                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00410-CR

BRANDON MOORE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 07-05683-CRF-272


                          MEMORANDUM OPINION


      A jury found Appellant Brandon Moore guilty of the offense of aggravated

assault on a public servant. The trial court assessed his punishment, enhanced by a

previous felony conviction, at twenty-eight years’ imprisonment. In two issues, Moore

contends that the evidence is legally and factually insufficient to prove he caused

serious bodily injury to the complainant.      Moore does not challenge whether the

complainant’s injury constituted “serious bodily injury”; rather, Moore challenges

whether the complainant suffered the injury as a result of his actions. We will affirm.
       The court of criminal appeals recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis

factual-sufficiency standard” and 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. All other cases to the contrary, including

Clewis, are overruled.” Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, 14 (Tex.

Crim. App. Oct. 6, 2010). Accordingly, we will apply the same standard of review to

both of Moore’s sufficiency complaints.

       When reviewing a challenge to the sufficiency of the evidence to establish the

elements of a penal offense, we must determine whether, after viewing all the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if

the finding of the trier of fact is rational by viewing all of the evidence admitted at trial

in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

       Section 6.04(a) of the Penal Code states: “A person is criminally responsible if

the result would not have occurred but for his conduct, operating either alone or

concurrently with another cause, unless the concurrent cause was clearly sufficient to

produce the result and the conduct of the actor clearly insufficient.” TEX. PEN. CODE

Moore v. State                                                                         Page 2
ANN. § 6.04(a) (Vernon 2003). Under this section, a “but for” causal connection must be

established between the defendant’s conduct and the resulting harm. Robbins v. State,

717 S.W.2d 348, 351 (Tex. Crim. App. 1986). If concurrent causes are present, two

combinations exist to satisfy the “but for” requirement: (1) the defendant’s conduct

may be sufficient by itself to have caused the harm, regardless of the existence of a

concurrent cause; or (2) the defendant’s conduct and the other cause together may be

sufficient to have caused the harm. Id. However, section 6.04(a) further defines and

limits the “but for” causality for concurrent causes by the last phrase, “unless the

concurrent cause was clearly sufficient to produce the result and the conduct of the actor

clearly insufficient.” Id. (emphasis added). Thus, the evidence of causation will be

insufficient in this case only if Moore’s conduct, standing alone, was “clearly

insufficient” to cause the injury. See St. Clair v. State, 26 S.W.3d 89, 100 (Tex. App.—

Waco 2000, pet. ref’d).

       In this case, Sergeant Robert Johnson of the Bryan Police Department testified

that, on June 7, 2007, he was on patrol, wearing his full police uniform and driving a

marked patrol unit, when he received a call to assist two undercover officers in

executing an arrest warrant on Moore. When Johnson arrived at the location, he saw

Moore and told him he needed to talk to him. Johnson had Moore put his hands on the

trunk of the patrol car while he confirmed that the warrants were ready to be executed.

Johnson then attempted to place Moore under arrest. Johnson asked for Moore’s left

hand, and as he went to grab Moore’s left hand, Moore pulled away from him. As

Johnson pushed Moore up against the patrol car to try and keep control of him, another

Moore v. State                                                                      Page 3
person approached. Johnson turned his attention to the other person, pointed to him,

and said, “You need to stay back across the street.” When Johnson did that, Moore was

able to “whip his body around” and then tackled Johnson. When asked how hard he

hit the ground, Johnson replied:

               I hit the ground -- it was pretty hard. I think the back part of my
       left hip around the waistline, that is what hit the ground first.

             And Mr. Moore was right on top of me, and his body weight and
       my body weight; we crashed against the concrete and pretty much drove
       my shoulder into the rest of my body as well, so I got jarred pretty good.

Johnson was trying to hold onto Moore, but when the other person approached them

again, Johnson decided that “this was kind of a fight-for-your-life-now type of deal.”

Johnson let go of Moore, yelled at the other person to get back, and grabbed his radio

and called for assistance. Moore took off running, and the other person ran across the

street. Johnson got up and chased Moore. He eventually caught up to Moore and

tackled him. Johnson attempted to place Moore under arrest again, but Moore again

resisted being handcuffed.     One of the undercover officers arrived to help, and,

together, Johnson and the undercover officer were able to put Moore in handcuffs.

Moore was then placed in another officer’s patrol car for transport. Johnson testified

that he knew he was hurt when he hit the concrete and even when he was chasing

Moore, but once Moore had finally been placed in the patrol car, that is when Johnson

“really knew that something was wrong. I started getting really tight in my back. I was

sore all over. I just know I was hurting.”




Moore v. State                                                                       Page 4
       In 1994 while going through Army Airborne School, Johnson had sustained a

herniated disk in his lower back. He had surgery to repair the herniated disk in 1995.

After the surgery, Johnson strained the muscles in his back a couple of times while in

the Army, “doing a rough march or something like that,” but he received pain

medication and that was the extent of it.

       Johnson testified that he had no other problems with the vertebrae or disks in his

back after his surgery until the incident with Moore. Since September 2003, he had been

on the SWAT team at the Bryan Police Department, and he was in top physical

condition.

        When asked about the first night following the incident with Moore, Johnson

replied:

              I didn’t sleep that well. My back hurt a lot. My shoulder was
       aching, and I didn’t -- from shoulder, my arm was pretty numb, the
       fingertips were tingling a lot.

             But the most pain I had was in my lower back and I had a pain
       going down my leg.

On a scale of one to ten, Johnson ranked his pain during the first night at “[p]robably

around 7 or 8.” The next morning he got up with the same kind of aches and pains as

the day before and feared there was “probably something a little more wrong than just

getting jarred up and not feeling well.” Johnson decided he needed to see the doctor

and went to see Dr. Thomas Welch.

       Dr. Welch testified that Johnson came to see him in June 2007. Johnson indicated

to him that he had been injured in an altercation with a prisoner when they had


Moore v. State                                                                     Page 5
wrestled and both gone down to the ground. Johnson never indicated that, prior to the

incident, he was having symptoms of pain or any significant symptoms of impairment

or loss of use. Johnson complained of back pain and hip pain on the right side that

went into his leg, as well as shoulder pain. Dr. Welch began treating these injuries with

medications to alleviate some of the pain. Johnson was still trying to work at that time,

but, as time went on, Dr. Welch initiated some physical therapy to try to help with

treating the back and shoulder area, and Johnson eventually needed his job modified

because he was not able to continue to perform. Johnson also underwent at least one

cortisone injection into the spine to try to alleviate the pain, but his symptoms persisted.

Dr. Welch opined that although it could have been something else, if Johnson was not

reporting any impairment or pain and suddenly was involved in an altercation during

which he was slammed to the ground causing his back and hip to impact concrete and

causing him to immediately feel significant pain and impairment, then the injury and

the cause of his pain, in all medical probability, were due to the injuries sustained

during the altercation.

       Because Johnson had persisting symptoms and because there were some findings

on an MRI that would indicate there was nerve impingement, Dr. Welch sent Johnson

to Dr. Rudy Briner, a neurosurgeon.        Dr. Briner testified that the history Johnson

reported to him was that sometime before the incident with Moore, Johnson had had an

operation on his back but that he had recuperated very well. But after the altercation

with Moore,




Moore v. State                                                                        Page 6
             He primarily had pain in the right hip and down his leg, and it was
       an activity-related pain, him being up on his feet or attempting any
       vigorous physical walks for a distance. He couldn’t run.

             He couldn’t do any of the jogging or exercise that he was used to,
       and he couldn’t do the physical performance tests that the police go
       through -- I am not sure what they call them -- while he had attempted
       and made an effort to do those things.

       Dr. Briner initially gave Johnson several epidural steroid injections to calm the

pinched nerve. They did not help. Dr. Briner eventually operated on Johnson on

February 20, 2008. During the operation, Dr. Briner found a “mushy disk,” which

“irritates the nerve over and over. Weightbearing makes it squish out and kind of bang

against the nerve.”     Dr. Briner opined that the “mushy disk” was not caused by

Johnson’s prior back operation. Dr. Briner testified:

             Q.       So in medical probability would it be fair to say if this was
       something that had been caused by the prior surgery, this would have
       been a hardened disk as you indicated before, and you needed to chip
       way [sic] at it?

                 A.   Right.

               Q.    But the fact that this was a mushy disk, did that tell you that
       this injury may have been more recent, based on medical probability?

               A.      A soft disk that is herniated and pushing out is the typical
       thing that we see in that situation where some trauma stresses the disk
       past its ability to withhold the pressure.

                 Q.   Okay. But not related to a previous surgical procedure?

                 A.   Right.

Dr. Briner also stated generally that a herniated disk can be caused by coughing or

sneezing while in the wrong position or by lifting and bending and twisting activities,


Moore v. State                                                                         Page 7
but he opined specifically that Moore’s act of tackling Johnson to the concrete could

have caused Johnson’s injury. Dr. Briner testified:

              Q.    Great. Of course, you weren’t there in June of 2007 when
       Officer Johnson was injured?

                 A.   That’s correct.

              Q.     But would the type of injury that occurred in Officer
       Johnson’s back, would that be consistent with someone receiving impact
       to their hip bone or to their back upon striking the ground which would
       be made of concrete or a flat surface?

                 A.   It certainly could.

       Because of Dr. Briner’s testimony, the record contains evidence that Moore’s

conduct was not “clearly insufficient” to cause Johnson’s injury. See id. Moreover,

based on both Dr. Briner’s and Dr. Welch’s testimony as well as Johnson’s testimony of

his ongoing pain which began when Moore tackled Johnson, we conclude that a

rational trier of fact could have found that Moore caused Johnson’s injury. We overrule

Moore’s issues and affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 10, 2010
Do not publish
[CRPM]




Moore v. State                                                                   Page 8
