Opinion issued January 17, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00648-CR
                           ———————————
                CLEMMIE ELNORA ST. AMAND, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1182011



                         MEMORANDUM OPINION

      A jury found appellant, Clemmie Elnora St. Amand, guilty of third-degree-

felony assault of a public servant.1 The trial court assessed her punishment at two


1
      See TEX. PENAL CODE ANN. § 22.01(b)(1) (Vernon 2011).
years’ probation. In four issues, appellant argues that (1) the evidence was legally

insufficient to support the finding that she knew the complainant was a public

servant; (2) she was denied effective assistance of counsel; (3) the trial court erred

in denying her the right to confront and cross-examine a witness to establish bias;

and (4) the trial court erred in denying her the right to admit evidence of multiple

subpoenas and to cross examine a witness concerning the documents sought by the

subpoenas and the failure to respond to the subpoenas.

      We affirm.

                                    Background

      Appellant’s autistic son attended a special-needs program at Bailey Middle

School, a school in Spring Independent School District located in Harris County.

On September 5, 2008, during the second week of classes, appellant attempted to

drop her son off at school by knocking on a side door, which was marked, “STOP!

Not an Entrance.” This door was not used as an entrance for parents dropping off

students.

      Cynthia Howlett, a dyslexia specialist, testified that she answered the door at

about 8:15 or 8:30 a.m., and appellant told her she was there to drop off her son.

Howlett testified that she told appellant that no teachers were there yet, and

appellant should wait while Howlett found someone to take her son. Howlett

testified that she called for the complainant, Elizabeth Dill, who worked at the


                                          2
school as a paraprofessional. She testified that appellant seemed “irate,” so, after

Dill approached, Howlett went back into her classroom to type a report about this

interaction and to call for an administrator.

      Dill testified that she arrived at school that day around 8:15 a.m. and heard

Howlett ask for her help with a parent. She testified that she approached and spoke

to appellant about proper student drop-off procedures. Both appellant and Dill

testified that this was the first time they had ever met each other. Appellant told

Dill that she needed to leave her son there so that she could drop off her daughter

at another school.

      Howlett and Dill testified that appellant’s son proceeded to walk past the

talking adults into one of the classrooms. Jerrard Stanley, another paraprofessional

who was familiar with appellant’s son, escorted him to the correct classroom while

appellant and Dill spoke.      Appellant’s son then approached Dill, who began

unpacking his backpack. Appellant approached and told Dill she would unpack

her son’s backpack herself. She told Dill that she would not leave her child

unattended with Dill. Dill stuck her arm in front of appellant, telling her that this

was part of her son’s everyday routine. Dill stated that, while both women had

their hands on the backpack, appellant struck her chest with her fist. Dill fell back

onto a desk and sustained bruising. Howlett testified that she heard yelling, but she

did not witness the assault because she was in her classroom.

                                           3
      Stanley testified that he was in the room with Dill when Howlett told them

there was a parent outside. Stanley had met appellant previously because her son

had been assigned to Stanley’s room at the beginning of the year. Stanley stated

that appellant’s son had attended the first day of school in his classroom, but he

had not returned after the first day. He understood that appellant “was unhappy

about the first day” because her son “came home with a soiled diaper.” Stanley

testified that he had not been aware that the student had soiled his diaper at school,

and if he had known, he would have changed him. Stanley stated that even after

the student was transferred to another classroom, Stanley still interacted with him

because the two special-education classrooms interact throughout the day.

Regarding the complaint about the soiled diaper, Stanley testified, “You never

want something like that to happen because you . . . want to do your best.” He

believed the actual complaint was directed at appellant’s son’s teacher and not at

him, as the paraprofessional.

      Stanley testified that appellant became upset when her son entered his

former classroom. Appellant accused Stanley and Dill of allowing her son to walk

off, and she claimed they were not paying attention to him. Stanley stated that he

and Dill attempted to calm appellant, and he told her that it was okay, that the

students went in and out of both classrooms all day, and that he would get her son.

Stanley then directed the student across the hall to his new classroom. Stanley was

                                          4
observing Dill attempting to help the student unload the contents of his backpack

when appellant approached Dill, attempted to pull the backpack away, and told

Dill that she would take care of her son’s backpack. He then saw appellant strike

Dill with a closed fist. Stanley stepped between the two women and told appellant

that she needed to leave. Appellant “stormed” out of the room and yelled.

      On cross-examination, appellant’s counsel began to question Stanley about

the student’s first day and the incident with the soiled diaper. Counsel asserted that

the State had opened the door by questioning Stanley about his prior relationship

with appellant’s son and the reason he was transferred to a different classroom.

Counsel sought to question Stanley further about the issue to demonstrate his bias

against appellant. The trial court allowed her to “ask him if there was a complaint

filed by [appellant] against him based on an incident that occurred the first day of

school, the second day of school.” The trial court ruled, “We’re not going to go

into this soiled diaper incident.” The trial court also stated that appellant could ask

whether “there [was] an incident in which there was an argument between

[Stanley] and [appellant] after a complaint was filed. . . .”

      Appellant’s counsel then questioned Stanley regarding the filing of a

complaint on or around the first day of school. Stanley again testified that there

“was an issue” and that he assumed that appellant had directed her concern at her

son’s teacher. Stanley testified that appellant met with the teacher and principal at

                                           5
that time, but he was not allowed to stay in the meeting because they had agreed

that the paraprofessionals would not be involved. Stanley stated that he believed

appellant’s son was transferred to a different classroom because of the soiled

diaper incident, but “they never talked to [him] directly about it.” Appellant’s

attorney asked, “Okay, now whose responsibility is it for, if a diaper has to be

changed?”    The State objected on the basis of relevance, and the trial court

sustained the objection.     Appellant’s attorney moved on to a new line of

questioning. Appellant never made an offer of proof or bill of exception regarding

any testimony she was prevented from eliciting from Stanley.

      Appellant testified on her own behalf. She stated that she had not met Dill

prior to arriving at the school on the morning of the incident. She testified that she

had dropped her son off at the side door before and that she was uncertain why

there was a problem dropping him off that morning. Appellant testified that, once

she and her son had entered the correct classroom, her son went to Dill and Dill

helped him remove his backpack. Appellant stated that she asked Stanley, who

was also in that same room, whether it was okay for her to leave her son there, and

he told her it was fine because the students “float from class to class.” Dill then

began helping the student unload his backpack. Appellant approached and told her

“that’s okay because I’m going to take my son with me.” Appellant testified that

Dill then pulled the backpack away from appellant’s reach and appellant “fell into

                                          6
her.” At that point, Stanley approached, took the backpack, and “then they started

saying that [appellant] assaulted [Dill].”

      Appellant introduced a recording of the school district police department’s

dispatch call regarding the incident and played it for the jury. Appellant also

sought to introduce multiple subpoenas she had issued in an attempt to procure the

recording. The State objected to the admission of the subpoenas on the basis of

relevance.   Appellant argued that the subpoenas went unanswered and were

relevant to show that the school district did not want to comply with appellant’s

investigation of the case. The trial court sustained the objection.

      The jury found appellant guilty of assault of a public servant. This appeal

followed.

                            Sufficiency of the Evidence

      In her first issue, appellant contends that the evidence was legally

insufficient to sustain her conviction because there was no evidence that she knew

the complainant was a public servant.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

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


                                             7
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted).   We may not re-evaluate the weight and credibility of the

evidence or substitute our judgment for that of the fact finder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007).           We afford almost complete

deference to the jury’s determinations of credibility. See Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (“When the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the prosecution and therefore defer to

that determination.”).




                                         8
B.    Analysis

      A person commits assault if the person intentionally, knowingly, or

recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1)

(Vernon 2011). If the assault is committed against “a person the actor knows is a

public servant while the public servant is lawfully discharging an official duty,” the

statute provides for increased punishment. Id. § 22.01(b)(1). A “public servant” is

defined as a “person . . . employed, or otherwise designated as . . . an officer,

employee, or agent of the government.” Id. § 1.07(a)(41)(A) (Vernon Supp. 2012).

An independent school district is an agency of the state. Guin v. State, 209 S.W.3d

682, 684 (Tex. App.—Texarkana 2006, no pet.); Moore v. State, 143 S.W.3d 305,

311 (Tex. App.—Waco 2004, pet. ref’d) (holding that school superintendent is

“public servant” under section 1.07(a)(41)(A)); see also In re J.P., 136 S.W.3d

629, 630 (Tex. 2004) (noting that juvenile commits assault on public servant

pursuant to section 22.01(b)(1) by hitting and kicking public school teacher);

Powell v. State, 549 S.W.2d 398, 400 (Tex. Crim. App. 1977) (holding that school

district is branch of government).

      Appellant argues that the State failed to prove that she knew that Dill was a

public servant discharging an official duty. Appellant argues that she had not met

Dill prior to the incident, no one identified Dill as a school employee, and Dill was

not wearing a uniform or a badge identifying her as a school employee.


                                          9
      In this case, when appellant sought to leave her son at the school, Howlett

summoned Dill to help her. Dill came to the door to take appellant’s son. She

discussed with appellant the school’s drop-off procedures and explained that no

visitors were allowed in the school unless they had come through the front office.

Appellant testified that her son approached Dill, and Dill helped her son remove

his backpack.      Appellant observed that Stanley—a paraprofessional whom

appellant knew had worked with her son previously—was also in the room with

Dill. Dill relayed to appellant that she and the student had a morning routine

together. After appellant allegedly struck Dill, appellant sought to report the

incident to the school principal.

      When we consider the facts in the light most favorable to the verdict, we

conclude the jury could infer that appellant knew Dill was an employee of the

school discharging her duties. See Hooper v. State, 214 S.W.3d 9, 14–15 (Tex.

Crim. App. 2007) (holding that jury is permitted to make reasonable inferences

from evidence). Dill was present in the classroom at the start of the school day;

she was summoned by a teacher to help appellant and her son; she had knowledge

of school policies; and she demonstrated a familiar demeanor toward the student

and other school staff.

      Appellant cites Arnold v. State and argues that, because Dill never identified

herself as a public servant and was not wearing a badge or some other distinctive

                                        10
clothing or identification, the State failed to establish that appellant knew Dill was

a public servant. See 659 S.W.2d 45, 46–47 (Tex. App.—Houston [14th Dist.]

1983, no pet.) (upholding conviction for assault of public servant when officer

testified that although he was not in uniform at time of assault, he identified

himself as officer to assailant). However, appellant cites no authority, nor could

we find any, indicating that such an explicit identification is required.

      We overrule appellant’s first issue.

                               Ineffective Assistance

      In her second issue, appellant argues that her trial counsel was ineffective for

failing to make a bill of exception regarding the excluded testimony of Jerrard

Stanley concerning the soiled diaper incident.

A.    Standard of Review

      To make a showing of ineffective assistance of counsel, an appellant must

demonstrate that (1) his counsel’s performance was deficient and (2) there is a

reasonable probability that the result of the proceeding would have been different

but for his counsel’s deficient performance. See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Cannon v. State, 252 S.W.3d 342,

349 (Tex. Crim. App. 2008).        The appellant must prove ineffectiveness by a

preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010). “Failure of appellant to make either of the required showings of


                                          11
deficient performance and sufficient prejudice defeats the claim of ineffective

assistance.” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see

also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.”).

      The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires the appellant to demonstrate

prejudice—a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland, 466 U.S.

at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is

a probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To

                                         12
prevail, the appellant must provide an appellate record that affirmatively

demonstrates that counsel’s performance was not based on sound strategy. See

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at

813 (holding that record must affirmatively demonstrate alleged ineffectiveness).

      In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65

S.W.3d at 63. Because the reasonableness of trial counsel’s choices often involves

facts that do not appear in the appellate record, the Court of Criminal Appeals has

stated that trial counsel should ordinarily be given an opportunity to explain his or

her actions before a court reviews that record and concludes trial counsel was

ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v.

State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Massaro v. United

States, 538 U.S. 500, 504–05, 123 S. Ct. 1690, 1694 (2003) (emphasizing

importance of developing record specifically addressing sufficiency of counsel’s

representation and stating, “When an ineffective-assistance claim is brought on

direct appeal, appellate counsel and the court must proceed on a trial record not

developed precisely for the object of litigating or preserving the claim and thus

often incomplete or inadequate for this purpose”).




                                         13
B.     Analysis

       Appellant sought to question Stanley about her son’s first day and the

incident with the soiled diaper. Appellant asserted that the State had opened the

door by questioning Stanley about his prior relationship with appellant’s son and

the reason he was transferred to a different classroom, and she intended to

demonstrate Stanley’s bias against her. The trial court allowed her to ask Stanley

about any complaints appellant had filed against him based on the incident from

the first day of school and whether “there [was] an incident in which there was an

argument between [Stanley] and [appellant] after a complaint was filed,” but the

trial court refused to allow appellant to question Stanley regarding the details of the

incident itself.

       Appellant questioned Stanley regarding the filing of a complaint on or

around the first day of school. Stanley testified that there “was an issue” and that

he assumed that appellant had complained about her son’s teacher. Stanley stated

that he believed appellant’s son was transferred to a different classroom because of

the soiled diaper incident, but “they never talked to [him] directly about it.”

Appellant’s attorney asked, “Okay, now whose responsibility is it for, if a diaper

has to be changed?” The State objected on the basis of relevance, and the trial

court sustained the objection. Appellant’s attorney moved on to a new line of




                                          14
questioning. She never made an offer of proof or bill of exception regarding any

testimony she was prevented from eliciting from Stanley.

       Appellant argues that her counsel’s failure to make a bill of exception

regarding Stanley’s testimony “denied [her] the right to convince the court to allow

[her] to explore the potential bias of a witness” and that this error was clearly

prejudicial and undermined confidence in the outcome of the trial. However,

appellant did not assert ineffective assistance of counsel in her motion for new

trial, and her counsel has not testified regarding her reasoning for not making a bill

of exception in relation to Stanley’s testimony. As the Court of Criminal Appeals

has stated, “[T]rial counsel should ordinarily be afforded an opportunity to explain

[her] actions before being denounced as ineffective.” Rylander, 101 S.W.3d at

111.   Without more than the arguments made here by appellant, we cannot

determine whether her trial counsel acted in accordance with a reasonable strategy.

See id.; Bone, 77 S.W.3d at 833; see also Massaro, 538 U.S. at 504–05, 123 S. Ct.

at 1694 (stating that appellate record is typically insufficient to support ineffective

assistance claim because it does not reflect reasons for counsel’s acts or

omissions); Mitchell, 68 S.W.3d at 642 (“The reasonableness of counsel’s choices

often involves facts that do not appear in the appellate record.”).

       Thus, appellant has failed to establish her claim of ineffective assistance of

counsel. See Strickland, 466 U.S.at 687, 104 S. Ct. at 2064; Cannon, 252 S.W.3d

                                          15
at 349; see also Rylander, 101 S.W.3d at 110 (holding that failure to establish

either prong defeats claim of ineffective assistance).

      We overrule appellant’s second issue.

                                Excluded Evidence

      In her third issue, appellant argues that the trial court erred in denying her

the right to admit evidence of her previous dispute with Stanley concerning a

soiled diaper. In her fourth issue, appellant argues that the trial court erred in

denying her the right to admit evidence of multiple subpoenas issued to the police

department and to cross-examine a witness regarding that evidence.

A.    Standard of Review

      We review a trial court’s decision to exclude evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its

discretion if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002). We will uphold the trial court’s evidentiary

ruling if it was correct on any theory of law applicable to the case. See De La Paz

v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).




                                          16
B.    Jerrard Stanley’s Testimony

      Appellant argues that she sought to introduce evidence that she had a

previous dispute with Stanley concerning a soiled diaper because the State opened

the door and because the evidence would have been probative of Stanley’s bias

against her. She argues that the trial court denied her the right to confront and

cross-examine Stanley regarding this previous dispute. However, she failed to

preserve this error for consideration on appeal.

      In order to preserve error regarding a trial court’s decision to exclude

evidence, the complaining party must comply with Texas Rule of Evidence 103.

Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Rule 103 provides,

in relevant part, that error may not be predicated upon a ruling that excludes

evidence unless “the substance of the evidence was made known to the court by

offer, or was apparent from the context within which questions were asked.” TEX.

R. EVID. 103(a)(2); see also Mays, 285 S.W.3d at 889 (holding that offer of proof

may consist of concise statement by counsel or may be in question-and-answer

form). Appellant made no such offer of proof regarding the testimony she wished

to elicit from Stanley regarding the conflict over the soiled diaper. Thus, she failed

to preserve this complaint for appellate review. See Mays, 285 S.W.3d at 889.

      We overrule appellant’s third issue.




                                         17
C.    Subpoenas for the Dispatch Tape

      Appellant further argues that the trial court violated her Sixth Amendment

confrontation right because it refused to admit evidence showing bias against her.

Appellant argues that the trial court erred in denying her the right to admit

seventeen unanswered subpoenas requesting production of a recording of the

dispatch call made regarding the incident and to question the records custodian to

establish bias against her.

      Here, appellant—not the State—sought to introduce multiple subpoenas

obtained by her in an attempt to procure the recording, and she sought to question

the custodian of the police records regarding the unanswered subpoenas. The State

objected on the basis of relevance. Appellant argued that the subpoenas went

unanswered and were relevant to show that the school district did not want to

comply with her investigation of the case. Appellant further argued that “right

now it is our turn to present a case” and that the subpoenas “are certified copies

under the Rule in reference to a 911 tape.” Appellant further argued that her

questions for the records custodian were “not pertaining to anything that’s outside

the scope of what his duties are” and were “very relevant in reference to our theory

of the case.” The trial court sustained the State’s objection. Appellant did not

raise an objection on the basis of the Sixth Amendment or on the basis of her right

to confront or cross-examine the witnesses against her.


                                        18
      To preserve a complaint for review on appeal, a party must make a timely,

specific request, objection, or motion to the trial court that states the grounds for

the ruling sought, and the trial court must rule on the request, objection, or motion.

TEX. R. APP. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510 (Tex. Crim. App.

2001).   Furthermore, the complaint on appeal must comport with the trial

objection. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

      At trial, appellant argued only that these documents and testimony were

relevant to her case in chief.        She did not assert that confronting or cross-

examining the records custodian—a witness whom she called—would aid her

defense in any way, nor did she argue that the failure to admit the subpoenas and

any related testimony would violate her rights under the Sixth Amendment. Thus,

appellant’s objection in the trial court did not preserve any appellate complaint

regarding her Sixth Amendment right of confrontation.          See TEX. R. APP. P.

33.1(a); Swain, 181 S.W.3d at 367; see also Muniz v. State, 851 S.W.2d 238, 255

(Tex. Crim. App. 1993) (holding that failure to timely and specifically object

waives even constitutional rights).

      We overrule appellant’s fourth issue.




                                           19
                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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




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