Opinion issued February 11, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00768-CR
                            ———————————
                   ROBERT WAYNE ROLLINS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 405th District Court
                         Galveston County, Texas
                      Trial Court Case No. 13CR3062


                          MEMORANDUM OPINION

      A jury convicted Robert Wayne Rollins of assault against a public servant.

Rollins pleaded true to two enhancement paragraphs, and the jury assessed his

punishment at 28 years’ imprisonment.        On appeal, he contends that (1) the

evidence against him is legally insufficient to support his conviction; (2) the jury
charge was erroneous; and (3) his trial counsel was ineffective. Rollins also

disputes the trial court’s certification that a video exhibit submitted for our review

is the same exhibit admitted at trial. Finding no reversible error, we affirm.

                                 BACKGROUND

      Galveston police officer Gregory Parris was on evening patrol in a marked

police car. As he approached an intersection while traveling north, he heard loud

music nearby. Parris determined that the music was coming from a tan Buick. He

stopped his patrol car and waited for the Buick to pass. As the Buick drove by,

Parris pulled behind him and activated his lights and siren. Rollins passed several

driveways before turning off on a side street and into the parking lot of an adjacent

gas station. As Rollins rolled past the gas station’s automatic car wash, Parris

ordered Rollins to stop, using his patrol car’s external loudspeaker.            Rollins

stopped his car, and Parris parked behind him.

      Parris approached the Buick’s driver side door on foot with his gun drawn at

his side.   Parris examined the interior of the car with a flashlight.           Rollins

commented that he had his kids in the car and needed to call his wife. Rollins

handed a bag of marijuana to Parris, telling him “this is what I got.” Parris took

the marijuana and ordered Rollins to get out of the car. Rollins did not cooperate

immediately, digging through papers in the Buick’s center console. Rollins then

“dove” into the passenger side foot well. According to Rollins, he did so to



                                          2
retrieve his cell phone so he could call his wife, but Parris testified that he thought

that Rollins might be reaching for a gun. Parris dove into the car to pull Rollins

out. According to Parris’s testimony, Rollins responded by “kicking, pushing,

[and] swinging his head around.”        Parris dragged Rollins out of the car and

attempted to force Rollins to the ground so he could handcuff him.             Rollins

resisted, attempting repeatedly to get up while Parris, who was shorter than

Rollins, struggled to wrestle him to the ground. The grappling continued for more

than a minute, eventually moving out of the view of Parris’s dashboard camera. At

one point in the fight, Rollins’s head struck Parris’s face, injuring his nose. During

the encounter, Parris felt his left knee pop. Parris finally subdued Rollins with a

taser, testifying that he was “gassed out” and couldn’t fight any more.

      Additional police officers arrived to take over the scene. They photographed

Parris’s and Rollins’s injuries, and transported Officer Parris to the hospital. The

police officers found suspicious substances on the pavement, under the Buick’s

rear tire, by the driver’s door, and on the driver’s seat. These substances were later

identified as crack cocaine and methamphetamine.

      At the hospital, Parris was found to have suffered injuries to both knees,

which required two surgeries and rehabilitation. Parris’s nose was bloodied, and

his hands were scraped. Parris suffered some permanent loss of function in his

right knee.



                                          3
      A grand jury indicted Rollins for assault against a public servant, enhanced

by a prior felony conviction for delivery of a controlled substance. At trial, Parris

testified against Rollins. The State introduced Parris’s dashboard camera video,

and presented expert testimony identifying the drugs found near Rollins’s car. The

State’s theory at trial was that Rollins resisted arrest to afford himself time to

dispose of the cocaine and methamphetamine discovered at the scene. In doing so,

the State argued, Rollins recklessly injured Parris.

      Rollins testified in his own defense. He admitted to resisting arrest, but

denied kicking Parris or acting recklessly with regard to Parris’s safety.        He

explained that he handed over the marijuana immediately because he knew that he

had warrants out and that he would be arrested. Rollins claimed that he leaned into

the passenger side footwell because his cell phone was there and he thought he had

an understanding with Parris that he could call his wife. According to Rollins, he

acted out of concern for his children in the back seat. Attempting to present

himself as a forthright person working to overcome his criminal past, Rollins

admitted to his two prior felony convictions. Rollins also admitted that he had

codeine cough syrup, purchased without a prescription, in the car’s center console.

      The jury returned a guilty verdict. In the punishment phase, Rollins pled

true to two felony enhancements, both for delivery of a controlled substance. The

jury assessed punishment at 28 years’ imprisonment. Rollins brought a motion for



                                          4
new trial on the sole ground that his trial counsel was ineffective for failing to

request a jury instruction on self-defense.     He supported this motion with an

affidavit by his trial counsel averring that her failure to request a self-defense

instruction was not trial strategy but was merely an oversight. The trial court

denied Rollins’s motion.

      After this appeal was filed, Rollins informed us in a motion to abate that the

court reporter at trial could not find the dashboard camera video, admitted as

State’s Exhibit No. 1. After some delay, the trial court’s current court reporter

discovered a video disc labeled “State Exhibit No. 1, State of Texas versus Robert

Rollins” in the court’s exhibit closet. The trial court held a verification hearing

pursuant to Rule of Appellate Procedure 34.6(f) to determine whether the disc was

an accurate duplicate of the trial exhibit. The court found that the disc was the

original exhibit, and the court reporter filed it as a supplement to the reporter’s

record.

                                  DISCUSSION

I. Verification Hearing

      On appeal, Rollins first contends that the trial court erred in finding that the

video disc found in the trial court’s exhibit room was the dashboard camera video

exhibit admitted at trial. Under Texas Rule of Appellate Procedure 34.6(e), we

may submit a dispute over the accuracy of the reporter’s record to the trial court,



                                          5
which must then settle the dispute after notice and a hearing. TEX. R. APP. P.

34.6(e)(2). When the appellant alleges that a significant exhibit has been lost or

destroyed, Rule 34.6(f) entitles him to a new trial:

             (1) if the appellant has timely requested a reporter’s
             record;
             (2) if, without the appellant’s fault, a significant exhibit
             or a significant portion of the court reporter’s notes and
             records has been lost or destroyed or—if the proceedings
             were electronically recorded—a significant portion of the
             recording has been lost or destroyed or is inaudible;
             (3) if the lost, destroyed, or inaudible portion of the
             reporter’s record, or the lost or destroyed exhibit, is
             necessary to the appeal’s resolution; and
             (4) if the lost, destroyed or inaudible portion of the
             reporter’s record cannot be replaced by agreement of the
             parties, or the lost or destroyed exhibit cannot be
             replaced either by agreement of the parties or with a copy
             determined by the trial court to accurately duplicate with
             reasonable certainty the original exhibit.

TEX. R. APP. P. 34.6(f). In reviewing a trial court’s findings about the authenticity

of the record, we defer to the trial court’s determination of historical facts,

provided that those facts are supported by the evidence adduced at the hearing. See

Tucker v. State, 369 S.W.3d 179, 183 (Tex. Crim. App. 2012) (citing Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); State v. Webb, 244 S.W.3d 543,

547 (Tex. App.—Houston [1st Dist.] 2007, no pet.). The trial court may make its




                                          6
factual determinations as to the authenticity of an exhibit based on affidavits. See

Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002).

      At the hearing, the parties presented conflicting affidavits on the video disc’s

authenticity. The State presented an affidavit by its current trial court reporter that

she found the video disc in the evidence closet used by the former court reporter at

the time of the trial, to which only she and the former court reporter had access.

The State also introduced affidavits from the former court reporter, the trial

prosecutor, Officer Parris, and Rollins’s trial counsel, which confirmed that the

video disc found in the court’s exhibit room was the one admitted at trial.

      Rollins presented a contradictory affidavit, in which he contended that the

video found differed from the one at trial. He stated that the original video

reflected that Officer Parris used greater force than the one proffered at the

authenticity hearing, and thus that the new video was inconsistent with the old one.

Here, as in Manzi, the trial court was called upon to determine historical facts from

conflicting affidavits; namely, whether the video disc found in the closet was the

missing exhibit. See Manzi, 88 S.W.3d at 244. Because the State’s affidavits

contain specific facts that support the trial court’s determination that the video

exhibit is authentic, we cannot say that the trial court erred in crediting them.

Manzi, 88 S.W.3d at 244; Tucker, 369 S.W.3d at 183. Accordingly, we conclude




                                          7
that the video submitted in the supplemental record is part of the record on appeal

submitted for our consideration of this case.

II. Sufficiency of the Evidence

      Rollins next contends that the evidence presented at trial is not legally

sufficient to support his conviction for assault on a public servant. Specifically,

Rollins contends that the evidence does not prove that he acted recklessly or

voluntarily such that his acts resulted in Parris’s injuries.

A.    Standard of Review

      Under the standard of review for legal sufficiency challenges, the evidence

is insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). The factfinder must resolve conflicts in the testimony,

weigh the evidence, and draw reasonable inferences from basic facts. Murray v.

State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (citing Jackson, 443 U.S. at

319, 99 S. Ct. at 2789). For review, we determine whether necessary inferences

are reasonable in light of the combined and cumulative force of all the evidence,



                                            8
viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). We presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. See

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We also

defer to the factfinder’s evaluation of the credibility and weight of the evidence.

Williams, 235 S.W.3d at 750.

B.    Analysis

      As charged in the indictment, a person commits assault by intentionally,

knowingly, or recklessly causing bodily injury to another. TEX. PENAL CODE ANN.

§ 22.01(a)(1) (West 2011 & Supp. 2015).         Assault is ordinarily a Class A

misdemeanor, but it is a third-degree felony if the assault is committed against a

public servant while the public servant is lawfully discharging an official duty.

Id. § 22.01(b)(1). “Bodily injury” means “physical pain, illness, or any impairment

of physical condition.”   Id. § 1.07(a)(8) (West 2011 & Supp. 2015).        “Even

relatively minor physical contact may constitute an assault if it constitutes more

than offensive touching.” Laster, 275 S.W.3d at 524 (citing Lane v. State, 763

S.W.2d 785, 786 (Tex. Crim. App. 1989)). To have committed a crime, however,

a person must have voluntarily engaged in the conduct causing the injury, whether

it is an act, an omission, or possession. TEX. PENAL CODE ANN. § 6.01(a) (West

2011).   The concept of voluntariness refers to a person’s physical body



                                         9
movements, which must be the product of his will, not of a “physical reflex or

convulsion,” nor of “unconsciousness, hypnosis, or other nonvolitional

impetus . . . .” Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014)

(quoting Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003)). The

voluntariness requirement is distinct from the mens rea requirement, which

additionally requires that the defendant acted intentionally, knowingly, or

recklessly. See TEX. PENAL CODE ANN. § 22.01(a)(1); Whatley, 445 S.W.3d at

166.

       “A person acts recklessly . . . when he is aware of but consciously disregards

a substantial and unjustifiable risk . . . that the result will occur.” TEX. PENAL

CODE ANN. § 6.03(c).       A person’s culpable mental state may be shown by

circumstantial evidence. Bounds v. State, 355 S.W.3d 252, 255 (Tex. App.—

Houston [1st Dist.] 2011, no pet.); Tottenham v. State, 285 S.W.3d 19, 28 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).

       Rollins argues that the record does not support a finding that he acted

recklessly. Parris’s testimony and the dashboard camera video, however, depict a

physical struggle in which Rollins vigorously resists arrest for more than a minute.

Where a struggle occurs in which a police officer is injured, recklessness may be

implied from the defendant’s continued struggling. In Gumpert v. State, when

police officers attempted to handcuff the defendant, he flailed and struggled,



                                         10
knocking off a police officer’s eyeglasses, dragging two officers to the ground, and

kicking the officers while the three men were on the ground. 48 S.W.3d 450, 453

(Tex. App.—Texarkana 2001, pet. ref’d). Gumpert was convicted of assault on a

public servant. Id. at 452. On appeal, he contended that the trial court should have

given a lesser-included offense instruction for resisting arrest. Id. The Texarkana

Court of Appeals held that the facts did not justify the lesser-included offense

instruction, reasoning that the evidence “showed that Gumpert recklessly caused

bodily injury in disregarding the substantial non-justifiable risk that his struggling,

flailing about, and kicking could result in bodily injury to [the police officer] . . . .”

Id. at 454 (citing Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001)).

Similarly, in this case, Parris testified that Rollins pushed, kicked, and head-butted

him while he tried to restrain Rollins. The jury reasonably could have inferred

from the extent to which Rollins resisted that he knew he unreasonably risked

injuring Parris. See Bounds, 355 S.W.3d at 255; Clayton, 235 S.W.3d at 778;

Gumpert, 48 S.W.3d at 453.

      Rollins also argues that the record does not support a finding that he caused

any of Parris’s injuries by specific voluntary actions. Thus, for example, because

the State could not attribute Parris’s knee injuries to a single, discrete action by

Rollins, the evidence must be insufficient to hold Rollins culpable. The Penal

Code premises criminal liability on a voluntary act by the defendant. See TEX.



                                           11
PENAL CODE ANN. § 6.01(a). However, the statute defining assault does not

require that the defendant exert force against the victim in a specific way to cause

the victim’s injury. See id. § 22.01(a); Morales v. State, 293 S.W.3d 901, 908

(Tex. App.—Texarkana 2009, pet. ref’d). All that is required is that the defendant

cause bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a). Officer Parris

testified that Rollins pushed and kicked at him when Parris tried to pull Rollins out

of the car. Their physical struggle resulted in injuries to Parris’s knees, in addition

to other minor injuries. While the knee injuries may not be attributable to one

specific act, the jury could conclude that the injuries were the result of the overall

physical struggle resulting from Rollins’s use of force. See TEX. PENAL CODE

ANN. §§ 6.01(a), 22.01(a); Whatley, 445 S.W.3d at 166; Morales, 293 S.W.3d at

910.

       III. Jury Charge Error

       Rollins next contends that the trial court erred in failing to instruct the jury

that it must be unanimous as to which of Parris’s injuries Rollins caused serious

bodily injury and that, under Section 2.05(a) of the Penal Code, any presumption

made must be based on facts found beyond a reasonable doubt.

       A. Standard of Review

       When reviewing a trial court’s jury charge, we first determine whether an

error in the charge exists. Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.—



                                          12
Houston [1st Dist.] 1991, pet. ref’d). If error exists, then we determine whether the

error was harmful, if the defendant objected to the error at trial; if no objection was

made, then we determine whether the error was egregiously harmful. Reeves v.

State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (emphasis in original)). Egregious harm

results from errors that affect “the very basis of the case,” “deprive the defendant

of a valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175

S.W.3d 738, 750 (Tex. Crim. App. 2005). Because Rollins raised neither of these

objections at trial, we review any charge error under the “egregious harm”

standard. See id.

      B. Unanimity

      Rollins argues that the trial court should have instructed the jury that it must

be unanimous as to which injuries Rollins caused. Rollins reasons that because

certain jurors might have believed that Rollins injured Parris’s knees and others

might have believed that Rollins injured Parris’s face or hands, Rollins was denied

a unanimous verdict that he caused any particular injury to Parris.

      The Texas Constitution and the Code of Criminal Procedure require that the

jury in a criminal case reach a unanimous verdict. TEX. CONST. art. V, § 13; TEX.

CODE CRIM. PROC. ANN. art. 36.29(a) (West 2011); Ngo v. State, 175 S.W.3d at

745 (Tex. Crim. App. 2005). Unanimity means that the jurors must agree that the



                                          13
defendant committed one specific crime. See Landrian v. State, 268 S.W.3d 532,

535 (Tex. Crim. App. 2008). The jurors need not, however, agree on the manner

or means by which the crime was committed. Young v. State, 341 S.W.3d 417, 422

(Tex. Crim. App. 2011). When alternate theories of committing the same offense

are submitted to the jury in the disjunctive, and the jury is required by the charge to

find each element of the offense beyond a reasonable doubt, it is appropriate for

the jury to return a general verdict if the evidence is sufficient to support a finding

under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.

Crim. App. 1991).

      Section 22.01 of the Penal Code defines assault by bodily injury as

“intentionally, knowingly, or recklessly caus[ing] bodily injury to another.” TEX.

PENAL CODE ANN. § 22.01(a)(1) (West 2011 & Supp. 2015). Thus, the gravamen

of the offense of assault by bodily injury is “causing bodily injury.” See Landrian,

268 S.W.3d at 536–37. For a result-oriented offense like bodily injury assault, the

precise nature of the act alleged is inconsequential. Id. “What matters is that the

conduct (whatever it may be) is done with the required culpability to effect the

result the Legislature has specified.” Id. (quoting Alvarado v. State, 704 S.W.2d

36, 39 (Tex. Crim. App. 1985)).

      The indictment in this case charges Rollins with “intentionally, recklessly, or

knowingly caus[ing] bodily injury to Gregory Parris . . . .” A person commits



                                          14
assault by bodily injury by intentionally, knowingly, or recklessly causing, by his

or her voluntary action, bodily injury to a person. See TEX. PENAL CODE ANN.

§§ 6.01(a), 22.01(a)(1); Landrian, 268 S.W.3d at 536–37.         Because striking

Parris’s face or scraping his hands on the ground are merely alternative means by

which he may have been injured, unanimity was not required, and the trial court

did not err. See TEX. PENAL CODE ANN. §§ 6.01(a), 22.01(a)(1); Landrian, 268

S.W.3d at 536–37.

      C. Section 2.05 Instruction

      Rollins further contends that the trial court erred by not including an

instruction under Section 2.05 of the Penal Code. The State concedes that the trial

court erred, but argues that the error was harmless.

      Section 2.05(a)(2) of the Penal Code requires that the trial court give the

following instructions when the jury is asked to apply a presumption with regard to

any fact:

             (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


                                         15
             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 ANN. § 2.05(a)(2) (West 2011). In this case, the jury was

instructed to presume that Rollins knew that Parris was a public servant “if [Parris]

was wearing a distinctive uniform or badge indicating [Parris’s] employment as a

public servant or status as a security officer.” See id. § 22.01(d). Thus, Rollins

was entitled to an instruction under Section 2.05. See id. § 2.05(a)(2). The State

concedes, and we find, that the trial court did not give the Section 2.05 instruction,

and thus it erred. See id. Because Rollins did not object to this error at trial, he

must show that the error was “fundamental” and that he was egregiously harmed to

be entitled to relief. Reeves, 420 S.W.3d at 816.

      Rollins concedes that he did not contest Rollins’s status as a public servant

at trial. He suggests, however, that he was harmed because if the Section 2.05

instruction were given, the jury could have found that Parris was acting beyond his

lawful authority. For example, Rollins refers to Parris “dragging” him out of the

car, and he suggests that he struggled with Parris because Parris put him in a

“chokehold.” However, we find in the record no accusation that Parris committed

police misconduct or acted outside his lawful authority. In his closing argument,

                                         16
Rollins conceded that he was wrong to have resisted arrest. Because the evidence

adduced at trial is incompatible with any jury finding that Parris acted beyond his

authority, Rollins was not egregiously harmed by the trial court’s error.          See

Reeves, 420 S.W.3d at 816; Almanza, 686 S.W.2d at 171.

      IV. Ineffective Assistance of Counsel

      Finally, Rollins contends that his trial counsel was ineffective because she

failed to (1) request a self-defense instruction; (2) request a lesser-included offense

instruction for resisting arrest; (3) request a voluntariness instruction; and (4)

object to the admission of evidence that he possessed drugs.

      A. Standard of Review

      Strickland v. Washington sets the standard of review for claims of

ineffective assistance of counsel. 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69

(1984); accord Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To

prevail, Rollins must first show that his counsel’s performance was deficient.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833.

Specifically, Rollins “must prove, by a preponderance of the evidence, that his

counsel’s representation fell below the objective standard of professional norms.”

Bone, 77 S.W.3d at 833.         Second, Rollins “must show that this deficient

performance prejudiced his defense,” meaning that he “must show a reasonable

probability that, but for his counsel’s unprofessional errors, the result of the



                                          17
proceeding would have been different.” Id. Thus, the “benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. In

assessing counsel’s performance, we consider the entire representation, indulging a

strong presumption that the attorney’s performance falls within the wide range of

reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). If we can imagine any strategic motivation for counsel’s

conduct, we presume that counsel acted for strategic reasons. Thompson v. State,

445 S.W.3d 408, 411 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citing

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Further, a claim of

ineffective assistance must be firmly supported in the record. Thompson, 9 S.W.3d

at 813.

      B. Self-Defense Instruction

      Rollins points to his trial counsel’s affidavit from his motion for new trial, in

which his trial counsel avers that her failure to request an instruction on self-

defense was an oversight, not a strategic choice.

      Section 9.31(c) of the Penal Code states:

             The use of force to resist an arrest or search is justified:
             (1) if, before the actor offers any resistance, the peace
             officer (or person acting at his direction) uses or attempts


                                          18
               to use greater force than necessary to make the arrest or
               search; and (2) when and to the degree the actor
               reasonably believes the force is immediately necessary to
               protect himself against the peace officer’s (or other
               person’s) use or attempted use of greater force than
               necessary.

TEX. PENAL CODE ANN. § 9.31(c) (West 2011). The defendant has the right to an

instruction on any defensive issue raised by the evidence, whether the evidence

supporting it is strong or weak, unimpeached or contradicted, and regardless of

what the trial court might think of the evidence. Denman v. State, 193 S.W.3d 129,

134 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Miller v. State, 815 S.W.2d

582, 585 (Tex. Crim. App. 1991). To be entitled to a self-defense instruction, a

defendant must first admit that he committed the offense, offering self-defense as a

justification. Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim. App. 2004) (citing

Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999)). Counsel is not

ineffective for failing to request an instruction to which the defendant is not

entitled. See Nailor, 149 S.W.3d at 133.

        Rollins was not entitled to a self-defense instruction. In Nailor, an assault

case, the defendant claimed that the victim threatened him by raising a brass eagle

over his head. Id. at 128. Per his account, he raised his arms to protect himself,

and in doing so, knocked the eagle out of the victim’s hands and on the victim’s

head.    Id.    The defendant claimed that his counsel was ineffective for not


                                           19
requesting a self-defense instruction. Id. at 132. The Court of Criminal Appeals

held that the defendant was not entitled to a self-defense instruction. Id. at 134.

The court reasoned that because the defendant had argued that he lacked the

required intent, he had not admitted to having committed the assault.             Id.

Similarly, in this case, Rollins denied having the necessary intent, recklessness, to

be guilty of assault. Thus, he did not admit to assaulting the officer and may not

claim self-defense in the jury charge. See id.

      Rollins cites Torres v. State for the proposition that to be entitled to a

self-defense instruction, a defendant need not admit to the particular offense

charged, as long as he sufficiently admits the conduct alleged. 7 S.W.3d 712 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d). Rollins argues that because he

admitted to resisting arrest, he was entitled to a self-defense instruction. Torres,

however, is not applicable here. In Torres, the defendant, who was accused of

assaulting his wife, admitted to grabbing his wife by the hair and to pushing her

away. Id. at 716. He did not deny that these actions were intentional, arguing

instead that he was trying to defend himself. Id. at 714. Rollins, by contrast,

denied that he acted with the necessary mental state; that is, with intent to cause

bodily injury to Parris or with recklessness as to injuring Parris. As the Court of

Criminal Appeals observed in Shaw v. State, “with respect to defenses such as

necessity and self defense . . . when the defensive evidence merely negates the



                                         20
necessary culpable mental state, it will not suffice to entitle the defendant to a

defensive instruction. Rather, a defensive instruction is only appropriate when the

defendant’s defensive evidence essentially admits to every element of the offense

including the culpable mental state, but interposes the justification to excuse the

otherwise criminal conduct.”      243 S.W.3d 647, 659 (Tex. Crim. App. 2007).

Rollins admitted that he resisted arrest, but testified that he did not intentionally or

recklessly cause injury to Parris. Because Rollins did not admit that he recklessly

caused bodily injury to Parris, his counsel was not ineffective for failing to request

a self-defense instruction. See Shaw, 243 S.W.3d at 659; Nailor, 149 S.W.3d at

134; Young, 991 S.W.2d at 839.

      C. Lesser-Included Offense Instruction

      Rollins complains that his counsel was ineffective for failing to request a

lesser-included offense instruction for resisting arrest. Because counsel is not

ineffective for failing to request a jury instruction to which the defendant is not

entitled, we must first determine whether Rollins was entitled to the instruction.

See Nailor, 149 S.W.3d at 134. We use a two-pronged test to determine whether a

defendant is entitled to an instruction on a lesser-included offense. See Guzman v.

State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006); Salinas v. State, 163

S.W.3d 734, 741 (Tex. Crim. App. 2005).




                                          21
      The first step is to determine “whether an offense is a lesser-included

offense of the alleged offense.” Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim.

App. 2007); Salinas, 163 S.W.3d at 741.          In doing so, we use the “cognate

pleadings” approach, under which the first prong is met if the indictment for the

greater 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.” Ex

parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). This

determination is a determination of law, and “[i]t does not depend on the evidence

to be produced at trial.” Hall, 225 S.W.3d at 535. A person commits the offense

of resisting arrest by intentionally preventing or obstructing a person who he

knows is a peace officer from effecting an arrest by using force against the peace

officer or another. TEX. PENAL CODE ANN. § 38.03 (West 2011). A person

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

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

while that public servant is discharging an official duty. Id. § 22.01(b)(1); Clark v.

State, 461 S.W.3d 244, 246 (Tex. App.—Eastland 2015, pet. ref’d). Conviction for

resisting arrest requires proof of intent, whereas assault on a public servant only

requires proof of recklessness. Compare TEX. PENAL CODE ANN. § 38.03 with id.



                                          22
§ 22.01(b)(1). Thus, because resisting arrest requires proof of an element that

assault on a public servant does not, and the missing element of intent does not

appear in the indictment, resisting arrest is not a lesser-included offense of assault

on a public servant as it was pleaded in this case. See Watson, 306 S.W.3d at 273;

Hall, 225 S.W.3d at 535.

         Rollins’s reliance on Ortega v. State is misplaced. 171 S.W.3d 895 (Tex.

Crim. App. 2005). In Ortega, the Court of Criminal Appeals held that according to

the statutes alone, resisting arrest was not a lesser-included offense of assault on a

public servant because “the offense of resisting arrest required proof of a fact that

the offense of assault did not: that the appellant prevented or obstructed a peace

officer from effecting an arrest.” Id. at 900. Rollins notes that when the statutory

definition of a crime does not include every element of the alleged lesser-included

offense, an instruction may still be justified if the missing elements are alleged as

facts in the indictment. See Watson, 306 S.W.3d at 273. He reasons that because

the indictment in this case alleged that he resisted arrest, resisting arrest was a

lesser-included offense as charged in the indictment, if not by statute alone.1 Id.

The court in Ortega, however, did not hold that resisting arrest was the only

missing element. Ortega, 171 S.W.3d at 900. Rather, by noting that “at least one


1
    The indictment charges Rollins with “physically resisting . . . Gregory Parris . . . and
         that the said Gregory Parris was then and there . . . attempting to detain and or
         secure and or arrest and or control the said Robert Rollins . . . .”

                                              23
[element]” was missing, the court left open the possibility that the offense of

resisting arrest required proof of other elements that assault on a public servant did

not. Id. (emphasis added). As noted above, resisting arrest requires proof of

intent, whereas a mental state of knowledge or recklessness may support a

conviction for assault on a public servant. See Watson, 306 S.W.3d at 273; Hall,

225 S.W.3d at 535. Because Rollins was not entitled to an instruction on the

offense of resisting arrest, we hold that Rollins’s trial counsel was not ineffective

for failing to request a lesser-included offense instruction. Nailor, 149 S.W.3d at

134.

       D. Voluntariness Instruction

       Rollins contends that his trial counsel was ineffective because she did not

request a jury instruction on voluntariness.

       Section 6.01 of the Penal Code provides that a person only commits an

offense if he voluntarily engages in conduct, either by an act, omission, or

possession. TEX. PENAL CODE ANN. § 6.01. To support a conviction, the State

must prove that the defendant committed a criminal act voluntarily, with the

required mental state. See Alford v. State, 866 S.W.2d 619, 622 (Tex. Crim. App.

1993). The issue of the voluntariness of a person’s conduct is independent of the

issue of the person’s mental state, such as whether he acted intentionally,

knowingly, or recklessly. See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim.



                                          24
App. 2014). The concept of voluntariness refers only to a person’s physical body

movements, which must be a product of one’s will, and not of a “nonvolitional

impetus.” Id. (quoting Rogers, 105 S.W.3d at 638).

      Rollins suggests that because a jury could have believed that he did not

cause Parris’s injuries voluntarily, his trial counsel should have requested a

voluntariness instruction. He notes, for example, that his head might have struck

Parris’s face accidentally when Parris was throwing him around, and that Parris’s

knees could have been injured by Parris’s efforts to wrestle him to the ground, not

Rollins’s movements.

      If a defendant engages in a voluntary act and has the required mental state,

however, his conduct is not rendered involuntary simply because his conduct also

includes an involuntary act. See Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.—

Houston [14th Dist.] 1992, pet. ref’d). In the Cruz case, our sister court was

presented with a similar dilemma of an altercation that resulted in an allegedly

involuntarily caused injury. See Cruz, 838 S.W.2d at 683–84. Cruz, a prison

inmate, became angry when he discovered that prison guards were “shaking down”

his cell. Id. at 684. Cruz, whose hands were cuffed behind his back, began cursing

at the guards. Id. He kicked one officer, and a melee ensued. Id. When the

guards managed to pull the handcuffed Cruz to the ground, he fell on top of

another guard. Id. Galloway, the guard he fell on, suffered a dislocated shoulder.



                                        25
Id. Cruz was charged with assaulting Galloway. Id. at 683. The Fourteenth Court

of Appeals held that Cruz committed the required voluntary act by instigating the

altercation; the fact that the particular movement that injured Galloway was not

voluntary was irrelevant. Id. at 686. Similarly, in this case, Rollins started a

physical struggle by resisting Parris’s efforts to arrest him. Rollins admitted that

he did not get out of the car when Parris asked, and that he resisted when Parris

attempted to wrestle him to the ground. Thus, even if the individual movements of

his body that injured Parris were involuntary as he alleges, Rollins would not be

entitled to a voluntariness instruction, and his trial counsel was not ineffective for

not requesting one. See Whatley, 445 S.W.3d at 166; Nailor, 149 S.W.3d at 134;

Cruz, 838 S.W.2d at 686.

      E. Evidentiary Objection

      Rollins lastly complains that because his trial counsel did not object to the

admission of the cocaine and methamphetamine found in and near his car after he

was arrested, he received ineffective assistance.

      Evidence of extraneous crimes may be admissible if (1) the uncharged act is

relevant to a material issue in the case and (2) the probative value of that evidence

is not significantly outweighed by its prejudicial effect. Segundo v. State, 270

S.W.3d 79, 87 (Tex. Crim. App. 2008). Texas Rule of Evidence 404(b) prohibits

the admission of evidence of extraneous crimes to prove the defendant’s propensity



                                         26
to commit bad acts. TEX. R. EVID. 404(b). However, such evidence may be

admissible for other purposes, such as to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Id.

Rebutting a defensive theory is a permissible purpose under Rule 404(b). Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Even if evidence of

extraneous crimes would be admissible under Rule 404(b), Rule 403 may preclude

its admission if its probative value is substantially outweighed by the danger of

prejudice. See TEX. R. EVID. 403. In undertaking the Rule 403 analysis, a trial

court must balance (1) the inherent probative force of the proffered evidence along

with (2) the proponent’s need for that evidence against (3) the evidence’s tendency

to suggest decision on an improper basis, (4) its tendency to confuse or distract the

jury from the main issues, (5) its tendency to be given undue weight by a jury not

equipped to evaluate its probative force, and (6) the likelihood that introducing the

evidence will be duplicative of other evidence or waste too much time.

Giglioblanco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

      Rollins’s counsel was not ineffective for failing to object to admission of the

drugs because the drugs were admissible to prove motive, and their probative value

outweighed their potential for prejudice.      See Segundo, 270 S.W.3d at 87.

According to the State’s theory of the case, Rollins resisted arrest to attempt to

dispose of the cocaine and methamphetamine later found at the scene. The State



                                         27
could introduce evidence of the drugs to support this theory, and to rebut Rollins’s

testimony that he resisted to ensure the safety of his children. See Williams, 301

S.W.3d at 687; Giglioblanco, 210 S.W.3d at 641–42. Further, the trial court gave a

limiting instruction. See Herrera v. State, 11 S.W.3d 412, 415–16 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (citing Hutch v. State, 922 S.W.2d 166, 172

(Tex. Crim. App. 1996)) (“[A] jury is presumed to follow the instructions set forth

in the court’s charge.”). Any prejudice resulting to Rollins was outweighed by the

probative value of motive for resisting, which Rollins contested at trial. See

Giglioblanco, 210 S.W.3d at 641–42 (balancing prejudice against the evidence’s

probative value and the other party’s need to introduce it). Thus, we conclude that

the cocaine and methamphetamine were properly admissible, and that Rollins’s

trial counsel was not ineffective for failing to object to their admission. See TEX.

R. EVID. 403, 404(b); Williams, 301 S.W.3d at 687; Segundo, 270 S.W.3d at 87;

Giglioblanco, 210 S.W.3d at 641–42; Nailor, 149 S.W.3d at 134.




                                        28
                                    Conclusion

      Finding no reversible error, we affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Do not publish. See TEX. R. APP. P. 47.2(b).




                                         29
