                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00052-CR


CRAIG ARLEN MURRAH                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


                                      ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                        MEMORANDUM OPINION1
                                      ----------

                                   I. Introduction

      In five issues, Appellant Craig Arlen Murrah appeals his official oppression

conviction. We reform the trial court’s judgment and affirm as reformed.

                      II. Factual and Procedural History

      Murrah was a Fort Worth police officer when he was charged by indictment

with official oppression.2 The indictment contained ten paragraphs, but before

      1
       See Tex. R. App. P. 47.4.
trial began, the State waived paragraphs 1, 2, 5, 6, 7, and 10, and it deleted

some language from paragraphs 8 and 9. The language in the jury charge,

however, reflects only paragraphs 3 and 4. The jury found Murrah guilty ―as

charged in the indictment,‖ and the trial court’s judgment states that Murrah was

convicted of paragraphs 3, 4, 8, and 9. The trial court assessed punishment at

six months’ confinement and a $2,000 fine. This appeal followed.

                                  III. Judgment

      In his first, second, and fifth issues, Murrah complains that the judgment

incorrectly reflects that he was convicted of official oppression as alleged in

paragraphs eight and nine because the jury was never charged on these

paragraphs.    The State agrees, and the record reflects this.      Therefore, we

sustain Murrah’s first, second, and fifth issues and reform the judgment to reflect

that Murrah was convicted of official oppression on paragraphs three and four.

                        IV. Sufficiency of the Evidence

      In his third issue, Murrah argues that the evidence is factually insufficient

to support his conviction as alleged in paragraphs three and four of the

indictment.3   However, the court of criminal appeals has recently overruled


      2
       Because Murrah challenges the sufficiency of the evidence to support his
conviction, we will address the evidence below.
      3
        Murrah also challenges the factual sufficiency of the evidence to support
his conviction as alleged in paragraphs eight and nine of the indictment but,
based on our resolution of his first, second, and fifth issues, we need not address
this issue. See Tex. R. App. P. 47.1.


                                        2
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), upon which the factual

sufficiency standard of review is based, and decided ―that the Jackson v. Virginia

legal-sufficiency standard is the only standard that a reviewing court should apply

in determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.‖

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In the interests of

justice, we will review Murrah’s third issue under Jackson.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the


                                        3
evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

B. Evidence

      Corinna Mascorro testified that she was with Paul Botello, her children’s

father, on the night of June 21, 2007. Around 1 a.m., they drove to a nearby park

and were engaging in sexual intercourse when another car pulled up. When they

saw the headlights, they hurried to find their clothing.      Someone—a police

officer—knocked on the car window and asked for their identification; Botello

could not find his initially, but Mascorro gave the officer hers. The officer asked

her to step out of the car, and she asked if she could put her clothes on. He said

no.

      Mascorro emerged from the vehicle naked from the waist down; she

grabbed Botello’s shirt and put it around her waist.        The officer escorted

Mascorro to his patrol car and put her in the back seat while he ran warrant

checks. He asked her whether she knew she could go to jail for having sex in

the park. Mascorro testified that she started crying when she thought about

                                        4
going to jail and leaving her children. The officer kept asking her if she had

learned her lesson.

      Botello testified that he was nervous when the officer approached their car

because he knew he had outstanding warrants. After the officer had Mascorro

step out of the car and moved his vehicle behind theirs,4 Botello could not see

anything.

      The officer had Mascorro get back out of his patrol car and told her to turn

around and put her hands behind her back. Botello’s shirt, which she had been

holding, fell to the ground. Mascorro testified that at that point, she thought that

the officer was going to handcuff her and take her to jail. Instead, he told her to

bend down and said that he did not think she had learned her lesson. Then he

hit her with his hand, hard, ―like four or five times on [her] bare butt.‖ She asked

him to stop, and he told her, ―Quit being a drama queen.‖

      Afterwards, the officer nudged Mascorro to go back to her car and returned

her identification to her. She picked up Botello’s shirt, walked back to her car,

and told Botello what had happened. Enraged, Botello jumped out of the car to

confront the officer, but ―the cop drove off too fast.‖ They followed the officer,

calling 911 while in pursuit. When the officer pulled into a police station, they

obtained his patrol car number and then drove back to Botello’s house.



      4
       Mascorro and Botello stated that during the incident, the officer changed
the position of his patrol car so that it was behind their vehicle.


                                         5
      Botello stated that he stepped out of the car when he heard Mascorro

crying.   He approached the patrol car when the officer released Mascorro’s

hands, which were bound behind her back, and Mascorro ran towards him. As

Botello approached, the officer—whom Botello identified as Murrah—put his

hand on his weapon and told him not to take a step closer, then got into the

patrol car and took off.    Botello’s 911 call was admitted in evidence and

published to the jury. During cross-examination, Botello admitted that the first

patrol car number that he gave the 911 dispatcher was different from the second

time he gave the number, from ―1059‖ to ―1092.‖

      A police supervisor, Corporal Lawrence Blanchard, subsequently called

and spoke with both Mascorro and Botello. When Corporal Blanchard did not

follow up with them within two or three weeks, Mascorro and her father went to

the downtown police station and spoke with Sergeant Pablo Criado. Mascorro

provided Sergeant Criado with a written statement, and he recorded his interview

with her and showed her a photographic lineup, from which she identified

Murrah.

      Sergeant Criado described Mascorro’s and her father’s demeanors when

they walked into the station to make the complaint: ―Crying, she was crying. The

father was really quiet, and you could read his body language that he was really

upset and—to the point where they apprised me of the fact that they were looking

for this officer.‖ He interviewed Botello the next day and observed that their

stories were consistent.


                                       6
      Corporal Blanchard testified that at the time of the incident, he was

Murrah’s supervisor. In the early morning hours of June 22, 2007, he received

information that he ―needed to call a citizen in reference to a complaint against

. . . one of [his] officers. He spoke with Botello and Mascorro and then called

Murrah. Murrah told him that he had had contact with Mascorro and Botello but

denied their allegations.

      Murrah’s ―Officer’s Daily Activity Report‖ for the date of the offense was

admitted during Corporal Blanchard’s testimony.       The report indicated that at

1:13 a.m., Murrah self-initiated an investigation. It also indicated that Murrah’s

vehicle that night was #1092. Corporal Blanchard testified that Murrah’s vehicle

was equipped with video equipment but that he did not recall reviewing the video.

He reported the complaint about Murrah to his supervisor and then followed up

with Botello, although it was ―hit and miss.‖ The complaint was addressed again

two or three weeks later when Mascorro or Botello brought it to internal affairs.

      Sergeant William Hix, who was working in internal affairs when Mascorro

made her complaint, testified about police procedures taught for opposite sex

encounters. He stated that if an officer encountered a nude or partially nude

female, that person would be allowed to either get clothed or, if no clothing was

available, to find something to cover herself up with, and that he ―would suggest

the first thing [an officer] should do is call somebody to come out there . . . to

have another officer . . . to ensure that nothing unusual occurred.‖ He explained

that the Fort Worth police have an 800-page general orders book that includes a


                                         7
code of conduct detailing the behavior expected of an officer. Under the code of

conduct, officers are not allowed to mock, taunt, or humiliate those they come

into contact with in the community. He replied, ―No, never,‖ when asked whether

there was ever a time when officers are allowed to lay hands on detainees to

enforce their own punishment as they see fit. And he stated, ―I believe so,‖ when

asked whether ―the manner and way [Murrah] treated [Mascorro] in spanking or

striking her several times on her bare buttocks‖ was something that Murrah was

taught was unlawful.

      Sergeant Hix testified about Murrah’s patrol vehicle’s computer ―CAD‖ log

from June 22, 2007, which was entered in evidence. It reflected that at 1:17

a.m., Murrah requested from the dispatcher an investigative call—which can be

anything more than a mere traffic stop—at 1500 East North Side Drive,

approximately a mile away from the park. The request took him ―out of service,‖

i.e., unavailable for other calls.   Sergeant Hix stated that when an officer is

conducting an investigation or detaining a person, he is acting under the color of

his employment as a police officer and acting in an official capacity.

      The next CAD entry was for 1:19 a.m. and showed that Murrah checked

Mascorro’s and Botello’s basic information. Sergeant Hix noted that Murrah’s

check on Mascorro’s and Botello’s personal information was unusually quick,

which raised a red flag for him. Murrah’s daily activity report confirmed that he

had made contact with Mascorro and the time of the contact, but there was a

―significant difference between the address that he documented to what they


                                         8
reported.‖ He testified that he never looked for CAD logs for patrol unit #1059

but that, based on his investigation, unit #1059 was not on duty that evening.

And he testified that Corporal Blanchard told him that ―there was no videotape or

it wasn’t captured on video‖ or that nothing relevant to the investigation was

captured on video.

C. Analysis

       A public servant acting under color of his office or employment commits an

offense if he intentionally subjects another to mistreatment that he knows is

unlawful. Tex. Penal Code Ann. § 39.03(a)(1) (Vernon 2009). ―Unlawful‖ means

criminal or tortious or both. Id. § 1.07(48) (Vernon 2009). A public servant acts

―under color of his office or employment‖ if he acts or purports to act in an official

capacity or takes advantage of such actual or purported capacity. Id. § 39.03(b).

The indictment alleged in paragraph 3 that Murrah mistreated Mascorro by

holding her hands behind her back and causing her to bend over while she was

partially clothed or naked, which he knew was unlawful, and in paragraph 4 that

Murrah mistreated Mascorro by spanking or striking her with his hand on her

bare buttocks, which he knew was unlawful. See State v. Edmond, 933 S.W.2d

120, 127 (Tex. Crim. App. 1996) (―[A] defendant charged under [this section]

must mistreat another and must also know that his conduct is criminal or

tortious.‖).

       The testimony at trial reflected that Murrah was a public servant—a police

officer—acting under color of his office or employment when he made an


                                          9
investigative stop. Viewed in the light most favorable to the prosecution, the

evidence in the record supports the jury’s finding that Murrah held Mascorro’s

hands behind her back and caused her to bend over while she was partially

clothed and that he spanked or struck her with his hand on her bare buttocks.

And the jury could have inferred from the evidence that Murrah knew this conduct

was unlawful. See Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009)

(stating that circumstantial evidence is reviewed under the same standard as

direct evidence). Therefore, we conclude that the evidence is legally sufficient to

support Murrah’s conviction for official oppression as alleged in paragraphs 3 and

4 of the indictment, and we overrule his third issue.

                                  V. Conclusion

      Having sustained Murrah’s first, second, and fifth issues and overruled

Murrah’s remaining dispositive issue, we reform the trial court’s judgment to

delete paragraphs 8 and 9 and to reflect his conviction for ―official oppression

(paragraphs three and four).‖ We affirm the trial court’s judgment as reformed.



                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 10, 2011




                                         10
