                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-12-00480-CR

ANDREA L. JOHNSON,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 278th District Court
                               Madison County, Texas
                               Trial Court No. 11,663


                           MEMORANDUM OPINION


       In two issues, appellant, Andrea L. Johnson, challenges his convictions for one

count of aggravated assault of a public servant, a first-degree felony, and one count of

assault of a public servant, a third-degree felony.        See TEX. PENAL CODE ANN. §§

22.01(a)(1), (b)(1), 22.02(a)(1), (b)(2)(B) (West 2011). Specifically, appellant contends that

the trial court erred in failing to: (1) charge the jury on the lesser-included offense of

misdemeanor assault; and (2) provide the jury with the defense’s requested instruction

on “unlawful conduct.” We affirm.
                                        I.      BACKGROUND

        Appellant, an inmate at the Ferguson Unit of the Texas Department of Criminal

Justice, was charged by indictment with one count of aggravated assault of a public

servant and one count of assault of a public servant. 1 This matter stems from an

incident that transpired at the Ferguson Unit on November 19, 2010.

        Several inmates testified that, on the day in question, they observed corrections

officers use force on another inmate while the inmates were in the chow hall. At the

time of the initial use of force, Officer Jason Claborn recalled that there were

approximately 100 or 120 inmates in the chow hall and five to nine corrections officers.

The inmate involved in the initial incident was eventually subdued. However, Officer

Claborn testified that the atmosphere in the chow hall remained tense after the initial

incident transpired.

        In an attempt to maintain calm, officers instructed the inmates to sit down at the

tables in the chow hall. Officer Mitch Puckett explained that inmates are supposed to

stay seated until they are instructed to get up and leave the chow hall. However, one

inmate, appellant, refused to sit down when instructed. Officer John Reinke repeatedly

ordered appellant to sit down. Appellant refused Officer Reinke’s orders and “was

yelling out some stuff.” Assistant Warden Wayne Brewer observed that appellant was

not complying with Officer Reinke’s orders. Because he believed that it was necessary




        1The indictment also contained an enhancement paragraph referencing appellant’s underlying
August 6, 1998 conviction for capital murder, which originated in the Criminal District Court No. 4 of
Dallas County, Texas.

Johnson v. State                                                                               Page 2
to quell the situation for everyone’s safety, Assistant Warden Brewer entered the chow

hall to help.

        Appellant testified that he refused Officer Reinke’s orders because he wanted to

speak with Assistant Warden Brewer about the “unnecessary use of force” involved in

the initial incident. Appellant asserted that Assistant Warden Brewer pushed him in

the chest and told him to sit down. Officer Claborn disputed appellant’s testimony.

According to Officer Claborn, Assistant Warden Brewer simply put his hand out and

ordered appellant to sit down. Officer Claborn denied seeing Assistant Warden Brewer

touch appellant at this time.

        Appellant steadfastly refused to sit down.       Appellant testified that he told

Assistant Warden Brewer not to touch him.          Shortly thereafter, appellant recalled

feeling someone either push or pull him from behind. At this point, appellant punched

Assistant Warden Brewer in the face. Appellant believed that Assistant Warden Brewer

“was fixing to punch [appellant] so [appellant] punched [Assistant Warden Brewer]

first.” Appellant then turned around and punched Officer Reinke, which, according to

appellant, resulted in Officer Reinke dropping “the gas . . . out of his hand.”

        Multiple officers intervened, took appellant to the ground, and placed him in

hand restraints. Appellant alleged that the officers punched and kicked him while he

was on the ground in the hand restraints.          In addition, appellant proffered the

testimony of several other inmates who corroborated appellant’s allegations that

officers beat him while he was on the ground. The testifying officers, on the other hand,

denied appellant’s allegations.

Johnson v. State                                                                   Page 3
        Once appellant was subdued and returned to his prison cell a few minutes later,

Officer William Davidson and Nurse Elizabeth Smith examined appellant for injuries.

Appellant was strip searched at this time. Officer Davidson noticed that appellant did

not have any marks on his hands, but appellant did have some blood on the back of his

shorts. Officer Davidson did not observe any injury on appellant’s back that could have

caused the blood stain on appellant’s shorts. Nurse Smith recounted that appellant told

her that he had cuts on his head and shoulder. Nurse Smith testified that appellant had

two small abrasions—0.1 and 0.2 centimeters long, respectively—on his head that were

not actively bleeding. Neither of these abrasions required treatment because Nurse

Smith believed them to be too small. In addition, Nurse Smith recounted that appellant

had a contusion on his left shoulder that appeared to be fresh and was three centimeters

by six centimeters in area. According to Nurse Smith, appellant did not have any other

injuries.

        Assistant Warden Brewer and Officer Reinke, on the other hand, had more

substantial injuries. Officer Reinke recounted that appellant’s punch caused him to

bruise on the side of his head. In addition, appellant’s punch broke Officer Reinke’s

glasses. Assistant Warden Brewer sustained significant injuries to his nose. Assistant

Warden Brewer bled profusely from his nose after appellant punched him, which

necessitated his transfer to the emergency room. Assistant Warden Brewer testified

that, as a result of appellant’s punch, his face was fractured in three places, his “nose

was broken down,” and his septum was deviated.           Assistant Warden Brewer has




Johnson v. State                                                                   Page 4
undergone four surgeries to repair the damage caused, and he noted that additional

surgeries are necessary.

        In any event, on cross-examination, appellant admitted that he could have

avoided the situation had he sat down when ordered to do so. He also acknowledged

that he hit Assistant Warden Brewer first. When asked whether Assistant Warden

Brewer hit him, appellant stated:

        I know he tried. Once I know—I know for sure that I thought he was
        going to hit me. I can’t say if he hit me or not. I told you, people were
        hitting me but I was to[o] busy trying to protect my face. My face is my
        main concern. I was trying to protect my face. I’m not being—worrying
        about who was hitting me in my body.

        Later, the State proffered appellant’s written statement for inclusion in the

record. In his statement, appellant noted the following:

        On 11-9-10 around 10:00 a.m. in the north chow hall[,] I tried talking to
        Major W. Brewer after witnessing an inmate assaulted by staff members. I
        was surrounded by a couple of officers. Major Brewer pushed me in the
        chest and told me to sit down. I felt another officer push me. I felt I was
        going to be beat up, as I was on 6-20-10. I then took the offensive
        defending my health and well[-]being. I struck Major Brewer once and
        turned towards Officer Reinke who tried to gas me. To further show that
        I was gonna [sic] be next to be an assaulted[;] look for a videotape of this
        incident[,] and check medical for my examination to uphold they [sic]
        wrongdoing[.] [T]hese officers present only hit me in my legs, arms[,] and
        back not to leave bruises.

        At the conclusion of the evidence, the jury found appellant guilty on both counts.

The jury found the enhancement paragraph in the indictment to be true and assessed

punishment as follows: (1) fifteen years’ incarceration in the Institutional Division of

the Texas Department of Criminal Justice for the aggravated-assault-of-a-public-servant

charge; and (2) two years’ confinement on the assault-of-a-public-servant charge. The

Johnson v. State                                                                       Page 5
trial court ordered that these sentences run consecutively with appellant’s underlying

sentence for capital murder. Subsequently, appellant filed a motion for new trial, which

was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal followed.

                       II.   LESSER-INCLUDED-OFFENSE INSTRUCTION

        In his first issue, appellant contends that the trial court committed reversible

error by failing to provide the jury with a lesser-included-offense charge on

misdemeanor assault.

A.      Applicable Law

        We review a trial court’s refusal to include a lesser-included-offense instruction

for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004) (en banc). An offense is a lesser-included offense if, among other reasons, it is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West

2006); Hall v. State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007). To determine whether a

defendant is entitled to an instruction on a lesser-included offense, the Texas Court of

Criminal Appeals has developed a two-step test. See Cavazos v. State, 382 S.W.3d 377,

382 (Tex. Crim. App. 2012) (citing Hall, 225 S.W.3d at 535-36; Rousseau v. State, 855

S.W.2d 666, 672 (Tex. Crim. App. 1993) (en banc); Aguilar v. State, 682 S.W.2d 556, 558

(Tex. Crim. App. 1985) (en banc)). Initially, a court must determine whether the proof

necessary to establish the charged offense also included the lesser offense. Id.; see Hall,

225 S.W.3d at 535-36. If so, the court then considers whether the evidence shows that, if



Johnson v. State                                                                     Page 6
an appellant is guilty, he is guilty only of the lesser offense. See Cavazos, 382 S.W.3d at

383.

        To determine whether an offense qualifies as a lesser-included offense under

article 37.09(1), Texas courts utilize the cognate-pleadings approach. Id. at 382 (citing Ex

parte Watson, 306 S.W.3d 259, 271 (Tex. Crim. App. 2009) (per curiam) (op. on reh’g)).

Under this approach, an offense is a lesser-included offense if the indictment for the

greater-inclusive offense either (1) alleges all of the elements of the lesser-included

offense or (2) alleges elements plus facts (including descriptive averments, such as non-

statutory manner and means, that are alleged for purposes of providing notice) from

which all of the elements of the lesser-included offense may be deduced. See id. This

first step is a question of law which does not depend on the evidence presented at trial

and calls on the court to compare the elements alleged in the indictment with the

elements of the lesser offense. See id.; see also Rice v. State, 333 S.W.3d 140, 144 (Tex.

Crim. App. 2011); Hall, 225 S.W.3d at 535.

        Step two involves considering whether there is some evidence that would permit

a rational jury to find that, if appellant is guilty, he is guilty only of the lesser offense.

See Cavazos, 382 S.W.3d at 383; Hall, 225 S.W.3d at 536. “This second step is a question

of fact and is based on the evidence presented at trial.” Cavazos, 382 S.W.3d at 383. A

defendant is entitled to a lesser-included-offense instruction if some evidence from any

source raises a fact issue on whether he is guilty of only the lesser offense, regardless of

whether such evidence is weak, impeached, or contradicted. Id. However, a defendant

is not entitled to a lesser-included-offense instruction simply because the evidence

Johnson v. State                                                                        Page 7
supporting the greater charged offense is weak, the evidence supporting the greater

charge is discredited or weakened during cross-examination, or the jury might

disbelieve crucial evidence pertaining to the greater offense. See Bignall v. State, 887

S.W.2d 21, 24 (Tex. Crim. App. 1994) (en banc). That is, “there must be some evidence

directly germane to a lesser[-]included offense for the factfinder to consider before an

instruction on a lesser[-]included offense is warranted.”        Id.    “The evidence must

establish the lesser-included offense as ‘a valid, rational alternative to the charged

offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).

B.      Discussion

        On appeal, appellant argues that he is entitled to a charge on misdemeanor

assault because misdemeanor assault is a lesser-included offense of assault of a public

servant, and because the record contains more than a scintilla of evidence

demonstrating that he is only guilty of misdemeanor assault. Appellant hinges this

issue on his contention that the correctional officers were criminally or tortiously

abusing their status as public servants at the time of the assault.

        1. Step 1

        In Hall v. State, the Texas Court of Criminal Appeals stated that:

        [a]ssault of a public servant requires proof of misdemeanor assault plus
        proof of four additional elements:

            1) the person assaulted was a public servant;

            2) the actor knew that the person he assaulted was a public servant;

            3) the person assaulted was discharging official duties at the time of
               the assault;

Johnson v. State                                                                     Page 8
            4) the person assaulted was lawfully discharging official duties.

158 S.W.3d 470, 473 (Tex. Crim. App. 2005). And based on these elements, the Hall

court concluded that misdemeanor assault is a lesser-included offense of assault of a

public servant. See id. Accordingly, we conclude that appellant has satisfied the first

step. See id.

        2. Step 2

        With regard to the second step, the Hall court emphasized that “there must be

some evidence from which a rational jury could acquit appellant of assault on a public

servant while convicting him of the lesser-included offense of misdemeanor assault.”

Id. (citing Bignall, 887 S.W.2d at 23). The Hall court further noted that: “In making this

decision, the court evaluates the evidence in the context of the entire record, but does

not consider whether the evidence is credible, controverted, or in conflict with other

evidence.” Id. (citing Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1990) (op. on

reh’g)).

        In this case, we must determine whether a rational jury could find appellant

guilty of only misdemeanor assault, not assault of a public servant.            “If there is

affirmative evidence in the record that negates one of the four additional elements of

assault on a public servant, yet admits the underlying assault, appellant would be

entitled to a lesser-included charge of misdemeanor assault.” Id. at 474. As stated

earlier, the only element of assault of a public servant that appellant claims that he has

affirmatively negated is the element addressing whether corrections officers lawfully


Johnson v. State                                                                      Page 9
discharged their official duties. Specifically, appellant asserts that his own testimony

and the testimony of other inmates show that Assistant Warden Brewer approached

appellant aggressively and was the first to initiate contact. Appellant also asserts that

his witnesses described officers choking, grabbing, and shoving appellant in the

shoulder and neck area without any provocation from appellant.               Based on this

testimony, appellant argues that he affirmatively negated that corrections officers

lawfully discharged their official duties. We disagree.

        In analyzing an officer’s “lawful discharge” of official duties, the Texas Court of

Criminal Appeals has stated that “as long as the officer was acting within his capacity

as a peace officer, he was acting within the lawful discharge of his official duties.” Id.

More specifically, courts have looked at the details of the encounter, such as whether

the police officer was in uniform, on duty, and whether he was on regular patrol at the

time of the assault, in analyzing whether the officer lawfully discharged official duties.

Id. Ostensibly, the “lawful discharge” of an officer’s official duties “means that the

public servant is not criminally or tortiously abusing his office as a public servant by

acts of, for example, ‘official oppression’ or ‘violations of the civil rights of a person in

custody’ or the use of unlawful, unjustified force.” Id. at 474-75.

        Relying heavily on a note from the jury requesting a definition of “lawful force,”

appellant contends that officers unlawfully discharged their official duties by using

unlawful, unjustified force in restraining him. Section 9.53 of the penal code provides

the following guidelines for when a correctional officer’s use of force is considered

“lawful”:

Johnson v. State                                                                      Page 10
        An officer or employee of a correctional facility is justified in using force
        against a person in custody when and to the degree the officer or
        employee reasonably believes the force is necessary to maintain the
        security of the correctional facility, the safety or security of other persons
        in custody or employed by the correctional facility, or his own safety or
        security.

TEX. PENAL CODE ANN. § 9.53 (West 2011). “[I]f a correctional officer’s use of force falls

within the above definition, he is lawfully discharging his official duties, and, if

assaulted at this time, the actor is guilty of assault of a public servant rather than mere

misdemeanor assault.” Hall, 158 S.W.3d at 475.

        Here, the record does not contain some evidence, from any source,

demonstrating that officers were criminally or tortiously abusing their status as public

servants at the time of the assaults. In fact, appellant does not direct us to relevant

authority demonstrating that the officers in this case criminally or tortiously abused

their status as public servants at the time of the assaults. At trial, appellant admitted

that he repeatedly refused to obey Officer Reinke’s orders to sit down. The record

reflects that Assistant Warden Brewer entered the chow hall and tried to diffuse the

situation. Though there is some dispute in the record as to Assistant Warden Brewer’s

actions towards appellant, even if we were to accept appellant’s version of the facts as

true, Assistant Warden Brewer merely touched appellant as he ordered him to sit down.

Furthermore, it is undisputed that Officer Reinke and Assistant Warden Brewer were in

their official uniforms and on duty supervising inmates at the Ferguson Unit on the day

in question.




Johnson v. State                                                                         Page 11
        Based on our review of the record, neither Officer Reinke nor Assistant Warden

Brewer’s actions leading up to the assaults amount to an unlawful discharge of their

official duties. We fail to see how merely touching an inmate while instructing him to

sit down amounts to an unlawful discharge of a correctional officer’s official duties. See

id. at 475 (concluding that an officer was lawfully discharging his official duties when

he shoved an inmate toward his cell after the inmate refused to follow an instruction to

“move on”). We believe the record establishes that the officers’ actions were necessary,

within the context of section 9.53 of the Texas Penal Code, to preserve the safety of the

officers and the inmates. See TEX. PENAL CODE ANN. § 9.53. Moreover, most of the

testimony provided by appellant’s witnesses regarding appellant’s alleged beating

transpired after appellant had assaulted both Assistant Warden Brewer and Officer

Reinke. Like Hall, there is no record evidence in this case that officers “unjustifiably or

maliciously hauled off and pushed or punched a quietly passing inmate who was

minding his own business.” Id. Appellant instigated this confrontation by refusing to

obey legitimate orders by corrections officers and eventually punching corrections

officers. See id.

        Therefore, based on the foregoing, we conclude that there is no evidence that

would support a rational conclusion that Assistant Warden Brewer and Officer Reinke

were unlawfully discharging their official duties at the time appellant punched them.

Accordingly, we cannot say that there is some evidence that would permit a rational

jury to find that, if appellant is guilty, he is guilty only of misdemeanor assault. See

Cavazos, 382 S.W.3d at 383; Rice, 333 S.W.3d at 145; Hall, 225 S.W.3d at 536. As such, we

Johnson v. State                                                                    Page 12
conclude that: (1) appellant was not entitled to a lesser-included-offense instruction on

misdemeanor assault; and (2) the trial court did not abuse its discretion in refusing to

issue such an instruction. See Cavazos, 382 S.W.3d at 383; see also Threadgill, 146 S.W.3d

at 666. We overrule appellant’s first issue.

                      III.   APPELLANT’S JURY-INSTRUCTION REQUEST

        In his second issue, appellant contends that the trial court committed reversible

error by failing to provide the jury with his requested instruction on “unlawful

conduct.”

A.      Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). To obtain reversal for

jury-charge error, appellant must have suffered actual harm and not just merely

theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v.

State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

B.      Discussion

        At the charge conference, appellant objected to the court’s charge and requested

that the jury be instructed on “unlawful conduct.” Appellant tendered a proposed

charge, which incorporated his definition of “unlawful conduct.”         The trial court

Johnson v. State                                                                   Page 13
overruled appellant’s objection, declined to issue appellant’s proposed jury charge, and

subsequently charged the jury. Thereafter, during deliberations, the jury submitted a

note to the trial court requesting a definition for “lawful force.” Appellant once again

requested that the charge incorporate his instruction on “unlawful conduct,” but the

trial court declined to do so. Nevertheless, appellant admits on appeal that the “record

fairly reflects that the trial court submitted Texas Penal Code Section 9.53 on a

correctional officer’s justification of force to the jury” (footnote omitted).

        Assuming, without deciding, that it was error for the trial court to not issue

appellant’s instruction regarding “unlawful conduct,” we do not believe that the

purported error caused harm to appellant. As we have already concluded, there is no

evidence that would support a rational conclusion that Assistant Warden Brewer and

Officer Reinke were unlawfully discharging their official duties at the time appellant

punched them.      And because there is no evidence that correctional officers acted

unlawfully at the time of the assaults, we cannot say that appellant was harmed by the

absence of his instruction on “unlawful conduct” in the jury charge. See Sanchez, 376

S.W.3d at 775 (stating that the presence of overwhelming evidence may be considered

when assessing jury-charge error) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim.

App. 1989)); Almanza, 686 S.W.2d at 171 (noting that harm caused by jury-charge error

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

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

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

whole”); see also Remsburg v. State, 219 S.W.3d 541, 545 (Tex. App.—Texarkana 2007, pet.

Johnson v. State                                                                   Page 14
ref’d) (“Conversely, the defendant is not entitled to an instruction that is not raised by

the evidence.”). Accordingly, we overrule appellant’s second issue.

                                     IV.    CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgments of the trial

court.




                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 14, 2013
Do not publish
[CR25]




Johnson v. State                                                                   Page 15
