority here by
correcting the trial courts judgment to reflect that appellant pleaded not
guilty to both offenses.  See French
v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.
1992).  Having overruled appellants two
issues on appeal, we sustain the trial courts judgment as reformed.  See Tex.
R. App. P. 43.2(b).
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
 
            




Do
not publish.  
 




[1] Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (Vernon Supp.
2009).
 


[2] Tex. Penal
Code Ann. § 38.14(b) (Vernon Supp. 2009).
 


