









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-09-00005-CR
______________________________


EARNEST DWAIN MORALES, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 8th Judicial District Court
 Delta County, Texas
Trial Court No. 6954





Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss

O P I N I O N

	The sister of Earnest Dwain Morales had been arrested earlier in the day by Sergeant Paul
David Robertson of the Delta County Sheriff's Department.  So, when Morales found Robertson and
fellow officer Josh Richardson at a convenience store in Cooper, Texas, he approached them in the
parking lot to discuss the arrest.  A struggle ensued.  As a result, Robertson had scraped knees and
pepper spray in his eyes and upper respiratory system.  Morales was convicted of assault on a public
servant and sentenced to three years' confinement and fined $10,000.00.  
	On appeal, Morales contends that the evidence was legally and factually insufficient to
support the verdict and that the trial court erred by admitting evidence of his prior arrests.
	We affirm the judgment of the trial court because (1) legally and factually sufficient evidence
supports the jury's finding that Morales recklessly caused Robertson bodily injury, and (2) the trial
court did not abuse its discretion by admitting evidence of Morales' prior violent offenses.
(1)	Legally and Factually Sufficient Evidence Supports the Jury's Finding that Morales
Recklessly Caused Robertson Bodily Injury

	Morales challenges the legal and factual sufficiency of the evidence that he intentionally,
knowingly, or recklessly caused bodily injury to Robertson. (1)
	In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict and 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, 320
(1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In a factual sufficiency review,
we review all the evidence, but do so in a neutral light and determine whether the evidence
supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the
evidence that the jury's verdict  is clearly wrong or manifestly unjust.  Lancon v. State, 253 S.W.3d
699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007);
Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).  We must afford "due deference"
to the fact-finder's determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006);
see Young v. State, 242 S.W.3d 192, 198 (Tex. App.--Tyler 2007, no pet.).  And although, when we
review the factual sufficiency of the evidence, we have the ability to second-guess the fact-finder to
a limited degree, we should nonetheless be deferential, with a high level of skepticism about the fact-finder's verdict required before a reversal can occur.  Roberts, 220 S.W.3d at 524; Young, 242
S.W.3d at 198-99. 
	The elements of assault on a public servant are that a person (1) intentionally, knowingly, or
recklessly, (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) (Vernon Supp. 2008).  We use a hypothetically correct jury charge to evaluate both the legal
and factual sufficiency of the evidence. (2) Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008).
	Morales challenges the evidentiary sufficiency only with respect to the elements that he
caused bodily injury to Robertson and that he was at least reckless when he did so.  Because
evidentiary sufficiency is questioned, we set out, here, more of the salient facts before our analysis
of the issues.
	Robertson and Richardson had their patrol car parked at a convenience store.  Robertson
testified that, while he was standing next to the patrol car, Morales, very sweaty and visibly angry,
quickly approached him and began yelling and shaking his finger in Robertson's face regarding his
arrest of Morales' sister earlier in the day.  Morales "had a wild look in his eye" and claimed
ownership of an illegal knife found during his sister's arrest.  Intending to pat Morales down for
weapons, Robertson repeatedly ordered Morales to place his hands on the car, but Morales refused
to comply.  Robertson testified to the altercation that followed and, as an integral part of his
testimony, physically demonstrated the altercation for the jury with another officer.  The
demonstration was not (and could not be) transcribed fully; but the jury viewed it and necessarily
derived information from the testimony and demonstration beyond what it would have derived from
the testimony alone.  There was no objection to the demonstration, and no effort was made to assure
that the record reflected the details placed before the jury by the demonstration.
	Robertson testified that, when he grabbed for Morales' arm, intending to restrain Morales in
order to search him, Morales jerked away, lowered his head and "came down into my waist here
(indicating)," "ducked his head down," and "went toward [Robertson's] right side," "in the middle
of" Robertson, with his arms around Robertson--apparently meaning that Morales physically
stepped into Robertson and caused his arms to envelop Robertson.  In response, as Morales was
doing that, Robertson then caused the two struggling men to fall to the ground, again movements that
were physically demonstrated to the jury.  Robertson repeatedly ordered Morales to put his hands
behind his back.  During this time, Morales resisted the officers, at one point locking his hands under
his body so the officers could not cuff him and at another point reaching for Robertson's gun (still
holstered).  When Richardson sprayed Morales with pepper spray, at Robertson's request, it also
affected Robertson, who was still on the ground holding Morales.  Later, apparently as something
of a summary of the physical demonstration to the jury, Robertson testified that Morales "attacked"
him and "charged into" him. 
	The officers cuffed Morales and put him in the patrol car.  Robertson testified that his "knees
were scraped up from having to be on the ground," his right eye was temporarily blinded by the
pepper spray, and his breathing was affected by the pepper spray.
	On cross-examination, Robertson admitted that, in response to Morales' actions, he, rather
than Morales, pulled or wrestled the two of them to the ground.  He also agreed that Morales did not
verbally threaten him, that the natural response of a person put in a painful position was to try to get
out of it as quickly as possible and that Morales was trying to free himself from Robertson's hold and
to get away. 
	Richardson testified that he was in the passenger seat of the patrol car with the passenger
door and window shut when Morales approached Robertson.  Morales looked "aggravated," had his
fists "balled up," "and was yelling at Robertson, asking if the officers had arrested Morales' sister
earlier that night.  Richardson heard Robertson ask Morales to put his hands on the car "two or three
times, and then they were on the ground."  Richardson jumped out of the patrol car and ran to the
driver's side where Morales was on his knees, with Robertson leaned over him, grabbing at Morales'
upper body.  Both officers repeatedly ordered Morales to put his hands behind his back, but Morales
resisted their efforts to cuff him by locking his hands together under him.  On order from Robertson,
Richardson sprayed Morales with pepper spray, which got on Morales, Robertson, and Richardson,
causing Richardson's skin to burn.  After spraying Morales, they cuffed him and put him in the squad
car, despite his continuing efforts to resist. 
	Nicki Szafran, a first-grade teacher, was sitting in the front passenger seat of her daughter's
car, which was parked on the right side of the patrol car at the convenience store, when she saw
Morales walk up to the patrol car.  She saw Morales have a "heated . . . discussion" with one of the
deputies.  She said Morales looked angry, seemed upset, and may have been "pointing at [the
deputy]."  During the scuffle between Robertson and Morales, she heard the officers repeatedly tell
Morales to "[c]alm down" and "put [his] hands behind [his] back," but Morales "kept fighting it" by
"trying to break away" and "get loose" from Robertson.  On direct examination, Szafran conceded
that she did not see Morales "running or hitting or anything," and on cross-examination, she admitted
that she "couldn't tell what was going on" once Robertson took Morales to the ground, because the
police car blocked her view. 
	After the State rested, Susan Childress, Morales' girlfriend and mother of his child, testified
as a defense witness.  Childress saw Morales calmly approach Robertson and ask to speak with him
about Morales' sister.  Robertson told Morales to come closer so Robertson could search Morales. 
She said Morales complied with Robertson's commands, but when Morales asked why the search
was necessary, Childress saw Robertson slam Morales' head against the patrol car and search him. 
Then, she saw Robertson grab Morales around the throat and take him to the ground.  Morales tried
to get Robertson's arm off of his throat.  She testified that she had a clear, unobstructed view of the
events and that Morales never threatened, swung at, or otherwise attempted to assault the officers. 
	On cross-examination, Childress asserted that Morales was innocent and denied that he
charged into Robertson.  She did not hear the officers order Morales to calm down or put his hands
behind his back.  She admitted that Morales provided financial support for her and their baby and
conceded that, if Morales were convicted, it would cause her great financial harm. 
	Next, Morales' father, Peter Mark Morales (Peter), testified that he was at the convenience
store putting gas in his truck when he saw Morales approach Robertson.  Peter saw Morales ask
Robertson something, and Robertson started pushing Morales, shoved his head against the patrol car,
quickly put him in a choke hold and pulled him to the ground.  Before the officers restrained
Morales, Peter did not see Morales take any violent action toward the officers.  He thought Morales
struggled with the officers as a reaction to the choke hold.  Peter said Morales offered no resistance
of any kind until Robertson took Morales to the ground. 
	Morales took the stand in his own defense and testified that he followed the officer's
instructions and denied doing anything to injure Robertson.  When asking Robertson about his
sister's arrest, Morales described his own demeanor as docile and respectful.  Morales asserts that
Robertson put him in a choke hold and pulled him to the ground.  After he and Robertson went to
the ground, Morales testified that, in order to avoid injury, he went into defensive mode, a fetal
position, bent over on his knees with his hands clasped together under him.  Morales admitted that,
in trying to relieve the pressure on his neck and stop Robertson's choke hold, he may have grabbed
Robertson's hands, tried to remove them from around his neck, or reached around Robertson's body
and tried to push him off.  He denied making any aggressive moves toward Robertson. 
	Here, Morales contends there was no evidence that he knowingly, intentionally, or recklessly
caused bodily injury to Robertson because the officer wrestled Morales to the ground and ordered
the use of pepper spray.  Because the pain from both events was the direct result of Robertson's
actions or orders, Morales argues, any pain from the pepper spray or scraped knees was caused by
Robertson rather than Morales.  We disagree.
	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. Penal Code Ann. § 6.04(a) (Vernon 2003).
	"Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." 
Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2008).  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."  Wawrykow v. State, 866 S.W.2d 87, 89 (Tex.
App.--Beaumont 1993, pet. ref'd) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App.
1989)).  The intent element, "reckless," is defined in Section 6.03(c) of the Texas Penal Code:
	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) (Vernon 2003).  Jurors may also infer intent from the defendant's
acts, words, and conduct.  Guevara v. State, 152 S.W.3d 45, 49 & 50 (Tex. Crim. App. 2004); see
also Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980); Moyer v. State, 948
S.W.2d 525, 530 (Tex. App.--Fort Worth 1997, pet. ref'd).
	Morales focuses on Robertson's action in taking the pair to the ground and in ordering the
use of pepper spray, suggesting that there is no proof of any affirmative action by Morales that
caused any pain or injury to Robertson.
	The broad statutory definition of assault does not explicitly require an exertion of force in
the direction of the victim, but, by its terms, allows a conviction for even recklessly "causing" pain
to another, without specifying any type of action required.  Given this broad definition of assault,
unless there is, within the meaning of the statute, some implicit added requirement--such as an
action taken in the direction of an arresting officer--there appears the real possibility that, in some
cases, it would be impossible to distinguish between resisting arrest and assaulting an officer who
is attempting an arrest.  Pulling away from an officer's grasp, or passively refusing to cooperate in
an arrest, if pain results to the arresting officer, theoretically could support an assault conviction. 
On the other hand, we have found no published Texas case that has approved an assault conviction
in the absence of some proof that the defendant struck the victim or used some force in the direction
of the victim.
	The Texas Court of Criminal Appeals has held that a defendant charged with assaulting an
arresting officer was not entitled to a lesser-included offense instruction on resisting arrest when he
or she struck the arresting officer, even though his or her motive was to avoid being arrested.  See
Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001).  At least one court has expressed concern
over that holding:
	[W]e find the Lofton decision troubling:  the Lofton holding creates the very great
risk that, in any case in which a person resists arrest by any use of force, the State
will oppose a resisting arrest instruction.  Although the appellants in the instant case
and in Lofton clearly used a great deal of force in resisting arrest, the decision of the
court of criminal appeals raises the very real possibility that any minor scuffle during
an arrest will result in a defendant being charged solely with assault on a public
servant.
Oiler v. State, 77 S.W.3d 849, 853-54 (Tex. App.--Corpus Christi 2002, pet. ref'd).
	A few years ago, we upheld an assault conviction where a defendant's flailing struggles to
avoid arrest resulted in the defendant hitting and kicking an officer.  Gumpert v. State, 48 S.W.3d
450, 454-55 (Tex. App.--Texarkana 2001, pet. ref'd).  Evidence that defendant struck the victim in
the chest causing pain and scuffled with the victim resulting in injured fingers, has been held
sufficient to support an assault conviction.  Bryant v. State, 47 S.W.3d 80, 82-83 (Tex. App.--Waco
2001, pet. ref'd); see Lofton, 45 S.W.3d at 652 (even if defendant intended only to prevent his arrest,
force used in striking officer in face was at least reckless in causing bodily injury); Brooks v. State,
967 S.W.2d 946, 947-48 (Tex. App.--Austin 1998, no pet.) (evidence sufficient where defendant
accidently struck an officer in eye while "merely trying to free herself" from officer's grasp).
	In each of the preceding cases, the public servant testified to a blow of some sort from the
defendant or a forcible struggle with the defendant (not a simple pulling away), causing pain to the
public servant.  Morales argues that there is no proof that any action of his caused Robertson's pain. 
Here, we need not decide whether assault requires proof of some force used on or in the direction
of the victim.
	While there is no testimony of an actual hit or kick that connected with any part of
Robertson's body, there is testimony by Robertson of a physical movement by Morales toward
Robertson that connected with at least some portion of Robertson's midsection and, immediately
following that contact, an ensuing struggle, during which Robertson was "injured."  Also, there was
later testimony that Morales, after aggressively approaching Robertson, "attacked" or "charged into"
Robertson.  Those items of evidence are sufficient, without more, to show that Morales exerted force
against or toward Robertson and that force is connected causally to Robertson's "injuries."
	Also during Robertson's testimony, Robertson and a fellow officer gave the jury a physical
demonstration of the encounter, thus putting before the jury certain evidence that we cannot see or
explicitly read in the record.  Physical demonstrations or gestures have been cited as added reasons
appellate courts must defer to jury findings.
	Central to one case was the fact question of where the defendant put his hand during the
charged robbery.  See Rogers v. State, 756 S.W.2d 332, 336-37 (Tex. App.--Houston [14th Dist.]
1988, pet. ref'd).  The location of Rogers' hand was hinted at in the language used in testimony, but
was apparently specified by the gestures of a witness and of both attorneys in questioning that
witness.  Notwithstanding the lack of explicit testimonial language specifying where Rogers' hand
was located, the court in Rogers deferred to the jury verdict in light of the demonstrations or gestures
made at trial:
	In addition to noting that appellant failed to request that the record reflect the
substance of the gestures or demonstrations, we also note that he failed to object to
them.  Because this court must evaluate challenges to the sufficiency of the evidence
by reviewing the record in the light most favorable to the verdict, we hold the
testimony excerpted above, which indicates that not one but several demonstrations
took place, supports the jury's verdict.  See Tex. R. App. P. 50(d).
Id. at 337.  Similarly, an earlier involuntary manslaughter case turned on how the defendant held a
gun; in deference to the jury's findings, the appellate court found the evidence sufficient to support
the conviction, because the jury had seen the physical gestures obviously accompanying
indeterminate expressions "like that" or "like this" used in the testimony.  Gaona v. State, 733
S.W.2d 611, 613 & n.1 (Tex. App.--Corpus Christi 1987, pet. ref'd).  We, too, are constrained to
defer to the jury's findings, based on its observation of the gestures and demonstrations at trial,
gestures and demonstrations which were not transcribed and which we cannot see.
	Even without such a physical demonstration for the jury, we use "deferential standards of
review" in reviewing jury findings for evidentiary sufficiency.  Roberts v. State, 221 S.W.3d 659,
664 n.7 (Tex. Crim. App. 2007); Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  The
jury is in the better position to evaluate the witnesses.  Marshall, 210 S.W.3d at 625.  That is
especially true when there were physical demonstrations or gestures given in the jury's presence, but
that are not explicitly transcribed or detailed in the record.  See Rogers, 756 S.W.2d at 336-37;
Gaona, 733 S.W.2d at 613 & n.1.
	There is testimonial evidence that Morales moved or charged into Robertson's body, making
contact with him and that pain to Robertson (skinned knees and pepper spray) flowed directly from
that contact.  There was also the physical demonstration to the jury.  The evidence, thus, allows for
a finding that actions by Morales, in which he directed force toward Robertson, resulted directly in
Robertson's "take-down" of Morales, the struggle on the ground, the skinned knees, and the pepper
spray.  Skinned knees and the results of the pepper spray constitute "bodily injury." (3)  As the record
does not conflict with the jury findings, we find the evidence that Morales knowingly, intentionally,
or recklessly caused bodily injury to Robertson legally and factually sufficient.
(2)	The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Morales' Prior
Violent Offenses
	Morales argues that the trial court erred in allowing questions about the prior arrests because
the danger of unfair prejudice substantially outweighed the evidence's probative value. (4)  We disagree.
	On direct examination, the following exchange took place between Morales' counsel and
Childress, a defense witness:
		Q 	Did Mr. Morales threaten the officer in any way?

		A	No.
 
		Q	Did [Morales] use any abusive language towards the officer?

		A	No, he didn't.  He's not that type of person.
 
		Q	Did he make any threatening gestures toward the officer?

		A	No.

(Emphasis added.)  Outside the jury's presence, the State argued that by saying, "[h]e's not that type
of person," Childress characterized Morales "as a peaceful person" and that her testimony opened
the door to questions about "any violent offense."  The State sought to rebut Childress' testimony and
thereby "correct a false impression that's been put before the jury" by asking Childress if she knew
about Morales' prior arrests for violent crimes, which stem from 1993 through 2005.  Morales
objected, asserting that the probative value of the extraneous-offense evidence was substantially
outweighed by the danger of unfair prejudice.  The trial court overruled Morales' objection (5) and
allowed the State to ask Childress if she knew about Morales being arrested for:
	Robbery in 1993;
	Battery of a police officer and resisting arrest in 1994;
	Obstructing a police officer in 1994;
	Obstructing a police officer and domestic violence battery in 1998;
	First-degree kidnapping in 2002;
	Domestic violence in 2003; 
	Battery domestic violence in 2005; and
	Another battery domestic violence in 2005.
Standard of Review
	We review a trial court's admission or exclusion of extraneous-offense evidence for abuse
of discretion.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).  Moreover, a trial
court's decision regarding admissibility of evidence will be sustained if correct on any theory of law
applicable to the case, even when the court's underlying reason for the decision is wrong.  Romero
v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990). 
	If a trial court determines that evidence of extraneous crimes or bad acts have relevance aside
from character conformity, and a timely, proper Rule 403 objection is made, the trial court must
make a balancing determination under Rule 403.  Montgomery v. State, 810 S.W.2d 372, 388-89
(Tex. Crim. App. 1990) (op. on reh'g).  Rule 403 provides that, "[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence."  Tex. R. Evid. 403.  Only "unfair" prejudice provides the basis
for exclusion of relevant evidence.  Montgomery, 810 S.W.2d at 389.  Unfair prejudice arises from
evidence that has an undue tendency to suggest that a decision be made on an improper basis,
commonly an emotional one.  Id.  We do not conduct a de novo review of the record with a view to
making a wholly independent judgment as to probative value versus prejudicial risk.  Id. at 392.  We
reverse a trial court's determination under Rule 403 "rarely and only after a clear abuse of discretion,"
recognizing that the trial court is in a superior position to gauge the impact of the relevant evidence. 
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Jones v. State, 119 S.W.3d 412,
421-22 (Tex. App.--Fort Worth 2003, no pet.).
	The relevant criteria in determining whether the prejudice of an extraneous offense
substantially outweighs its probative value include, but is not limited to:  (1) the strength of the
extraneous offense to make a fact of consequence more or less probable; (2) the potential the
extraneous-offense evidence has to impress the jury in some irrational, but nevertheless indelible
way; (3) the time needed to develop the evidence, during which the jury will be distracted from
consideration of the indicted offense; and (4) the proponent's need for the evidence to prove a fact
of consequence.  State v. Mechler, 153 S.W.3d 435, 440 (Tex. 2005) (citing Montgomery, 810
S.W.2d at 392); Mozon, 991 S.W.2d at 847.
	The first factor, probative value, weighs in favor of admission.  The State claimed that
Childress put the false impression before the jury that Morales was a peaceful person, and the State
offered evidence of arrests for violent crimes to rebut that impression.  The record shows Childress
testified, at best, that Morales was not the type of person to make threats, use abusive language, or
make threatening gestures toward an officer.  The State mischaracterized the direct questions to
Childress and the answers she gave. However, Morales failed to object to the mischaracterization
or request an examination of the record for the specific questions and answers.  The extraneous-arrest
evidence was probative of both how well Childress knew Morales and the foundation for her
characterization of Morales.  Therefore, the prior arrests were probative to rebut the "false
impression."
	The second factor, the potential to give the jury an irrational impression, inquires as to the
evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense
charged.  Mechler, 153 S.W.3d at 440.  The prior arrests admitted into evidence included robbery,
battery of a police officer, resisting arrest, and domestic violence.  The arrests for robbery and battery
of a police officer occurred more than a decade prior and are either identical or arguably worse than
the offense with which Morales was currently charged.  The potential prejudice of nearly identical
acts is very high because it is stark proof of criminal character or propensity.  Parks v. State, 746
S.W.2d 738, 739 (Tex. Crim. App. 1987).  However, giving limiting instructions to the jury is a
factor to consider in determining whether the jury improperly considered the extraneous-arrest
evidence.  Owens v. State, 827 S.W.2d 911, 916-17 (Tex. Crim. App. 1992).  In this case, the trial
court gave a limiting instruction to the jury, and although not as narrowly tailored to the specific
issues involved as it could have been, the charge did seek to have the jury limit its use of the
extraneous-offense evidence. (6)  Therefore, we find that this factor weighs toward admission.
	The third factor, the time spent developing evidence of the extraneous arrests, was not unduly
lengthy.  Childress' testimony regarding the extraneous arrests took up only about four pages in the
564-page record.  Thus, this factor is neutral and favors neither exclusion nor admission.  Blackwell
v. State, 193 S.W.3d 1, 18 (Tex. App.--Houston [1st Dist.] 2006, no pet.).
	The fourth factor, the State's need for the extraneous-arrest evidence to prove a fact of
consequence, weighs in favor of admission.  The State sought to rebut Childress' characterization
of Morales that he was "not that type of person" by showing that she did not know Morales that well
or that long, i.e., "the foundation of her belief [was] . . . incomplete."  The question of whether
Morales was threatening the officers is directly related to his intent, and the State did not have other
evidence with which to rebut Childress' characterization of Morales' character.  Therefore, the State
had need for this evidence.
	Considering all four factors together, we conclude that the probative value of the extraneous-
arrest evidence was not substantially outweighed by its prejudicial impact.  Consequently, we hold
that the trial court properly overruled Morales' Rule 403 objection and overrule this point of error.
	We affirm the judgment.



						Josh R. Morriss, III
						Chief Justice

Date Submitted:	July 30, 2009
Date Decided:		August 12, 2009

Publish
1. Morales' second and third points of error challenge, respectively, the factual and legal
sufficiency of the evidence to support a finding that he caused bodily injury to Robertson.  His fourth
point asserts a claim for "fatal variance," however, it merely restates his evidentiary sufficiency
challenge and fails to cite any supporting law.  We analyze Morales' fourth point of error as a legal
sufficiency challenge; and, to the extent he seeks to make a fatal variance claim, we overrule it as
inadequately briefed.  See Tex. R. App. P. 38.1(i). 
2. We find the trial court's charge to the jury to have been in substantial if not complete
compliance with the applicable law, and thus, the equivalent of a hypothetically correct charge.
3. 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.  Randolph v. State, 152
S.W.3d 764, 774 (Tex. App.--Dallas 2004, no pet.).  When considering whether evidence is
sufficient to establish that a victim suffered pain, juries may use common sense and apply common
knowledge, observation, and experience gained in the ordinary affairs of life, using inferences that
may reasonably be drawn from the evidence.  Wawrykow, 866 S.W.2d at 88-89.

	Robertson testified to suffering only two injuries:

		Q 	[By the State]  And what kind of pain did [the pepper spray] cause
you?
 
		A 	 . . . you can't breathe, on a regular . . . it does takes your breath away.
It feels like you're out of air. . . .
 
		Q	 . . . you had the inability to breathe properly?

		A 	Yeah.  And I was blinded for a little bit, too.
 
		Q 	In both eyes or just one eye? 

		A 	Just, mainly, one. 
 
			. . . .

		Q	[By Defense Counsel]  Did [Morales] do anything to harm or injure you?

		A 	Yes, sir.
 
		Q 	What did [Morales] do to harm or injure you?

		A 	Well, my knees were scraped up from having to be on the ground, on
the concrete, and I got sprayed [with pepper spray] as a result of him resisting. 
4. At trial, Morales preserved an objection under Rules 404(b) and 609 of the Texas Rules of
Evidence; however, Morales does not cite, raise, or otherwise argue Rules 404(b) or 609 in his brief,
so we do not address them here and must assume, for purposes of this review, that, under Rules
404(b) and 609, the evidence was fundamentally relevant for an admissible purpose other than
conformity.  Tex. R. Evid. 404(b), 609.
5. The trial court granted Morales a running objection to all questions about Morales' prior
arrests.
6. The following instruction was given to the jury and is not challenged on appeal:

	You are instructed that if there is any testimony before you in this case
regarding the defendant having committed offenses other than the offense alleged
against him in the indictment in this case, you cannot consider said testimony for any
purpose unless you find and believe beyond a reasonable doubt that the defendant
committed such other offenses, if any were committed, and even then you may only
consider the same in determining the intent, knowledge, design, and/or scheme of the
defendant, if any, in connection with the offense, if any, alleged against him in the
indictment in this case, and for no other purpose.


bottom:.0001pt;text-align:justify;text-justify:inter-ideograph;
mso-pagination:widow-orphan;tab-stops:center 3.25in'>                            CHRISTOPHER CASTLEBERRY,
Appellant
 
                                                                V.
 
                         ACE AMERICAN INSURANCE/ESIS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 276th
Judicial District Court
                                                             Morris County, Texas
                                                            Trial
Court No. 24,566
 
                                                       
                                           
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                              Memorandum Opinion by Justice Carter



                                                      MEMORANDUM OPINION
 
I.         Background
 
            Pro se
appellant, Christopher Castleberry, was employed by U.S. Steel Tubular Products,
Inc., as a straightener.  Castleberry
maintains he sustained a hearing loss as a result of excessive noise levels at
work, for which he sought to recover workers compensation benefits.   The request for benefits was denied by the
hearing officer.  When he was again
denied relief from the Texas Department of Insurance Division of Workers
Compensation appeals panel, Castleberry filed his original petition seeking
judicial review in the District Court of Morris County.  Ace American Insurance/ESIS (Ace) filed a
plea to the jurisdiction, alleging Castleberry failed to timely file his
petition, and therefore the district court lacked jurisdiction to hear the
cause.  The district court granted the
plea to the jurisdiction and dismissed Castleberrys petition with
prejudice.  Castleberry appeals the order
of dismissal, asking this Court to overrule the time limit that was originally
given.  We affirm the judgment of the
trial court.
II.        Jurisdiction
 
            The Texas Workers Compensation
Act requires that a party appealing a decision of the Commission must file suit
by the forty-fifth day after the date on which the decision of the appeals
panel was mailed to that party.  Tex. Lab. Code Ann. § 410.252(a) (West
Supp. 2010).[1]  Here, the decision of the appeals panel was
filed on May 24, 2010.  Castleberry was
therefore required to file suit not later than forty-five days from May 29,
2010, the date the decision was mailed to him.[2]
 Castleberrys original petition was
filed on November 25, 2010, well beyond the forty-five-day deadline.  Ace contends that the district court was
without jurisdiction over Castleberrys lawsuit due to the untimely filing of
the original petition.  We agree.
            The
forty-five-day time period in which to file a petition for judicial review is
mandatory and jurisdictional.  Fire & Cas. Ins. Co. of Conn. v. Miranda,
293 S.W.3d 620, 624 (Tex. App.San Antonio 2009, no pet.); LeBlanc v. Everest Natl Ins. Co., 98 S.W.3d 786, 787 (Tex. App.Corpus
Christi 2003, no pet.); Johnson v. United
Parcel Serv., 36 S.W.3d 918, 921 (Tex. App.Dallas 2001, pet. denied); Morales v. Employers Cas. Co., 897
S.W.2d 866, 868 (Tex. App.San Antonio 1995, writ denied) (op. on rehg) (finding
no reason to distinguish statutory twenty-day filing requirement under former Article
8307, Section 5 that was mandatory and jurisdictional and current forty-day
requirement under Section 410.252(a)) (decisions under prior law).[3]  Indeed, LeBlanc
determined that there was no caselaw holding that Section 410.252(a) of the
Texas Labor Code is anything but jurisdictional.  LeBlanc,
98 S.W.3d at 787. 
            Castleberrys failure
to file his petition with the district court within forty-five days of the date
on which the decision was mailed to him deprived the trial court of
jurisdiction to act in the present case. 
This Court, while sympathetic to Castleberrys request to overrule the
time limit that was originally given, is without authority to do so.  See
Pub. Util. Commn v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (court is not
free to rewrite statute to reach more desirable result).
III.       Conclusion
 
            We affirm the judgment of the
trial court.
 
 
 
                                                                                    Jack
Carter
                                                                                    Justice
 
Date Submitted:          August
3, 2011
Date Decided:             August
4, 2011




 
[1]The
statute provides:
 
A party may seek
judicial review by filing suit not later than the 45th day after the date on
which the division mailed the party the decision of the appeals panel.  For purposes of this section, the mailing
date is considered to be the fifth day after the date the decision of the
appeals panel was filed with the division.
 
Tex.
Lab. Code Ann. § 410.252(a).
 


[2]Castleberrys
petition was due to be filed on or before July 13, 2010.
 


[3]Section
410.252(a) was amended to expand the time period for filing a petition for
judicial review from forty days to forty-five days, effective September 1,
2009.  Tex.
Lab. Code Ann. § 410.252(a).


