






NUMBER 13-01-623-CR & 13-01-624-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG




LINDON TUCKER,	Appellant,


v.


THE STATE OF TEXAS,	Appellee.



On appeal from the 130th District Court
of Matagorda County, Texas.




O P I N I O N


Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1)

Opinion by Justice Dorsey


	Appellant, Lindon Tucker, was convicted in two cases of assault on a public
servant and sentenced to nine years imprisonment and a $2,500 fine for each.  The
two cases were tried together because they arose from the same incident, and two
Matagorda County Deputy Sheriffs, Robert L. Hearn and David Worthey, were the
victims.  
	The deputies were dispatched to the appellant's rural home to investigate a
domestic disturbance between Alden and Gina Orr around 6 a.m. on January 6, 2001. 
Appellant, the Orrs, and three others had been together partying and drinking well into
the early morning hours.  While the deputies were interviewing the Orrs separately
from one another, Tucker volunteered his advice as to whom the officers should arrest. 
Tucker was told by the deputies to stop interfering with the investigation, to go inside
his home, and to close his front door.  Tucker persisted in advising the officers and
they announced he was under arrest and grabbed his wrists.  Tucker quickly retreated
into his home pulling the deputies with him.  A struggle ensued, resulting in blows
being struck, the deputies being squirted in the face with their pepper spray, and
Tucker being shot, at which he shouted, "I've been shot; call my lawyer."
	Appellant brings several grounds of error: failure to grant a new trial because of
juror disqualification and misconduct,  insufficiency of the evidence, both factual and
legal, and that the detention and arrest of appellant "was an unlawful exercise of
police authority and violated his right to due process of law." 
				I.  The Problem with the Juror. 
	During voir dire the potential jurors were asked if they knew any of the law
enforcement officers who would probably be witnesses in the trial, including the
victims, Deputies Hearn and Worthy.  Several persons on the panel stated that they
did know certain law enforcement witnesses, but one juror, Joseph Sepulveda, did not
respond, indicating he was not acquainted with any.  Mr. Sepulveda was selected on
the jury and became its foreman.   
	After the jury was sworn, but before testimony began, the district attorney,
Steven Reis, approached the bench and had a brief discussion with the judge, the
Honorable Oliver S. Kitzman, assigned judge.  The judge, after excusing the jury until
the next morning, announced that he had been informed that one of the jurors, Mr.
Sepulveda, had more than ordinary knowledge of the case, and an inquiry was
necessitated.  Apparently Mr. Sepulveda worked with Deputy Worthy's wife, Patricia
Worthey, and there was some concern that the case had been discussed at their place
of employment.
	The judge discussed this matter with Sepulveda, initially stating that perhaps
Sepulveda may have heard something about the case from working with someone who
is close to this case.  The judge asked Mr. Sepulveda what he knew about the case,
and Mr. Sepulveda responded that all he had heard were rumors "not through that
individual."  The court asked if he had a direct conversation with a fellow employee
about the case, and Mr. Sepulveda said "no".  The judge then asked if he could be fair
and impartial to both sides, and Mr. Sepulveda said "yes".  
	Defense counsel asked the juror if he had a conversation with Mrs. Worthy
about the case, and he responded that he had not.  The juror then said there was a
conversation going on in a cubicle at work about the case, but he did not have time
to listen.  When asked if he knew anything about the case, he responded that he knew
nothing other than what he had heard during voir dire the previous day and what he
had read in the newspapers a long time ago, but he did not associate it with this case.
	The court asked if either side considered it appropriate to make any further
inquiry, and appellant's counsel replied no, but expressed concern that if it developed
later that there was indeed a conversation between Sepulveda and the wife of Deputy
Worthey, there would be problems.  The judge stated that "we will all be alert to that
possibility" and observed that "the juror speaks convincingly of what he's said."  No
motions were made to disqualify the juror and the trial proceeded.  The jury returned
verdicts of guilty in both cases.
	A motion for new trial was filed and a hearing held before the Honorable Craig
Estlinbaum, judge of the 130th District Court of Matagorda County.  At that hearing,
Patricia  Worthey, the wife of Deputy  Worthey, testified that Joseph Sepulveda works
where she does and at one time was her supervisor.  After the scuffle between
appellant and Deputies Worthey and Hearn, Mrs. Worthey talked about it with her co-workers, and stated that Mr. Sepulveda was nearby but did not participate in the
conversation.  At the end of the conversation Mr. Sepulveda asked if Deputy Worthey
and appellant Tucker were all right.  Mrs. Worthey testified that Mr. Sepulveda did not
know Deputy Worthey, but knew that he was her husband. 
	Mr. Sepulveda testified that he does not know Deputy Worthey, but knows his
wife, because he was her supervisor at work.  He overheard a conversation between
her and other employees about the incident.  He knew her husband was in law
enforcement.  During questioning in voir dire as to whether he knew Deputy Worthey,
he stated he had answered truthfully, because he did not know him, and did not make
the connection between Deputy Worthey and Patricia Worthey until later.  When the
judge questioned him before the trial started but after the jury was chosen, he realized
they were married. 
	Judge Estlinbaum denied appellant's motion for new trial.
	Appellant claims error in the trial court's denial of the motion for new trial
arguing (1) had he known that Juror Sepulveda had engaged in conversation with
Deputy Worthy's wife inquiring about his condition, he would have struck the juror,
and (2) Juror Sepulveda was disqualified as a matter of law.
	Article 35.16 of the Texas Code of Criminal Procedure states the grounds on
which a prospective juror may be challenged for cause, and article 35.19 commands
that a potential juror who has certain disqualifications is ineligible to serve, regardless
of the consent of the parties.  See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon
Supp. 2003); Tex. Code Crim. Proc. Ann. art. 35.19 (Vernon 1989).  A prospective
juror is absolutely disqualified if he has been convicted of, or is under accusation or
indictment for theft or any felony, or if he is insane.   Id. art. 35.19.  The evidence
reveals no hint that Juror Sepulveda fell within any of these categories.  Therefore, he
was not disqualified from serving on the jury as a matter of law.
	The only objection made by appellant to Mr. Sepulveda sitting on the jury was
made at the hearing on the motion for new trial.  We review the trial court's denial of
a motion for new trial by the standard of abuse of discretion; i.e., whether the court
acted according to guiding principles of law, or whether the decision was wholly
arbitrary or unreasonable.  Salazar v. State, 38 S.W.3d 141, 147- 148  (Tex. Crim.
App. 2001); State v. Trevino, 930 S.W.2d 713, 715 (Tex. App.-Corpus Christi 1996,
pet. ref'd); see Tex. R. App. P. 33.1.
	The evidence at the hearing was that Juror Sepulveda answered questions at
voir dire and at the subsequent hearing honestly.  There was no evidence he knew
Deputy Worthey, although he knew that his employee was married to him.  We hold
the trial court did not abuse its discretion in overruling the motion for new trial.  The
point of error is overruled.	
				II. Sufficiency of the Evidence.
	Appellant was charged and convicted of assault on a public servant while the
public servant was lawfully discharging an official duty.  Tex. Pen. Code Ann. §
22.01(b)(1) (Vernon 2003).   The indictment alleged the official duty the officer was
discharging was attempting to arrest appellant for interference with public duties of
a peace officer.  Tex. Pen. Code Ann. § 38.15 (a)(1) (Vernon 2003).
	In his first ground of error appellant challenges the legal sufficiency of the
evidence to support the conviction.  In reviewing the legal sufficiency of the evidence
we view the evidence in the light most favorable to the verdict, asking 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 (1979). 
	Although the events leading to the conviction have been generally told, it is
necessary to relate in some detail the assaults themselves.  When the deputies arrived
at appellant's home, they were met in the driveway by Mrs. Orr.  One deputy talked
to her in the yard, and the other deputy went onto the porch of the trailer house to talk
to Mr. Orr, who was inside.  Mr. Orr went outside to talk to the deputy, and appellant
was in the front door of his home telling the deputy to arrest her if they arrested Mr.
Orr.  Deputy Worthey told appellant that they would handle it, and shut the door,
leaving appellant inside.  Appellant continued to tell the deputies that they should
arrest Mrs. Orr, repeating his instructions as many as seven or eight times.   The
officers told appellant repeatedly that they would conduct their interviews and to "stay
out of it" and get back in his house and shut the door.  They finally told him if he
didn't stop interfering they would arrest him.  When he gave them his final bit of
advice, both officers walked up the steps, approached appellant in the doorway of his
house, told him he was under arrest, and grabbed his wrists to put handcuffs on him. 
	Appellant protested, as he had earlier, that he was in his own house, and he fell
backward to the floor, bringing the officers into the house with Deputy Worthey falling
on top of appellant.  The two deputies struggled with appellant on his back with
Deputy Worthey on top of him and Deputy Hearn trying to help.  Blows and kicks were
struck by appellant and the officers. The three ended up in a bathroom so small that
Deputy Hearn couldn't participate more than hitting appellant once in the face and
putting his foot on his neck or head.   Deputy Worthey testified that appellant struck
him several times in the head with his fist, and he felt he was getting the worst of the
fight.  He decided to use his pepper spray.  He retrieved it from his belt, shouted
"pepper spray", and tried to squirt it into appellant's eyes.  Worthey lost control of the
spray to appellant, and was himself squirted in the eyes, resulting in his immediate
blindness and severe discomfort.  Worthey said all he could do was cover up to protect
himself, feeling he was totally defenseless.  He got to his knees or feet, pulled his
pistol, and shot once blindly in appellant's direction, striking him.  Appellant shouted, 
"I've been shot; call my lawyer."    
	Deputy Worthey testified he was hit repeatedly by appellant with his fist and
sprayed with pepper spray.  Deputy Hearn testified he was kicked by appellant and
was also sprayed with pepper spray.   
	The statute involved, section 22.01(b)(1) (2) of the penal code, requires that at the
time of the assault, the officers be lawfully discharging an official duty, stated in the
indictment and charge, as attempting to arrest appellant for the crime of interfering
with the performance of their public duties.  Appellant argues that the officers were
not lawfully discharging an official duty because his attempted arrest was unlawful. 
The deputies were attempting to arrest appellant for violating section 35.15(a),
interfering with their performance of official duties; however, subsection (d) of section
38.15 provides that it is a defense to prosecution if the interference consists of speech
only.  Tex. Pen. Code Ann. § 38.15(d).  The evidence is unequivocal that appellant only
spoke to the deputies, telling them repeatedly in essence that if they arrested Mr. Orr,
they needed to arrest Mrs. Orr also.  Those spoken words were appellant's sole
interference with the officers' investigation of the domestic disturbance.  Appellant
argues that he had not committed an offense of interfering with the officers, and thus
their attempt to arrest him was not "lawfully discharging an official duty" as required
to constitute an assault on a public servant.   Tex. Pen. Code Ann. § 22.01(b)(1).
	The State responds that the validity of the arrest does not constitute a defense
to the crime of resisting arrest.  State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim.
App.1995); Barnett v. State, 615 S.W.2d 220, 223 (Tex. Crim. App 1981); see Tex.
Pen. Code Ann. § 38.03(b) ("It is no defense to prosecution under this section that the
arrest or search was unlawful.").  Accordingly, argues the State, appellant may not
resist his arrest, regardless of its legality.  However, appellant was not charged and
convicted of resisting arrest so the statutory provision pertaining to that crime is not
applicable.  There is no similar provision in the statutes that relate to interference with
a public servant. (3)  The State chose not to charge appellant with resisting arrest, an
offense carrying a lesser penalty than the offense charged, assault on a public officer. 
The statutory proviso is inapplicable.
	However, regardless of the statute, identical policy concerns are implicated.  In
addressing the legislature's abolition of the common law right to resist an unlawful
arrest, the Texas Court of Criminal Appeals stated, "This reflects a growing realization
that the use of self-help to prevent an unlawful arrest presents too great a threat to
the safety of individuals and society to be sanctioned."  Ford v. State, 538 S.W.2d
633, 635 (Tex. Crim. App. 1976) (quoted in State v. Mayorga, 901 S.W.2d 943, 945
(Tex.Crim.App. 1995)).  The Texas Court of Criminal Appeals held in Craig v. State,
594 S.W.2d 91 (Tex. Crim. App. 1980) that the fact that the arrest is not illegal is not
a defense to assault on a public servant in the lawful discharge of his duties.  Id. at
94.  Similarly, in Gonzalez v. State, 574 S.W.2d 135 (Tex. Crim. App. 1978) the court
stated, "Regardless of whether the appellant's arrest was lawful or unlawful, the
deputy constable was in the lawful discharge of his duty when he attempted to arrest
appellant."  Id. at 137.   Several courts of appeal have also held that it is not a defense
to assaulting a public servant in the lawful discharge of his official duties that the
arrest attempted by the public servant was illegal.  See Traylor v. State, 43 S.W.3d
725, 729 (Tex. App.- Beaumont 2001, no pet.); Cooper v. State, 956 S.W.2d 95, 98
(Tex. App.-Tyler 1997, pet. ref'd).  It is a fundamental tenet of this law that, "The line
between an illegal and legal arrest is too fine to be determined in a street
confrontation; it is a question to be decided by the courts."  Cooper, 956 S.W.2d at
98; State v. Mayorga, 901 S.W.2d 943, 946 (1995) (quoting Ford v. State, 538
S.W.2d 633, 635 (Tex. Crim. App. 1976)).  The duty of a citizen is to submit to the
arrest, legal or not, and later resolve the issue in the due course of law.  Appellant's
second ground of error is overruled.  
	Appellant's third point of error is that the evidence is factually insufficient to
support the conviction, because of the absence of evidence that he interfered with the
officers' discharge of official duties by anything other than talking to them.  However,
the essence of the offense as alleged and tried is that the officers were assaulted
when trying to arrest appellant.  As discussed in the preceding point of error, the
legality of the attempted arrest is not a defense.  We have carefully reviewed the
evidence and find it factually sufficient to support the conviction.  See Johnson v.
State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  
	In his final point of error appellant urges that "the detention and arrest of
appellant was an unlawful exercise of public authority and violated his right to due
process of law."  He argues that both the Fourth Amendment of the United States
Constitution and Article 1, Section 9, of the Texas Constitution guarantee that people
are secure in their homes from unreasonable searches and seizures and that this
attempted arrest of appellant was unlawful because it was without probable cause and
was without a warrant.  U.S. Const. Amend. IV; Tex. Const. art. I, § 9.  However,
regardless of the lawfulness of the attempted arrest, the duty of the citizen is to
submit and not resist the arrest.  Gonzalez v. State, 574 S.W.2d 135, 137 (Tex. Crim.
App. 1978) ("Regardless of whether the appellant's arrest was lawful or unlawful, the
deputy constable was in the lawful discharge of his duty when he attempted to arrest
appellant."). The point of error is overruled.
	The judgment is AFFIRMED.
 
 
 	____________________________
								J. BONNER DORSEY
								Justice
Publish.
Tex. R. App. P. 47.2(b).

Opinion delivered and filed
this 21st day of August, 2003.

1.  Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme
Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
2.  "Section 22.01.  Assault.  (a) A person commits an offense if the person: (1) intentionally,
knowingly, or recklessly causes bodily injury to another . . . . (b) An offense under Subsection (a)(1) is
a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is
committed against:  (1) a person the actor knows is a public servant while the public servant is lawfully
discharging an official duty . . . ."
3.  Resisting arrest has a lesser penalty than interference with a public servant.  See Sec.
22.01(b), assault on a public official, third degree felony; Sec. 38.03(c), resisting arrest, Class A
misdemeanor.
