                                   NO. 12-13-00383-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JUAN DURANT,                                       §     APPEAL FROM THE 349TH
APPELLANT

V.                                                 §     JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §     HOUSTON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Juan Durant appeals his conviction for assault on a public servant. In one issue on
appeal, Appellant argues that the trial court erred by failing to instruct the jury on the lesser
included offense of misdemeanor assault. We affirm.


                                           BACKGROUND
       Appellant was charged by indictment with assault on a public servant, and the indictment
included a felony enhancement paragraph.           Appellant pleaded “not guilty,” and the case
proceeded to a jury trial. At the conclusion of the trial, the jury found Appellant guilty of assault
on a public servant as charged in the indictment, found the felony enhancement paragraph to be
“true,” and assessed Appellant’s punishment at eight years of imprisonment.              This appeal
followed.


                                        JURY INSTRUCTION
       In his sole issue on appeal, Appellant argues that the trial court erred by failing to instruct
the jury on the lesser included offense of misdemeanor assault. More specifically, he contends
that he presented some evidence from which a jury could have found him guilty of misdemeanor
assault rather than assault on a public servant.
Applicable Law
       In determining whether a jury should be instructed on a lesser offense, courts apply the
two prong Aguilar/Rousseau test. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005);
see also Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Rousseau v. State, 855
S.W.2d 666, 672 (Tex. Crim. App. 1993). The first step requires a court to determine whether
the lesser offense is actually a lesser included offense of the offense charged as defined by
Article 37.09 of the Texas Code of Criminal Procedure. Hall, 158 S.W.3d at 473. Assault on a
public servant, as alleged in this case, requires proof of misdemeanor assault and proof of four
additional elements:
       (1)   the person assaulted was a public servant;
       (2)   the actor knew that the person he assaulted was a public servant;
       (3)   the person assaulted was discharging official duties at the time of the
             assault; and
       (4)   the person assaulted was lawfully discharging official duties.
See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014); Hall, 158 S.W.3d at 473. Because
the offense of assault on a public servant differs from misdemeanor assault only because it
requires proof of additional facts, the first prong of the Aguilar/Rousseau test is satisfied. Hall,
158 S.W.3d at 473. The State does not disagree. However, a jury charge on a lesser offense is
not necessarily warranted simply because a lesser offense is included within the proof of a
greater offense. See id. (citing Aguilar, 682 S.W.2d at 558).
       The second prong of the Aguilar/Rousseau test asks whether the record contains some
evidence that would permit a rational jury to find that the defendant is guilty only of the lesser
included offense. See id. In other words, there must be some evidence from which a rational
jury could acquit Appellant of assault on a public servant while convicting him of the lesser
included offense of misdemeanor assault. See id. In making this decision, a court evaluates the
evidence in the context of the entire record, but does not consider whether the evidence is
credible, controverted, or in conflict with other evidence. See id. If there is affirmative evidence
in the record that negates one of the four additional elements of assault on a public servant, yet
admits the underlying assault, Appellant would be entitled to a lesser included charge. See id. at
474.




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         According to the court of criminal appeals, “as long as the officer was acting within his
capacity as a peace officer, he was acting within the lawful discharge of his official duties.” Id.
(quoting Guerra v. State, 771 S.W.2d 453, 461 (Tex. Crim. App. 1988)).                  The “lawful
discharge” of official duties means that the public servant is not criminally or tortiously abusing
his office as a public servant by acts of, for example, “official oppression,” “violations of the
civil rights of a person in custody,” or the use of unlawful, unjustified force. See id. at 474-75.
         Further, the Texas Penal Code provides that a correctional officer or employee is justified
in using force against a person in custody “when and to the degree the officer reasonably
believes the force is necessary to maintain the security of the correctional facility, the safety or
security of other persons in custody or employed by the correctional facility, or his own safety or
security.” TEX. PENAL CODE ANN. § 9.53 (West 2011).
The Evidence
         Jamie Dauzat, a former correctional officer for the Texas Department of Criminal Justice
(TDCJ), testified that on May 20, 2012, he was working as an officer at the Eastham Unit in
Houston County and wearing his TDCJ uniform. That morning, he was working in the chow hall
during lunch, supervising other coworkers and the mass movement of the offenders. He stated
that offenders were allowed to take only one tray of food and were never allowed to have two
trays.
         Dauzat testified that he saw Appellant with two trays of food. He approached Appellant
and, standing on one side of a three foot rail separating the cafeteria line from the seating area,
ordered Appellant to hand him the extra tray. Appellant did not comply. Instead, Dauzat said,
Appellant turned, said “f*** you b***h,” and turned back around.              Dauzat again ordered
Appellant to give him the tray. He also told Appellant to hand him the tray or he could leave the
chow hall. Appellant turned around and said “get the f*** out of my face b***h.” At that point,
Dauzat said, he reached for Appellant’s tray. Appellant pulled the tray back, dropped the second
tray that he had in his left hand, and balled up his fist. Then, Appellant stepped up to the rail, got
close to Dauzat’s face, and told him to “get out of my f***ing face before I beat your a**.”
Dauzat testified that he perceived Appellant’s words and actions as a threat and was concerned
for his safety and the safety of the offenders watching the altercation.
         At that point, Dauzat struck Appellant with his open hand on the lower part of
Appellant’s throat to back him up or push him back. He stated that Appellant stumbled back,



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came toward him, and hit him across the side of the face with the edge of the tray. Dauzat
grabbed Appellant and, with a coworker’s help, restrained him. He suffered pain, bleeding, and
a laceration in the corner of his eyebrow, bruises and tenderness underneath his eye, a headache,
and a swollen and bruised lip. Dauzat stated that Appellant violated the rules, and was subject to
written disciplinary violations for taking two trays, disobeying direct orders, and cursing at him.
       Another former correctional officer, Jeffrey Hunter, was in the chow hall at the time and
described both men as becoming mad. He heard Appellant threaten Dauzat, saying “I’ll beat
your a**,” and saw him step towards Dauzat aggressively and clench his fist. Then, he saw
Dauzat push Appellant at the base of his throat. According to Hunter, Appellant “came around
with one of the trays” and struck Dauzat in the head with it. Another correctional officer in the
kitchen also saw Appellant strike Dauzat in the head with a tray.
       In contrast, Appellant testified that he took two trays even though he knew it was against
the rules because he was hungry. However, he said, Dauzat approached him in a different
manner than other correctional officers had in the past when he had taken two trays. Appellant
characterized Dauzat as aggressive and testified that the first thing Dauzat said was to “give
[him] the “f*****g” tray.” At that point, he said, Dauzat tried to reach for the tray. Appellant
told Dauzat to “chill man” and let him “make it.” He denied cursing at Dauzat, but admitted that
he held the tray away from him. Appellant also admitted that he was disobeying an order that
could result in a disciplinary action. According to Appellant, Dauzat reached for the tray again
and told him to give him the “f*****g” tray. Again, Appellant did not comply, but, instead,
threw the tray on the floor because he “couldn’t take it no more.”
       Appellant testified that when he threw the tray on the floor, Dauzat became mad, began
screaming and cursing at him, calling him a b***h, a h*e, and a m*****f****r, and hit him. He
described the blow as a karate chop to the side of his neck. Appellant stated that he feared for
his safety and, thus, dropped the tray on the rail and swung at Dauzat. He initially denied
stepping backwards from Dauzat’s use of force, but later admitted that he “went back.”
Appellant testified that he and Dauzat began wrestling, and he admitted hitting Dauzat three
times, including in the eye. However, he denied hitting Dauzat with the food tray.
Analysis
       In this case, we must decide whether a rational jury could find Appellant guilty of only
misdemeanor assault, not assault on a public servant. See Hall, 158 S.W.3d at 473-74. The only



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element of assault on a public servant that Appellant claims to have affirmatively negated is that
Dauzat was in the “lawful discharge” of his official duties. Appellant contends that he offered
some evidence that Dauzat acted “unlawfully” when he struck Appellant with his hand on the
lower part of Appellant’s throat to push him back. Therefore, he argues, Dauzat used unlawful,
unjustified force without provocation and stepped outside the lawful performance of his official
duties. Appellant would have been entitled to a lesser included instruction only if there were
some record evidence, from any source, that Dauzat was criminally or tortiously abusing his
status as a public servant at the time of the assault. But there is no such evidence.
       Appellant violated the rules by taking two food trays and refused to obey a direct order
from Dauzat to give him the extra tray. Instead, Appellant cursed at Dauzat, threw one of the
trays on the floor, aggressively stepped towards Dauzat, clenched his fist, and verbally
threatened him. Because Appellant refused to comply and threatened Dauzat’s safety, and, in
Dauzat’s opinion, that of the other offenders in the chow hall, Dauzat pushed Appellant back
with an open hand to the lower part of his neck. At that point, Appellant struck Dauzat in the
face with the food tray, inflicting painful injuries. Dauzat’s use of force was well within the
scope of his lawful duties to maintain the security of the correctional facility, his safety, and the
safety of others in the correctional facility. See TEX. PENAL CODE ANN. § 9.53.
       However, Appellant offered his own testimony that he believed Dauzat acted
aggressively towards him and cursed at him. In his brief, he argues that Dauzat did not follow
TDCJ’s policy of attempting to de-escalate the situation to avoid the need for the use of force.
Even if there were evidence that Dauzat violated internal prison policies and procedures, that
evidence would not support a valid, rational conclusion that he criminally or tortiously abused
his official office or duties at the time of the assault. See Hall, 158 S.W.3d at 476. There is no
record evidence that Dauzat unjustifiably hit or pushed an offender who was minding his own
business. See id. Here, Appellant instigated the confrontation because he refused to obey the
legitimate orders of a correctional officer. There is no evidence that would support a rational
conclusion that Dauzat was unlawfully discharging his official duties at the time Appellant hit
him with the food tray. Based upon an evaluation of the facts in this case after consideration of
the entire record, it is clear that the second prong of the Aguilar/Rousseau test has not been
satisfied. Thus, Appellant was not entitled to a lesser included offense instruction. We overrule
Appellant’s sole issue.



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                                                    DISPOSITION
         Having overruled Appellant’s sole issue on appeal, we affirm the judgment of the trial
court.


                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered October 22, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          OCTOBER 22, 2014


                                          NO. 12-13-00383-CR


                                          JUAN DURANT,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                 Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-119)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
