                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00119-CR



      MITCHELL DAMOND MARTIN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 7th District Court
                 Smith County, Texas
             Trial Court No. 007-0047-18




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                         MEMORANDUM OPINION
            After a Smith County jury found Mitchell Damond Martin guilty of assault on a public

servant, he was sentenced to ten years’ confinement in prison. 1 In his sole issue on appeal, Martin

contends there was insufficient evidence to support the jury’s guilty verdict. Because we find there

was sufficient evidence to support the verdict, we affirm the trial court’s judgment.

I.          Background

            On October 31, 2017, Gregg Roberts, a detective with the Tyler Police Department, was

working as a part of the United States Marshals’ Joint East Texas Fugitive Task Force. 2 According

to Roberts, the task force was attempting to locate Martin in an effort to execute an arrest warrant.

The officers had obtained Martin’s last known address and his photograph. When they arrived at

the address, the officers pulled in behind a white Chevrolet Impala and activated their overhead

emergency lights. 3 As the officers approached the vehicle, in the roadway, they noticed Martin

sitting in the driver’s seat. Martin was instructed to keep his hands visible and to turn off the

vehicle. Roberts asked Martin his name, and Martin replied, “Jared Wilkins.” Martin also stated

that he did not have a driver’s license. Yet, Roberts noticed a Texas driver’s license on the seat in




1
 Originally appealed to the Twelfth Court of Appeals in Tyler, Martin’s case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
Because this is a transfer case, we apply the precedent of the Tyler Court of Appeals to the extent it differs from our
own. See TEX. R. APP. P. 41.3.
2
Roberts described his work with the task force as “look[ing] for violent fugitives or violent offenders that have felony
warrants.”
3
    Roberts explained that there were several officers involved and that they were driving separate vehicles.

                                                             2
the vehicle. 4 At that point, Roberts advised Martin that he was being detained for the offense of

driving without a license.

            Roberts proceeded to contact the Tyler Police Department, asking that a marked unit be

sent to the scene. When asked why he requested a marked unit, Roberts explained, “Because we’re

in trucks that don’t have visible markings, like badges and police insignia. I wanted to be certain

that [Martin] -- as well as anybody in the neighborhood -- knew that we were conducting a

legitimate police action.”

            Roberts stated that Martin was “sweating profusely. And it was only 57 degrees outside.”

Based on his training, Roberts construed Martin’s physical appearance as being an indication that

he had an elevated stress level. Despite being asked to exit the vehicle, Martin remained inside

the car smoking a cigarette, 5 talking on a speaker phone, and being argumentative with Roberts

“from the get-go.”

            About that time, Charles Barber, a Tyler police officer, arrived at the scene in a marked

police car and wearing his police uniform. After Barber’s arrival, Roberts began to remove Martin

from the vehicle. 6 Noting that many neighbors had come outside their homes and that Martin was

“wailing and hollering,” Roberts explained, “Sometimes people [who are being arrested] act out

in exaggerated fashions to engender sympathy or, I guess, support from the people that are around

them.” Roberts then conducted a pat-down search of Martin to determine whether he was carrying


4
    It was later determined that the license belonged to Martin.
5
    Roberts also instructed Martin not to light a cigarette, but Martin refused to comply with his instructions.
6
 The State offered, and the trial court admitted, the video recordings of Martin’s arrest, which had been taken from
the officers’ body cameras.
                                                              3
weapons or contraband that might cause physical harm to the officers. Although Martin finally

revealed his correct last name, he immediately denied having any outstanding warrants against

him.

         Roberts explained that Barber would be transporting Martin because he was driving a

marked police vehicle, with a transport cage in the back. “It’s safer for prisoner transportation,

particularly when you have people that you’re not sure about their level of cooperation.”

According to Roberts, when Barber began to escort Martin toward the patrol unit, Martin pulled

away and began physically resisting Barber. 7 Roberts stated that Martin was struggling against

the officers. Roberts continued, “But he’s not being pushed as much as -- we’re trying to escort

him to the car and maintain our physical control over him.” Roberts described Martin as dragging

his feet, pulling, twisting, and in general, resisting the officers’ efforts of placing him into Barber’s

vehicle. Based on Martin’s behavior, Roberts implored, “Please stop pulling.” Roberts stated that,

because of Martin’s erratic behavior, both Martin and Barber fell to the ground, which led to Barber

sustaining injuries to his knee and his hand. 8

         Barber testified that, before his arrival at the scene, Roberts had informed him that Martin

was not complying with the officers’ instructions. Barber explained that, after Martin had been




7
 Martin had been placed in handcuffs that were “double locked,” which, according to Roberts, meant “they don’t
ratchet down on [Martin] when he sits on the handcuffs in the cage of the police car. So it’s safer and more secure
and more comfortable.”
8
 According to Roberts, Martin kept struggling with the officers after Martin and Barber fell to the ground by locking
his legs “on the edge of the vehicle.” Roberts stated, “Because he is actively resisting against us, he ha[d] become
tangled in the seat belt, and we’re trying to get that worked out and get him into the proper position where he will be
comfortable and secure.”

                                                          4
placed in handcuffs, he searched Martin for weapons, contraband, and illegal substances. 9 Barber

said that, when the officers began moving with Martin, he refused to move his feet. Barber

testified, “So I’m having to use a little bit of force to push him forward to make him move forward.”

Barber stated that Martin “was walking on his toes only and digging his toes in and resisting the

escort.” According to Barber, the only reason Martin was moving was because he was forcing

him to move. Barber stated, “But he’s not going willingly.” Barber explained that, because of

Martin’s noncompliance with the officers’ instructions, Roberts almost tripped over Martin.

            Barber then asked Roberts to go to the driver’s side door of the patrol vehicle and unlock

the door so that when he got Martin to the passenger-side back door, he could get Martin inside

“without any problems.” Barber stated that he instructed Martin to “[w]alk around to the side of

the car[,]” but he refused to walk. Barber continued, “So I had to push him a little bit. So I put a

little pressure on him.” Barber stated that Martin would not move his feet. Barber described

Martin’s behavior as “resisting this arrest and detention.” Barber stated that, because Martin would

not move his feet, their feet got tangled, and Barber tripped over Martin and “went down to the

asphalt.” Barber said that, when he fell to the asphalt, he felt pain in both of his hands. Barber

explained that his hands were “bleeding pretty good.” According to Barber, he would not have

fallen or sustained any injuries had Martin complied with his instructions. 10 After several more

minutes of Martin’s continued resistance, the officers successfully placed Martin securely inside


9
    Like Roberts, Martin reviewed the recordings of the incident, while explaining to the jury what was taking place.
10
   Barber was asked, “[A]s to [Martin’s] resistance, did any of that appear -- did that appear to you to be completely
voluntary, active resistance on his part?” Barber responded, “Absolutely. It was intentional on his part. More than
just voluntary. He intended to resist, to cause some type of response. The response was that we fell to the ground and
caused me injury.”
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the police vehicle. Initially, Martin was charged with resisting arrest, but due to Barber’s injuries,

the charge was later changed to assault on a public servant. 11

II.      Discussion

         In his sole point of error, Martin contends that the evidence was legally insufficient to

support his conviction of assault on a public servant. In evaluating legal sufficiency, we must

review all the evidence in the light most favorable to the verdict to determine whether any rational

fact-finder could have found, beyond a reasonable doubt, that Martin was guilty of assault on a

public servant. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863

(Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence

presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency

under the direction of the Brooks opinion, while deferring to the responsibility of the fact-finder

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

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19).

         Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not


11
  Martin described a cut to his index finger on his left hand that required four stitches, and another cut along the web
between his thumb and index finger. Martin stated that the knuckle of his little finger on his right hand had been
“smashed against the asphalt[,]” which he said “caused a great deal of pain.”
                                                           6
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.” Id.

            The elements of assault on a public servant are that a person (1) intentionally, 12

knowingly, 13 or recklessly 14 (2) causes bodily injury (3) to a person (4) whom the actor knows to

be a public servant, and (5) that public servant is discharging an official duty. TEX. PENAL CODE

ANN. § 22.01(a)(1), (b)(1) (West Supp. 2018). “Bodily injury” is defined as “physical pain, illness,

or any impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (West Supp.

2018). This “purposefully broad” definition of “bodily injury” includes physical pain from “even

relatively minor physical contacts so long as they constitute more than mere offensive touching.”

Morales v. State, 293 S.W.3d 901, 907 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting

Wawrykow v. State, 866 S.W.2d 87, 89 (Tex. App.—Beaumont 1993, pet. ref’d) (citing Lane v.



12
  “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN.
§ 6.03(a) (West 2011).
13
     Section 6.03(b) states,

            A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to
            circumstances surrounding his conduct when he is aware of the nature of his conduct or that the
            circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his
            conduct when he is aware that his conduct is reasonably certain to cause the result.

TEX. PENAL CODE ANN. § 6.03(b) (West 2011).
14
     Section 6.03(c) states,

            A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or
            the result of his conduct when he is aware of but consciously disregards a substantial and
            unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a
            nature and degree that its disregard constitutes a gross deviation from the standard of care that an
            ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

TEX. PENAL CODE ANN. § 6.03(c) (West 2011).
                                                             7
State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)). A jury may infer intent from any facts which

tend to prove its existence, including the defendant’s acts, words, and conduct, or the nature of the

wounds inflicted on the victim. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004);

Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). 15

         Martin contends that “the injuries sustained by Officer Barber occurred as a result of them

tripping over each other” and that “this tripping does not meet the required culpable mental state

for the offense.” 16 We disagree. Even if Martin did not intend to assault Barber, the State

established the indicted offense by proving that Martin acted either knowingly or recklessly. The

testimony of Roberts and Barber, along with the patrol car dashboard camera recording, and the

officers’ body-camera recordings, showed a struggle in which Martin repeatedly flouted the

officers’ directions. As a result of Martin’s intentional failure to comply with the officers’

instructions, Martin’s legs and feet became entwined with Barber’s legs and feet, which directly

led to Barber’s injuries. The statute defining assault contains no requirement that the defendant

exert force against the victim in any particular way to cause the victim’s injury. Morales, 293

S.W.3d at 908.

         The evidence showed that Martin disregarded a substantial, non-justifiable risk that his

“struggling” and “flailing” could have resulted in bodily injury to any of the officers involved in

effectuating his arrest. See Gumpert v. State, 48 S.W.3d 450, 454 (Tex. App.—Texarkana 2001,


15
  Further, “[t]he jury, being the judges of the facts and credibility of the witnesses, could choose to believe or not
believe the witnesses, or any portion of their testimony.” Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)
(citing Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974)).
16
 Martin does not complain of the sufficiency of the evidence as it relates to the remaining elements of the charged
offense.
                                                          8
pet. ref’d). In fact, Martin’s reckless and belligerent behavior toward Barber caused Barber to fall

to the asphalt, which in turn, caused his injuries. See Lofton v. State, 45 S.W.3d 649, 652 (Tex.

Crim. App. 2001) (“Even if appellant had intended only to prevent his arrest, the force used by

appellant against [the officer], at the very least, recklessly caused [the officer] to suffer a bodily

injury.”). Thus, Martin’s actions toward Barber were beyond a “mere offensive touching.” See

Morales, 293 S.W.3d at 907. We therefore conclude that a rational trier of fact could have found

beyond a reasonable doubt that Martin assaulted Barber.

       Martin’s point of error is overruled.

III.   Conclusion

       We affirm the trial court’s judgment.



                                               Scott E. Stevens
                                               Justice


Date Submitted:        March 6, 2019
Date Decided:          April 10, 2019

Do Not Publish




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