


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-03-00147-CV
 
Andrew Davidoff,
                                                                      Appellant
 v.
 
GX Technology Corporation,
                                                                      Appellee
 
 
 

From the 270th District Court
Harris County, Texas
Trial Court No. 01-58745
 

order





 
          Appellee’s motion for rehearing is
denied.  The opinion and judgment dated March 23, 2005 are withdrawn, and the
opinion and judgment of even date herewith are substituted therefor.
PER CURIAM
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Order issued and filed
August 17, 2005
[CR25]
 


#160;        Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 2000-956-C
                                                                                                                
                                                                                                         
O P I N I O N
                                                                                                                

      Willie Frank Campbell was indicted for using a handgun (a deadly weapon) to threaten Waco
Police Officer Benjamin Rush with imminent bodily injury while Rush was attempting to arrest
Campbell—a first degree felony.  Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2) (Vernon 1994). 
A jury convicted Campbell, and he was sentenced to thirty-three years in prison.  He brings four
issues on appeal, asserting:
      1.   The evidence is legally insufficient to support the conviction.
 
      2.   His due process rights were violated because section 22.02 and the indictment refer to
assault on a “public servant,” but the indictment, charge, and verdict form refer to
assault on a “peace officer” and a “police officer,” and therefore the jury did not find
him guilty of the offense as alleged.
 
      3.   The trial court’s deadly weapon finding should be set aside because of the mistake
complained about in issue two.
 
      4.   The trial court erred by denying a jury charge instruction on a lesser-included offense of
resisting arrest using a deadly weapon, a third-degree felony. 

      We will reverse the judgment based on Campbell’s issue about the lesser-included offense.
Facts
      Campbell was wanted on outstanding warrants.  He was spotted, on foot, by law enforcement
officers.  Officer Rush testified that he chased Campbell, and when he caught up to him, Campbell
had his hands in his pockets as though he was attempting to discard something; he dropped
something on the ground.  Then Rush grabbed him around the upper body and tried to pull him
down.  Campbell resisted, “kind of hump[ed] over,” and said “get back.”  Then, according to
Rush, Campbell “kind of start[ed] straightening back up and [he had] a gun in his hand.”  Rush
testified:
 
He’s got the gun in his hand and I’ve got him around his arm like this so he - I’m kind of -
I’m squeezing him, I’m like, “I’ve got to get away from him now,” because I can’t defend
myself because my arms are up around the top of him.  So he’s got the gun in his hand and
he starts - he’s trying to turn to his left.  When he turned to the left I just let him keep coming
and when he comes to the left, he’s got the gun up like this. . . . I just keep coming with him
and I just kind of just shove him into the wall. . . . I tried to get my distance from him . . ..

      Campbell argues that he never threatened the officer, but rather at most attempted to do so. 
Campbell testified that when Rush “bearhugged” him from behind, he tried to get away. 
Campbell bent over, and Rush was on Campbell’s back.  Finally, Rush pushed Campbell away. 
Campbell testified: I “had a gun in my hand and I was running down the breezeway and that’s
when I threw [the gun] on top of the roof.”  He said he pulled out the gun only as he began to run,
and his purpose was to get rid of it.  He denied ever saying “get back.”
      After the struggle with Rush, Campbell ran, discarding the gun along the way.  Rush again
pursued Campbell and eventually caught and arrested him.  The gun was retrieved, and there was
evidence it was not loaded.
Legal Sufficiency of the Evidence
      In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable
to the verdict and determine whether a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.  Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App.
1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)).  We consider all the evidence, both direct and circumstantial, including
evidence improperly admitted.  Logan v. State, 48 S.W.3d 296, 299 (Tex. App.—Texarkana 2001)
(citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)), aff’d, 89 S.W.3d 619
(Tex. Crim. App. 2002).
      As indicted, the statutory elements of aggravated assault applicable in this case are:
      1.   intentionally or knowingly threatening another with imminent bodily injury (the assault);
 
      2.   using or exhibiting a deadly weapon during the commission of the assault; and
 
      3.   committing the assault against a person the actor knows is a public servant while the
public servant is lawfully discharging an official duty
Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2).  Campbell was not charged with the alternate manner
of committing this offense, i.e., causing serious bodily injury during an assault on a public servant
(no deadly weapon element).  Id. § 22.02(a)(1).
      Although Campbell refuted some of Rush’s testimony, there was evidence that Campbell and
Rush scuffled and that Campbell produced a gun and said “get back.”  When we view all the
evidence in the light most favorable to the verdict, we find that a rational trier of fact could have
found beyond a reasonable doubt that Campbell intentionally threatened Rush with imminent
bodily injury and, in the process, used or exhibited a gun.  Lane, 933 S.W.2d at 507.  We
overrule the issue.
Due Process 
      Campbell claims that his due process rights were violated because the statute and the
indictment refer to assault on a “public servant,” whereas the indictment, charge, and verdict form
refer to assault on a “peace officer” and “police officer.”  The statute reads in part: “the offense
is a felony of the first degree if the offense is committed . . . against a person the actor knows is
a public servant . . . .”  Tex. Pen. Code Ann. § 22.02(b)(2).  The indictment reads in part: “that
the said Benjamin Rush was then and there a public servant, to-wit: a police officer. . . .”  The
charge reads in part: Campbell is charged with aggravated assault “on a public servant . . . ,”
followed by “[s]uch assault is aggravated assault when committed upon a peace officer in the
lawful discharge of official duty when the person committing the assault knows or has been
informed that the person assaulted is a public servant.”  The charge continues with a set of
instructions referring multiple times to “peace officers” and the presumption that the assaulter
knew the victim was a peace officer if the victim was wearing a distinctive uniform.  The
application paragraph at the end of the charge repeats parts of the indictment including the phrase
“a public servant, to-wit: a police officer,” and concludes “then you will find the defendant
guilty of aggravated assault on a peace officer, as charged in the indictment.”  The verdict form
states: “We, the jury, find the defendant . . . guilty of the offense of aggravated assault of a peace
officer, as alleged in the indictment.”
      The statute uses the term “public servant.”  The indictment uses two terms: “public servant”
and “police officer.”  The charge uses three terms: “public servant, “police officer,” and “peace
officer.”  The verdict form uses the term “peace officer.”  Campbell says this is constitutional
error requiring analysis under Rule 44.2(a).  Tex. R. App. P. 44.2(a).
      None of the terms are defined in the charge.  Section 1.07 of the Penal Code provides
definitions of “peace officer” and “public servant.”
(36) "Peace officer" means a person elected, employed, or appointed as a peace officer under
Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or
other law.
.     .     .
 
(41) "Public servant" means a person elected, selected, appointed, employed, or otherwise
designated as one of the following, even if he has not yet qualified for office or assumed his
duties:
 
(A) an officer, employee, or agent of government;

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private written
agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of a
governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right although
he is not legally qualified to do so.

Tex. Pen. Code Ann. § 1.07(36), (41) (Vernon 1994).
      The use of two terms not contained in the statute and the mixing of two or three terms in the
various instruments used at trial can result in confusion.  However, we do not think this is a due
process error or even a “variance” question.  See Gollihar v. State, 46 S.W.3d 243 (Tex. Crim.
App. 2001) (discussing variances between the indictment and the evidence at trial).  Furthermore,
any complaint about the adequacy of the indictment was waived by failure to object.  Tex. Code
Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2002).
      Rather, this is simple charge error which was not objected to at trial; we review unpreserved
charge error in a criminal case for “egregious harm.”  Huizar v. State, 12 S.W.3d 479, 484-85
(Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(opinion on reh'g).  Errors that result in egregious harm are those which affect “the very basis of
the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” 
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at
172).  In deciding whether there is egregious harm, we look to (1) the charge itself, (2) the state
of the evidence, including what issues were contested, and the weight of the probative evidence,
(3) the arguments of counsel, and (4) any other relevant information revealed by the record of the
trial as a whole.  Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex.
Crim. App. 1993) (citing Almanza)).
      The State argues that a “public servant” is a broad term including “peace officers” and
“police officers.”  Under the definitions in section 1.07, we agree.  Furthermore, whether Rush
was a public servant, a police officer, a peace officer, or some combination of these, was never
an issue at trial.  In addition, the indictment, charge, and verdict form, taken as a whole,
sufficiently informed the jury that they had to find that Rush was a public servant carrying out his
official duties, and that Campbell knew it.  We conclude that the use of several—at least
overlapping—terms in the charge and verdict form did not affect “the very basis of the case,”
deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.”  Hutch, 922
S.W.2d at 171.  We overrule the issue.
Deadly Weapon Finding
      The Code of Criminal Procedure requires that when there is an “affirmative finding” by the
factfinder that the defendant used a “deadly weapon” during the commission of an offense, the
trial court must enter the finding in the judgment, and if the deadly weapon is a firearm, that fact
shall also be entered.  Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2001);
Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).  When, as here, a jury is the finder
of fact, the trial court may not enter a “deadly weapon” finding in the judgment unless: (1) the
indictment includes an allegation of a “deadly weapon,” and the verdict states the defendant is
guilty as charged in the indictment, (2) the indictment does not allege “deadly weapon,” but does
allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as
charged in the indictment, or (3) the jury has affirmatively answered a special issue on “deadly
weapon” use.  Polk, 693 S.W.2d at 396;  Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App.
1995) (citing Polk, 693 S.W.2d at 396).  A firearm is per se a deadly weapon.  Tex. Pen. Code
Ann. § 1.07(17)(A).
      Campbell’s complaint is built on his third issue which we have overruled.  But that aside, the
indictment alleged that Campbell used a “deadly weapon, to-wit: a handgun,” and the verdict form
stated that the jury found Campbell guilty “as alleged in the indictment,” thereby satisfying Polk. 
Polk, 693 S.W.2d at 396.  We overrule the issue.
Lesser-Included Offense
      Campbell argues that the jury should have been given an instruction on a lesser-included
offense of resisting arrest using a deadly weapon, a third-degree felony.  Tex. Pen. Code Ann.
§ 38.03(a), (d) (Vernon 1994).  A defendant may be convicted of a lesser-included offense.  Tex.
Code Crim. Proc. Ann. art. 37.08 (Vernon 1981).  Before the defendant is entitled to have the
jury instructed on a lesser-included offense, some evidence must exist in the record that would
permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense.  Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001).  Furthermore, “[t]he evidence must
establish the lesser-included offense as a valid rational alternative to the charged offense.”  Id.
(citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993)).  The purpose of
granting the instruction is to prevent (a) an acquittal even though the jury believed the defendant
to be guilty of the lesser-included offense, and (b) a “guilty” finding even though the jury did not
believe the defendant committed the greater offense.  Bignall v. State, 887 S.W.2d 21, 24 (Tex.
Crim. App. 1994).  The policy of the Court of Criminal Appeals is to liberally permit the
instruction when warranted.  Id.
      This issue may arise when (1) the evidence refutes or negates the element which establishes
the greater offense, or (2) the evidence conflicts about whether the greater or lesser offense was
committed.  Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).  Whether a lesser-included instruction should be given is determined on a case-by-case basis.  Bartholomew v. State,
871 S.W.2d 210, 212-13 (Tex. Crim. App. 1994).  “Anything more than a scintilla of evidence
is sufficient to entitle a defendant to a lesser charge.”  Bignall, 887 S.W.2d at 23.
      The predicate issue is whether the other offense is in fact lesser-included.  Mathis v. State,
67 S.W.3d 918, 925 (Tex. Crim. App. 2002).  The Code of Criminal Procedure defines lesser-included offenses:
An offense is a lesser-included offense if:
 
(1) it is established by proof of the same or less than all the facts required to establish the
commission of the offense charged;
 
(2) it differs from the offense charged only in the respect that a less serious injury or risk of
injury to the same person, property, or public interest suffices to establish its commission;
 
(3) it differs from the offense charged only in the respect that a less culpable mental state
suffices to establish its commission; or

      (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).  We note that in the typical situation
under article 37.09(1), the greater offense has an “extra” element that the lesser offense does not,
e.g., the various “aggravated” statutes which increase the degree of an offense by “adding” an
element to the base offense.  Tex. Pen. Code Ann. §§ 20.04 (aggravated kidnaping),  22.02
(aggravated assault), 22.021 (aggravated sexual assault), 29.03 (aggravated robbery), 37.03
(aggravated perjury), 49.09 (felony DWI).  But when, as here, the contention is made that the
facts of the case raise the issue of a lesser-included offense, we must inquire whether the State,
in presenting its case to prove the offense charged, presented facts that could constitute the lesser
offense.  Bartholomew, 871 S.W.2d at 212; Broussard v. State, 642 S.W.2d 171, 173 (Tex. Crim.
App. 1982).
      As the court reiterated in Bartholomew:
Whether one offense bears such a relationship to the offense charged [so as to be considered
a lesser included offense] is an issue which must await a case by case determination, both
because the statute defines lesser included offenses in terms of the offense charged and
because it defines lesser included offenses in terms of the facts of the case.

Bartholomew, 871 S.W.2d at 212 (citing Day v. State, 532 S.W.2d 302, 315-16 (Tex. Crim. App.
1976) (opinion on reh’g)).  “It is not a question of whether or not the offense charged is capable
of being established on some theory that does not show the lesser included offense.”  Broussard,
642 S.W.2d at 173.  Therefore, we apply article 37.09(1) to the evidence adduced at trial to
determine whether Campbell was entitled to a charge on the lesser-included offense of resisting
arrest.  See Tex. Code Crim. Proc. Ann. art. 37.09(1).
      The key language in resolving this issue is found in subparts “a” and “d” of the resisting
arrest statute.
  The question is whether the elements in these subparts are “established by proof
of the same or less than all the facts required to establish the commission of the offense charged,”
i.e., the aggravated assault.  Id.
      According to Campbell’s argument, the elements of the two statutes match up this way:
Aggravated Assault
 
1.   Intentionally or knowingly threatened
Rush with imminent bodily injury,
 
2.   committed the crime against Rush
knowing that Rush is a public servant
who is lawfully attempting to make an
arrest, and
 
3.   used or exhibited a deadly weapon.

Tex. Pen. Code Ann. § 22.02(a)(2), (b)(2).

Resisting Arrest
 
1.   By using force against Rush,

 
2.   intentionally prevented or obstructed
Rush from effecting an arrest, and


 
3.   used a deadly weapon.

Tex. Pen. Code Ann. § 38.03(a), (d).

Therefore, to succeed, Campbell must demonstrate that:
            1.   The evidence that he intentionally or knowingly threatened Rush with imminent
bodily injury also establishes that he used force against Rush. 
 
            2.   The evidence that he committed the aggravated assault knowing that Rush was a
public servant lawfully attempting to arrest Campbell also establishes that he
intentionally prevented or obstructed Rush from effecting his arrest.
 
            3.   The evidence that he used or exhibited a deadly weapon also establishes that he used
a deadly weapon.

      The Court of Criminal Appeals found resisting arrest to be a lesser-included offense of
aggravated assault in Sutton, but not by threat of bodily injury using a deadly weapon as is
asserted in this case.
 Sutton v. State, 548 S.W.2d 697, 699 (Tex. Crim. App. 1977).  Support
also comes from Bell v. State, where the Court held that reckless conduct is a lesser-included
offense of aggravated assault under the facts of that case.  Bell v. State, 693 S.W.2d 434, 439
(Tex. Crim. App. 1985).  The defendant fired his weapon into an occupied trailer home.  Id. at
436.  He was indicted for threatening the occupant with imminent bodily injury using a deadly
weapon.  Id.  The lesser-included offense was recklessly engaging in conduct that placed another
in danger of serious bodily injury.  Id.; Tex. Pen. Code Ann. § 22.05(a) (Vernon 1994).  The
Court said the same facts proved the elements of each offense.  Bell, 693 S.W.2d at 439.
      Regarding the second pair of elements, the evidence that shows how the aggravated assault
occurred also establishes that Campbell prevented or obstructed Rush from arresting him. 
Therefore, as for this pair of elements, article 37.09(1) is satisfied.
      But there is a problem with the first pair of elements, i.e., whether the evidence that Campbell
“threatened [Rush] with imminent bodily injury” establishes that he “used force against” Rush. 
The Penal Code does not provide a definition of “using force against” or of those terms
individually.  Courts have concluded that non-cooperation with an arrest is not an act of “use of
force against” a peace officer under the resisting arrest statute, for example:
      •    shaking off an arresting officer’s detaining grip.  Anderson v. State, 707 S.W.2d 267,
269 (Tex. App.—Houston [1st Dist.] 1986, no pet.).
 
      •    pulling away from an arresting officer after being arrested.  Young v. State, 622 S.W.2d
99, 100-01 (Tex. Crim. App. [Panel Op.] 1981).
 
      •    crawling away from an arresting officer.  Leos v. State, 880 S.W.2d 180, 181 (Tex.
App.—Corpus Christi 1994, no pet).
Thus, refusing to cooperate with being arrested does not constitute resisting arrest by force. 
However, we have held that evidence of non-cooperation combined with violent swings of the
body and a forward movement causing the officer and the defendant to fall off a porch was
sufficient to establish resisting arrest.  Bryant v. State, 923 S.W.2d 199, 206 (Tex. App.—Waco
1996, pet ref’d).
      We conclude that the evidence adduced by the State to prove Campbell threatened Rush with
imminent bodily harm, i.e., producing a gun, saying “get back,” and engaging Rush with physical
resistance, also establishes a “use of force against” Rush by Campbell, and not merely non-cooperation or a “pulling away.”  Therefore, article 37.09(1) is satisfied as to the first pair of
elements.
      Campbell’s final challenge comes with the third pair of elements.  The resisting arrest statute
requires Campbell to have “used” the gun, whereas under the aggravated assault statute, Campbell
could have either “used” or “exhibited” the gun.  Thus if the two terms mean something different
and the evidence could prove only an “exhibition,” then resisting arrest cannot be a lesser-included
offense under these facts.
      The meaning of the terms “use” and “exhibit” in relation to a deadly weapon has been
discussed in the context of a deadly weapon finding under article 42.12, § 3g(a).  Tex. Code
Crim. Proc. Ann. art. 42.12, § 3g(a)(2).  In Patterson v. State, the Court of Criminal Appeals
applied the Code Construction Act as required by the Penal Code.
 Patterson v. State, 769
S.W.2d 938, 940 (Tex. Crim. App. 1989); Tex. Pen. Code Ann. § 1.05 (Vernon 1994). 
Generally, the Court said, in relation to a deadly weapon, the term “use” means to utilize,
employ, or apply the deadly weapon to achieve an intended result.  Patterson, 769 S.W.2d at 941. 
“Use” includes simple possession if the possession facilitates the commission of the associated
felony.  Id.  To “exhibit” a deadly weapon means to consciously show, display, or present for
viewing the deadly weapon during the commission of a crime.  Id.  “[O]ne can ‘use’ a deadly
weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the
commission of a felony without using it.”  Id.  Applying these definitions in the present case, it
is clear from the evidence that Campbell exhibited the gun because it was “consciously show[ed],
display[ed], or present[ed] for viewing” during the commission of a crime.  Id.  And because “it
is doubtful one can exhibit a deadly weapon during the commission of a felony without using it,”
the jury was not precluded from finding that Campbell “used” the gun.  Id.
      As we have noted, “[a]nything more than a scintilla of evidence is sufficient to entitle a
defendant to a lesser charge.”  Bignall, 887 S.W.2d at 23.  The evidence shows that Campbell
“used” the gun.  See id.  Producing the gun could be viewed as facilitating Campbell’s resisting
arrest because it caused Rush to release Campbell, who then fled.  Also, by producing the gun,
Campbell utilized, employed, or applied it to achieve an intended result.  Id.  Therefore, evidence
that Campbell “used” the gun satisfies the third pair of elements.
      We conclude that the requirements of article 37.09(1) are met, as the evidence which proved
that Campbell committed the aggravated assault also proved the elements of resisting arrest.  We
believe that a rational jury could have found that Campbell resisted arrest rather than that he
assaulted Rush, and the jury should have been given that alternative.  Wesbrook, 29 S.W.3d at
113.
      Having found that the trial court erred in not giving the instruction, we must conduct a harm
analysis.  When a complaint about an error in the charge is properly preserved—as here by
requesting the instruction—reversal is required if the error caused “some” harm to the accused. 
Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2002); Ovalle v. State, 13 S.W.3d 774,
786 (Tex. Crim. App. 2000) (quoting Almanza, 686 S.W.2d at 171).  “In the context of Almanza,
supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results
from preserved charging error, is sufficient to require a reversal of the conviction.  Cases
involving preserved charging error will be affirmed only if no harm has occurred.”  Arline v.
State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
      The Court of Criminal Appeals has held that failure to give a lesser-included instruction is
“some” harm because the jury is not given the option to convict on the lesser-included offense. 
E.g., Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995) (citing Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)) (danger is that the jury will convict of
some offense, i.e., the greater offense, only because of no alternative); Ross v. State, 861 S.W.2d
870, 877 (Tex. Crim. App. 1992); Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App.
1991); also Jiminez v. State, 953 S.W.2d 293, 299-300 (Tex. App.—Austin 1997, pet. ref’d).  We
sustain the issue.
Conclusion
      Having sustained Campbell’s issue about the lesser-included offense of resisting arrest, we
reverse the judgment and remand the cause for a new trial.


                                                                   BILL VANCE
                                                                   Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
      (Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed January 8, 2003
Publish
[CRPM]
