                        PD-1354-15                                     PD-1354-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                   Transmitted 10/21/2015 10:45:43 AM
                                                      Accepted 10/21/2015 3:35:30 PM
                                                                       ABEL ACOSTA
                                NO.                                            CLERK

                   TO THE COURT OF CRIMINAL APPEALS
                         OF THE STATE OF TEXAS


                            NO. 10-15-0067-CR


                        IN THE COURT OF APPEALS

                               FOR THE

            TENTH SUPREME JUDICIAL DISTRICT OF TEXAS

                            AT WACO, TEXAS


                      CHRISTOPHER DAVID HARVEY,
                               Appellant

                                   V.
October 21, 2015
                          THE STATE OF TEXAS,
                                Appellee


                   PETITION FOR DISCRETIONARY REVIEW


JOHN DONAHUE                    ATTORNEY FOR APPELLANT
TBA #05968300                   CHRISTOPHER DAVID HARVEY
        th
204 N. 6 St.
Waco, Texas 76701
(254) 752-9090
(254) 753-1232 FAX
Texascriminalattorney@yahoo.com

                      ORAL ARGUMENT REQUESTED
                                       SUBJECT INDEX                                                                  PAGE

Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

                                          GROUND FOR REVIEW

      Whether the evidence was legally insufficient to prove that Harvey
caused the injury.

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts Pertinent To Petitioner's
 Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ground for Review (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reasons for Review as to Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Arguments and Authorities in Support of Petitioner’s Ground for Review . . . . . . 3

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX - Opinion of 10th Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . end




                                                               i
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner respectfully asserts that this Court would be aided in the resolution

of the matters which are the subject of this Petition for Discretionary Review if oral

argument were granted. Therefore, Petitioner respectfully requests that this Court set

this case for oral argument.

                    IDENTIFICATION OF THE PARTIES

      Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested

parties is provided below:

Abelino “Abel” Reyna - District Attorney of McLennan County, Texas
Robert Moody, Evan O’Donnell - Assistant District Attorneys
219 N. 6th St., Waco, TX 76701

Christopher David Harvey - Appellant
#02016029
Byrd Unit
21 FM 247
Huntsville, TX 77320

Felipe “Phil” Martinez - Counsel for Appellant in trial court
1105 Wooded Acres, Suite 200, Waco, TX 76710

John Donahue - Counsel for Appellant on appeal
204 N. 6th St., Waco, TX 76701

Hon. Ralph T. Strother - Presiding Judge




                                         ii
                                      LIST OF AUTHORITIES

CASES                                                                                                    PAGE

Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . 4

Breaux v. State, 16 S.W.3d 854 (Tex. App. Houston 14th Dist. 2000, pet ref’d) . 4

Johnson v. State, 978 S.W.2d 703 (Tex. App. Corpus Christi 1998),
     aff’d 23 S.W.3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 4


STATUTES

Tex. Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013) . . . . . . . . . . . . 4




                                                       iii
                         STATEMENT OF THE CASE

             This is an appeal from a jury trial in the 19th District Court, McLennan

County, Texas, the Honorable Ralph T. Strother, presiding, Cause Number 2013-840-

C1. The State instituted proceedings against the Appellant, Christopher David

Harvey, for the offense of assault on a public servant, a third degree felony. Tex.

Penal Code §22.01. There were two enhancement allegations which made the range

of punishment 25 years to life in prison. Tex. Penal Code §12.42(d). Harvey pleaded

not guilty and a jury trial commenced. Harvey was convicted and punishment was

assessed by the jury at 65 years in TDC. No fine was imposed.



     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On February 25, 2015, Mr. Harvey timely filed his Amended Notice of Appeal.

His brief was filed on July 21, 2015. The State’s reply brief was filed on August 18,

2015. On September 17, 2015, the Tenth Court of Appeals issued an opinion

overruling Harvey’s points of error and affirming his conviction.

      No motion for rehearing was filed. This petition for discretionary review is

being filed within 30 days of the Court of Appeal’s opinion.




                                         1
                            STATEMENT OF FACTS

      On April 9, 2013, two deputies with the McLennan County Sheriff’s Office

went to 2615 Bosque Blvd to serve an arrest warrant on Harvey. (R. 4, ppg. 15, 36).

As the deputies were pulling up to the house, so was the homeowner, Rebekah

Rosario. She gave the deputies consent to enter the house. (R. 3, pg. 37). Once

inside, they told Harvey to turn around and put his hands behind his back. (R. 3, pg.

40). It appeared to the deputies that Harvey did not really want to comply, so they

both grabbed hold of Harvey. Deputy Mabry grabbed her cuffs. (R. 3, pg. 40). The

Deputies testified that Harvey hit Mabry with his shoulder causing her to fall to the

ground. In the course of getting back up, Mabry and Ewing became entangled and

Ewing lost his hold on Harvey, who was able to escape out the front door. (R. 3, ppg.

20, 41-42). Both deputies were wearing uniforms that included long, BDU type

pants. (R. 3, pg. 43). After he escaped, they spent several hours looking for Harvey.

Some of the search included looking into a crawl space underneath the house. (R. 3,

pg. 45). Deputy Mabry testified that her pants were not torn and she did not notice

at the time of the altercation that she had a scrape on her knee. It was not until she

got back to office several hours later that she even noticed that she had a scrape. (R.

3, pg. 32).




                                          2
Court of Appeals

      As to his first point of error, the Court of Appeals held that because Harvey had

knocked Deputy Mabry to the ground as he was fleeing from the deputies, that he had

committed assault against a public servant since she suffered a scraped knee.

      As to Harvey’s second point of error, the court of appeals held that the error

was waived by the failure to object un the trial court.

                    GROUND FOR REVIEW (RESTATED)

           Whether the evidence was legally insufficient to prove that
      Harvey caused the injury.

           REASONS FOR REVIEW AS TO GROUND FOR REVIEW

      1.     The Court of Appeals has decided an important question of state
             or federal law that has not been, but should be, settled by the
             Court of Criminal Appeals.

      2.     The Court of Appeals has so far departed from the accepted and
             usual course of judicial proceedings as to call for an exercise of
             the Court of Criminal Appeals' power of supervision.


              ARGUMENTS AND AUTHORITIES IN SUPPORT
                OF PETITIONER’S GROUND FOR REVIEW

      In order to convict Harvey of this offense, the State was required to prove that

Harvey intentionally, knowingly or recklessly caused bodily injury to Deputy Mabry,

who was then acting as a public servant. Tex. Penal Code §22.01. During the course


                                          3
of the trial, the issue which arose was whether Harvey caused the injury.

      The State is required to introduce evidence showing the defendant's guilt. See

TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013). The evidence is

sufficient under article 1.15 if it embraces every essential element of the offense

charged and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427

(Tex. Crim. App. 1996). Breaux v. State, 16 S.W.3d 854, 857 (Tex. App. Houston

14th Dist. 2000, pet ref’d).

      In this case, Deputy Mabry testified that she did not notice the scrape on her

knee until she got back to the office, which by her own admission was several hours

later. Further, Deputy Ewing testified that during that period of time they had looked

for Harvey and the search included looking under the house in the crawl space. There

was no testimony that Deputy Mabry complained of or even noticed the injury or

“pain” at the time of the altercation. In essence, the testimony in this trial amounted

to speculation that Harvey caused the injury.

      There is no greater "manifest injustice" than to send a person to prison whose

guilt has not been established beyond a reasonable doubt. Johnson v. State, 978

S.W.2d 703, 707 (Tex. App. Corpus Christi 1998), aff’d 23 S.W.3d 1 (Tex. Crim.

App. 2000). While this principle appears most often in cases of the now defunct

factual sufficiency review, Harvey contends that it still applies in cases of legal

                                          4
insufficiency. The evidence in this case was insufficient and his conviction should

be reversed.

Conclusion

      Mr. Harvey contends that his conviction should be reversed and a judgment of

acquittal entered.

                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Mr. Harvey respectfully

requests that this Honorable Court review the transcript of the proceedings in this

case, and after such review, determine that the Court of Appeals improperly decided

his point of error; reverse the decision of the Court of Appeals, and remand to the

Court of Appeals with instructions that a judgment of acquittal be entered.

                                             Respectfully submitted,

                                              /S/ John Donahue
                                             JOHN DONAHUE
                                             TBA #05968300
                                             204N. 6th St.
                                             Waco, Texas 76701
                                             (254) 752-9090
                                             Fax (254) 753-1232
                                             Texascriminalattorney@yahoo.com




                                         5
                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Corrected
Petition for Discretionary Review was forwarded to the following on October 16,
2015.

                                            /S/ John Donahue
                                           JOHN DONAHUE

Sterling Harmon                            Christopher David Harvey, #02016029
Ass’t District Attorney                    Ellis Unit
McLennan County, Texas                     1697 FM 980
Waco, TX 76701                             Huntsville, TX 77343
(254) 757-5084
(254) 757- 5021
Sterling.Harmon@co.mclennan.tx.us




                                       6
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1.   This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
     because:

     O     this brief contains 1631 words, including the parts of the brief exempted
           by TEX. R. APP. P. 9.4(i)(1), or,

     G     this brief uses a monospaced typeface and contains _____ lines of text,
           excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

2.   This brief complies with the typeface requirements and the type style
     requirements of TEX. R. APP. P. 9.4(e) because:

     O     this brief has been produced on a computer in conventional typeface
           using Corel Wordperfect 8.0 in Times New Roman 14 point font in the
           body of the brief and Times New Roman 12 point font in the footnotes.

     G     this brief is a typewritten document printed in standard 10 character per
           inch monospaced typeface.



 /S/ John Donahue
JOHN DONAHUE
Attorney for Appellant
Dated: October 16, 2015




                                        7
                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00067-CR

CHRISTOPHER DAVID HARVEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2013-840-C1


                          MEMORANDUM OPINION


      In two issues, appellant, Christopher David Harvey, challenges his conviction for

assault of a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014).

Specifically, Harvey challenges the sufficiency of the evidence supporting his conviction

and argues that the State committed reversible error by repeatedly stating that he is a

“rapist” during the punishment phase of trial. Because we conclude that the evidence is
sufficient to support Harvey’s conviction, and because Harvey waived his complaint

about the State’s argument during the punishment phase, we affirm.

                             I.      SUFFICIENCY OF THE EVIDENCE

       In his first issue, Harvey contends that the evidence supporting his conviction is

insufficient because the testimony at trial failed to show that the officer’s injury was

caused by his conduct. We disagree.

A.     Standard of Review & Applicable Law

       In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
       Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
       standard gives full play to the responsibility of the trier of fact fairly 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. “Each fact need not point directly and independently to the guilt of
       the appellant, as long as the cumulative force of all the incriminating
       circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
       at 13.

Id.

       Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,


Harvey v. State                                                                              Page 2
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:    “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

       The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.     Facts

       On the evening of April 9, 2013, McLennan County Deputy Sheriff Rebecca Mabry

and her partner, Deputy Brent Ewing, attempted to serve a felony warrant on Harvey.

They first went to Harvey’s home address, but he was not there. The deputies then

received information that Harvey likely was at the residence of Rebekah Rosario. The

deputies proceeded to Rosario’s residence. After obtaining Rosario’s consent to search

the residence, the deputies found Harvey inside sitting on a couch. At this point, one of


Harvey v. State                                                                          Page 3
the deputies told Harvey to stand up, turn around, and put his hands behind his back

because he was under arrest. As the deputies attempted to handcuff him, Harvey

decided to run. Deputy Mabry described the scene as follows:

       He changed his mind and decided he was gonna [sic] run—

                  ...

       --before I could get the cuff on.

                  ...

       He quickly kind of elbowed me, and when he did I tried to hold tighter. So
       then it kind of got into a struggle and he pushed me against the door frame.
       We were by the door so he pushed me against the door frame and I fell, and
       then that’s when he got free and he bolted.

When asked what happened when the deputies tried to handcuff Harvey, Deputy Ewing

corroborated Deputy Mabry’s testimony by stating the following:

       At that point in time he started to spin around. I felt him start to move, and
       I had him kind of by fingers in a hold like this to try to cuff him. And as he
       started to move around he hit Deputy Mabry with his shoulder. . . . That
       knocked her to the ground.
              ....

             Yeah, he would have had to do that intentionally, ‘cause that’s the
       only way he could have made the escape that he was doing from the house.

       Later, Deputy Mabry discovered that the fall had caused a minor scrape on her

knee that she described as “painful.” Deputy Ewing testified that he did not observe a

scrape on Deputy Mabry’s knee prior to the incident and that he believed that the scrape

was a result of the altercation with Harvey.


Harvey v. State                                                                         Page 4
        Thereafter, Harvey called Rosario to testify on his behalf. Appearing in jail

clothing and admitting that she was serving time for drug possession, Rosario testified

that she had a good view of the incident and that Harvey leapt past the deputies and ran

away.1 According to Rosario, Harvey “did not have any contact with anybody. He

literally just kind of left out the front door, and he didn’t even run down the steps. He

jumped off the steps.”

C.      Discussion

        On appeal, Harvey asserts that the trial testimony failed to show that Deputy

Mabry’s injury was caused by his conduct. The Texas Court of Criminal Appeals has

broadly interpreted the definition of bodily injury to include “even relatively minor

physical contacts so long as they constitute more than mere offensive touching.” Lane v.

State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Moreover, it is important to note that

Harvey was charged by indictment with assault against a public servant, see TEX. PENAL

CODE ANN. § 22.01(b)(1), and that an assault against a public servant is a result-oriented

offense. Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.); see Johnson

v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). Therefore, the focus is on the result

of the defendant’s action and his culpable mental state, not on the precise act or the nature



        1 On cross-examination, Rosario acknowledged that, in addition to drug possession, she had also
engaged in theft by check. Rosario further testified that Harvey comes by often and that he is close with
Rosario’s son. Additionally, Rosario’s statement that she could clearly observe the incident was
undermined by Deputy Ewing, who noted that Rosario’s view was likely obscured from where she was
standing.

Harvey v. State                                                                                   Page 5
of the conduct committed by the defendant. See Johnson, 364 S.W.3d at 298; Brooks, 967

S.W.2d at 950.

       Here, Deputy Mabry testified that, in his attempt to flee the deputies, Harvey

pushed her to the floor, which resulted in a scraped knee that was “painful.” See Wingfield

v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (noting that “a jury

may infer that a victim actually felt or suffered physical pain because people of common

intelligence understand pain and some of the natural causes of it” (citing Randolph v. State,

152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.))); see also Wawrykow v. State, 866

S.W.2d 87, 88-89 (Tex. App.—Beaumont 1993, pet. ref’d) (determining that a rational jury

could have inferred that pushes to the chest caused “physical pain”); Goodin v. State, 750

S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (stating that people of

common intelligence understand what naturally causes pain).              This testimony is

sufficient for the jury to infer that Deputy Mabry suffered physical pain as a result of

Harvey’s conduct.

       Therefore, because the focus of the inquiry is on the result of Harvey’s conduct,

we conclude that the State adduced sufficient evidence to demonstrate that Harvey

knowingly or intentionally caused bodily injury to Deputy Mabry’s knee. See TEX. PENAL

CODE ANN. § 22.01(b)(1); Johnson, 364 S.W.3d at 298; Brooks, 967 S.W.2d at 950; see also

Lucio, 351 S.W.3d at 894. Accordingly, we overrule Harvey’s first issue.




Harvey v. State                                                                        Page 6
                         II.   THE STATE’S PUNISHMENT ARGUMENT

       In his second issue, Harvey asserts that the State committed reversible error by

repeatedly stating to the jury during the punishment phase of trial that he had raped a

sixteen-year-old girl.

       During the punishment phase of trial, the State introduced evidence of Harvey’s

prior criminal convictions—one of which was for second-degree-felony sexual assault.

At various times during argument, the State referred to Harvey as a “rapist” or as

someone who “raped a 16-year-old.” However, Harvey did not object to any of these

instances.

       Texas courts have held that a “defendant’s failure to object to a jury argument or

a defendant’s failure to pursue to an adverse ruling his objection to a jury argument

forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d

73, 89 (Tex. Crim. App. 1996); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010)

(“[W]e will not review the propriety of the prosecutor’s arguments, [when] appellant

failed to object to those arguments at trial.”); Morris v. State, 460 S.W.3d 190, 197 (Tex.

App.—Houston [14th Dist.] 2015, no pet.); see also Freeman v. State, No. 11-13-00232-CR,

2015 Tex. App. LEXIS 8515, at *10 (Tex. App.—Eastland Aug. 13, 2015, no pet. h.) (mem.

op., not designated for publication). Therefore, because Harvey failed to object to the

references made in the State’s argument, we conclude that Harvey has forfeited his right

to complain about this issue on appeal. See TEX. R. APP. P. 33.1; Mays, 318 S.W.3d at 394;


Harvey v. State                                                                       Page 7
Cockrell, 933 S.W.2d at 89; Morris, 460 S.W.3d at 197; see also Freeman, 2015 Tex. App. LEXIS

8515, at *10.

       Nevertheless, despite the general rule regarding preservation, Harvey urges this

Court to apply the Almanza egregious-harm standard to jury-argument complaints. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). This is essentially a

fundamental-error argument, which can be waived by failure to object in the trial court.

See Mays, 318 S.W.3d at 393-94 (concluding that appellant failed to preserve his

complaints about “a series of egregiously improper remarks” by not objecting to those

arguments at trial); Morris, 460 S.W.3d at 197 (“Appellant, however, argues that the jury

argument is incurable fundamental error. Even if the State’s arguments were incurable

and rose to the level that it deprived appellant of his right to due process of law, appellant

waived this complaint by failing to object in the trial court.”); see also Freeman, 2015 Tex.

App. LEXIS 8515, at *10 (“Even if the State’s arguments were incurable and rose to the

level that they deprived Appellant of her right to due process of law, Appellant waived

her complaints by failing to object in the trial court.”). Therefore, we are not persuaded

by Harvey’s argument regarding the application of Almanza. Based on the foregoing, we

overrule Harvey’s second issue.

                                      III.   CONCLUSION

       Having overruled both of Harvey’s issues on appeal, we affirm the judgment of

the trial court.


Harvey v. State                                                                         Page 8
                                             AL SCOGGINS
                                             Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 17, 2015
Do not publish
[CRPM]




Harvey v. State                                            Page 9
