                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00294-CR

SARAH BENFORD,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 09-03906-CRF-361


                           MEMORANDUM OPINION


       A jury convicted Appellant Sarah Benford of the third-degree felony offense of

assault of a public servant.    The trial court assessed her punishment at six years’

imprisonment and stated that it would reserve the right for 180 days to grant shock

probation. Benford appeals in four issues. We will affirm.

                          SUFFICIENCY OF THE EVIDENCE

       We begin with Benford’s third issue in which she contends that the evidence was

insufficient to support her conviction.
        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct.

at 2793.           Further, direct and circumstantial evidence are treated equally:

“Circumstantial evidence is as probative as direct evidence in establishing the guilt of

an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper,

214 S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Benford v. State                                                                            Page 2
        A person commits an assault if that person intentionally, knowingly, or

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

2011). An assault is a third-degree felony if it is committed against a person the actor

knows is a public servant while the public servant is lawfully discharging an official

duty. Id. § 22.01(b)(1). Thus, to convict Benford of assault of a public servant, the State

had to prove that she (1) intentionally, knowingly, or recklessly; (2) caused bodily

injury; (3) to a person she knew was a public servant; (4) while the public servant was

lawfully discharging an official duty. See id. § 22.01.

        Bryan Code Enforcement Officer Dawn Kaatz testified that she received a

complaint about trash and debris in the backyard of a residence. When she and Bryan

Police Department Neighborhood Enforcement Officer Bill Cross arrived at the

property, they encountered a dog that was running loose and nipping at their heels.

Kaatz called dispatch, and dispatch radioed to them that Animal Control had been there

earlier because of a complaint about a dog trying to bite some children. The dog then

ran into the backyard of the residence.

        At that time, Benford came out of the residence cursing at them and asking them

why they were there. Benford said that she did not have a dog but that they could go in

the backyard to see if the dog was back there. Kaatz, Officer Cross, and Animal

Control, who had come back to the scene, then went into the backyard and were trying

to catch the dog. Benford continued to curse at them during this time. A couple of

neighbors and their children then came up to the back of the property and said that the

dog had been trying to bite their children. The neighbor then confronted Benford about

Benford v. State                                                                     Page 3
the language she was using in front of the children, and Officer Cross also told Benford

to “stop with the profanity in front of the children” and warned her that if she did not

get herself under control, she would be arrested.      Benford nevertheless remained

belligerent; therefore, Officer Cross told Benford that he was going to arrest her.

Benford then turned around and ran into the house.

        Officer Cross testified that Benford was cussing at them when one of the

neighbors told her to “[p]lease quit.” Officer Cross stated that he also told Benford,

“Ms. Benford, you need to quit cussing. Please quit cussing.” When Benford refused,

Officer Cross told Benford that she was under arrest. Benford then said, “You ain’t

going to catch me mother-fucker, fuck this,” and ran in the back door of the residence.

Officer Cross went after Benford, and just as he got in the door, he caught her. They

both went down to the ground as Officer Cross tried to put handcuffs on her. On the

way down, Benford was swinging at him with her fists and hands and then she threw

bleach on him.     When asked whether his ending up with bleach on him was an

accident, Officer Cross replied, “No, sir.” He stated, “She threw the bleach on me.”

Officer Cross stated that the bleach burned his skin. He was wearing his short sleeve

police uniform, but it was not damaged; only the top of his boots turned a white or off-

white color.

        By throwing the bleach on Officer Cross, Benford was able to get away from him,

but Officer Cross got up and went after her. As he was coming toward her, she was in a

defensive posture, so Officer Cross tased her.     Officer Cross then put Benford in

handcuffs, arresting her for disorderly conduct by language.

Benford v. State                                                                  Page 4
        On cross-examination, defense counsel confronted Officer Cross with the

seemingly inconsistent testimony he gave at a previous hearing on a motion to increase

Benford’s bond.     Officer Cross reaffirmed, however, that regardless of his prior

testimony, he was sure that Benford threw the bleach on him and it had not gotten on

him by accident.

        Benford argues that Officer Cross’s testimony “was so vague and contradictory

that no rational trier of fact could have ever convicted Appellant on it,” but the jury is

the exclusive judge of the facts, the credibility of the witnesses, and the weight to be

given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d).      As the reviewing court, we “should not

substantially intrude upon the jury’s role as the sole judge of the weight and credibility

of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Here, by finding Benford guilty, the jury obviously believed Officer Cross’s testimony.

Viewing all the evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact could have found Benford committed the offense of assault of a

public servant beyond a reasonable doubt. We overrule Benford’s third issue.

                      INEFFECTIVE ASSISTANCE OF COUNSEL

        In her first issue, Benford contends that her trial counsel rendered ineffective

assistance because counsel failed to investigate and advise her of the availability of an

insanity defense.

        To prevail on an ineffective assistance of counsel claim, the appellant must prove

by a preponderance of the evidence that (1) counsel’s performance was deficient, and

Benford v. State                                                                    Page 5
(2) the defense was prejudiced by counsel’s deficient performance.           Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Andrews v.

State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The appellate court looks to the

totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Our review of counsel’s representation is highly deferential, and we will find ineffective

assistance only if Benford overcomes the strong presumption that her counsel’s conduct

fell within the range of reasonable professional assistance. See Strickland, 466 U.S. at

689, 104 S.Ct. at 2065.

        The right to “reasonably effective assistance of counsel” does not guarantee

errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.

State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). To overcome the presumption of

reasonably professional assistance, any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson, 9 S.W.3d at 813. When the record is silent regarding the

reasons for counsel’s conduct, a finding that counsel was ineffective would require

impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93

(Tex. App.—Houston [1st Dist.] 1996, no pet.). Therefore, absent specific explanations

for counsel’s decisions, a record on direct appeal will rarely contain sufficient

information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002).       To warrant reversal without affording counsel an

opportunity to explain his actions, “the challenged conduct must be ‘so outrageous that

Benford v. State                                                                    Page 6
no competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533

(Tex. Crim. App. 2007).

        Contrary to the cases on which Benford relies, the record here is silent as to

defense counsel’s reasons for not pursuing an insanity defense. To conclude then that

trial counsel was ineffective based on the asserted grounds would call for speculation,

which we will not do. See Jackson, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93. We thus

conclude that Benford has not overcome the presumption that counsel’s decisions were

reasonably professional and motivated by sound trial strategy. See Salinas, 163 S.W.3d

at 740; Gamble, 916 S.W.2d at 93. We overrule Benford’s first issue.

                   COMMITMENT QUESTION DURING VOIR DIRE

        In her second issue, Benford contends that the trial court erred in allowing the

State to ask an improper commitment question of the venire during voir dire. The State

asked the venire whether they could convict based solely upon the testimony of one

lone witness if the witness satisfied each and every element of the indictment and they

believed the witness beyond a reasonable doubt or whether they would require

additional evidence.      The Court of Criminal Appeals has held that this line of

questioning is proper because it could lead to answers giving rise to a valid challenge

for cause. Lee v. State, 206 S.W.3d 620, 623-24 (Tex. Crim. App. 2006). We thus overrule

Benford’s second issue.

                   DENIAL OF MOTION TO QUASH INDICTMENT

        In her fourth issue, Benford contends that the trial court erred in denying her

motion to quash the indictment. Benford contended in her motion to quash, “The

Benford v. State                                                                  Page 7
indictment is defective in that it does not allege with reasonable certainty the act or acts

which show the Defendant recklessly caused bodily injury to W. Cross.” On appeal,

Benford argues that “[t]he indictment was fundamentally flawed as it did not give

proper notice to Appellant of exactly what manner she was alleged to be reckless or

negligent.”

        The sufficiency of an indictment is a question of law that should be reviewed de

novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Benford was charged

and convicted under section 22.01 of the Penal Code, which provides that a person

commits an assault if that person intentionally, knowingly, or recklessly causes bodily

injury to another and that the assault is a third-degree felony if it is committed against a

person the actor knows is a public servant while the public servant is lawfully

discharging an official duty. TEX. PENAL CODE ANN. § 22.01(a)(1), 22.01(b)(1). The

indictment alleged Benford did

        then and there intentionally, knowingly, or recklessly cause bodily injury
        to W. Cross by throwing bleach on him, and the defendant did then and
        there know that the said W. Cross was then and there a public servant, to-
        wit: a law enforcement officer with the City of Bryan Police Department,
        and that the said W. Cross was then and there lawfully discharging an
        official duty, to-wit: by attempting to detain the defendant.

        The charging instrument here, like that in Crawford v. State, 646 S.W.2d 936 (Tex.

Crim. App. 1983), alleges not only recklessness, but intentional and knowing conduct.

Id. at 937. Thus, as in Crawford, the indictment is sufficient, and we need not determine

the requirements of the indictment as if recklessly had been the only alleged culpable

mental state because the indictment on its face alleges two culpable mental states,


Benford v. State                                                                      Page 8
intentionally and knowingly, which are not subject to the complaint concerning the

culpable mental state, recklessly, made in Benford’s motion to quash. Id.; see also Bartlett

v. State, 249 S.W.3d 658, 671-73 (Tex. App.—Austin 2008, pet. ref’d).

        Furthermore, even if recklessly had been the only alleged culpable mental state,

we would conclude that the indictment sufficiently alleged the acts relied upon by the

State to prove reckless conduct. Here, the indictment did not merely allege Benford

caused bodily injury to Officer Cross; rather, it specified her reckless act of throwing

bleach on him. See State v. Emanuel, 873 S.W.2d 108, 109 (Tex. App.—Dallas 1994, no

pet.) (concluding indictment alleging violation of section 22.01(a)(1) was sufficient

because it “did not merely track the statutory language and allege that [defendant]

recklessly caused bodily injury, as prohibited by article 21.15” but, rather, “specified

[defendant’s] reckless act as hitting the complainant with a belt”).          We overrule

Benford’s fourth issue.

                                     CONCLUSION

        Having overruled all of Benford’s issues, we affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 18, 2012
Do not publish
[CR25]


Benford v. State                                                                      Page 9
