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Date: 08-15-2019

Case Style:

Marlon Windon v. The State of Texas

Case Number: 01-18-00161-CR

Judge: Gordon Goodman

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Jeri Yenne
Kyle Jones

Defendant's Attorney: Faye Gordon
Frank J. Fraley

Description:


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One morning in November 2015, the Clute Police Department received a
report of an incident of possible domestic violence at Thompson’s home on
Crestwood Street. CPD dispatched officers to investigate.
Officer J. Newton found the complainant, Thompson’s adult daughter, at a
neighbor’s home nearby. Earlier that morning, the daughter told Officer Newton,
Thompson argued with her about her use of his car the day before. The argument
became heated, and Thompson approached her. When she put her hand in front of
his face, he bit her forearm. Officer Newton observed a bite mark on her arm.
Patrol Sergeant B. Bryant arrived at the neighbor’s home as Officer Newton
finished interviewing Thompson’s daughter. Officer Newton told Sergeant Bryant
3

that he was ready to speak with Thompson. The officers drove their vehicles the
short distance and parked them on the street in front of Thompson’s home.
Sergeant Bryant followed Officer Newton to Thompson’s front porch.
Thompson met them at the open front door and stood just inside the threshold as he
responded to the officers’ questions. Officer Newton asked Thompson to give his
account of the incident. Thompson admitted to having argued with his daughter and
bitten her forearm. Officer Newton informed Thompson that he was under arrest and
would be taken into custody.
Thompson asked if he could lock up the house, saying that he would lock the
front door and come out the side door. As Thompson began to pull the door shut, the
officers ordered him not to go back inside and told him that he needed to step outside
the doorway and onto the front porch. Officer Newton shouted “no!” several times
as he and Sergeant Bryant pushed on the door to keep Thompson from closing it.
When they opened the door, they saw Thompson had bent over and clenched his
hands into fists.
As Thompson charged at the officers, he punched Officer Newton in the face.
Officer Newton stumbled but quickly regained his balance. Then, he and Sergeant
Bryant grabbed Thompson and forced him to the floor of the front porch. The
officers tried to place handcuffs on Thompson, but he stood up and moved away
from them before they could be fastened. The officers wrestled with Thompson in
4

the front yard as he resisted the officers’ efforts to gain control. Officer Newton
decided to use his taser. He shouted “TASE” three times, then used the taser on
Thompson. Thompson fell to the ground, but when the shock ended five seconds
later, he tried to stand up again. Officer Newton warned Thompson that he would
tase him again if he continued to resist. Thompson did not heed the warning. After
Officer Newton used the taser a second time, the officers were able to place
handcuffs on Thompson.
The dashboard camera on Officer Newton’s vehicle recorded the interaction
with Thompson. The camera was not within range of Thompson’s front door, so the
State presented only audio of the portion that occurred there. It presented both audio
and video of the struggle that took place in Thompson’s front yard.
A Brazoria County grand jury indicted Thompson, charging that he
did then and there intentionally, knowingly, or recklessly cause bodily injury to John Newton by hitting John Newton with the defendant’s hand, and the defendant did then and there know that the said John Newton was then and there a public servant, to-wit: a peace officer, and that the said public servant was then and there lawfully discharging an official duty.
DISCUSSION
I. Evidentiary Sufficiency
Thompson challenges the sufficiency of the evidence to support two elements
essential to prove assault of a public servant: proof that the officer suffered bodily
injury and that the officer was lawfully discharging an official duty.
5

A. Standard of review
In a criminal appeal, we review the defendant’s challenge to sufficiency of the
evidence supporting jury findings under the standard set forth in Jackson v. Virginia.
See 443 U.S. 307, 319–22 (1979); Brooks v. State, 323 S.W. 3d 893, 902 (Tex. Crim.
App. 2010). Under it, we examine all the evidence in the light most favorable to the
verdict and determine whether a rational factfinder could have found the challenged
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19.
We measure the evidence “by the elements of the offense as defined by the
hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997).
The jury is the sole judge of the credibility of the witnesses and we do not
usurp this role by substituting our judgment for that of the jury. Montgomery v. State,
369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may believe or disbelieve
all or any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991). We presume that the factfinder resolved any inconsistencies
in the evidence in favor of the verdict, and we defer to that resolution. See Brooks,
323 S.W.3d at 922. As a reviewing court, we may not re-evaluate the evidence’s
weight and credibility or substitute our judgment for the factfinder’s. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Circumstantial evidence is as
probative as direct evidence in establishing guilt, and circumstantial evidence alone
6

can suffice to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim.
App. 2011); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
B. Assault of a public servant
An actor commits the misdemeanor offense of assault when the actor
“intentionally, knowingly, or recklessly causes bodily injury to another.” TEX.
PENAL CODE § 22.01(a)(1). This offense becomes a third-degree felony, as charged
in this case, 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).
The offense of assault of a public servant thus requires the State to prove, in addition
to misdemeanor assault, that:
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; 4. the person assaulted was lawfully discharging official duties.
Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005).
A “public servant” is a person elected, selected, appointed, employed, or
otherwise designated as an officer, employee, or agent of government. TEX. PENAL
CODE § 1.07(a)(41)(A). An officer is lawfully discharging his official duties if the
officer is acting within his capacity as a peace officer. Guerra v. State, 771 S.W.2d
453, 461 (Tex. Crim. App. 1988); Johnson v. State, 172 S.W.3d 6, 11 (Tex. App.—
Austin 2005, pet. ref’d). Whether the police officer lawfully arrested or detained a
7

person is not relevant to whether the officer is lawfully discharging an official duty.
Hall, 158 S.W.3d at 474–75; Hughes v. State, 897 S.W.2d 285, 297–98 (Tex. Crim.
App. 1994); see Mays v. State, 318 S.W.3d 368, 388 (Tex. Crim. App. 2010)
(quoting Montoya v. State, 774 S.W.2d 15, 29 (Tex. Crim. App. 1987), overruled on
other grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996)). The
officer is lawfully discharging his official duties as long as the officer is not
criminally or tortiously abusing his office, such as by committing official
oppression, violating the civil rights of a person in custody, or using unlawful,
unjustified force. Hall, 158 S.W.3d at 474–75. Circumstances relevant to finding
whether an officer was acting within his official capacity include whether the officer
was in uniform, on duty, and on regular patrol when the assault occurred. Hughes,
897 S.W.2d at 298.
C. Analysis
Thompson contends that the evidence is legally insufficient to prove that he
caused bodily injury to Officer Newton—an element of misdemeanor assault—and
the additional element that Officer Newton was lawfully discharging his official
duties when the assault occurred.
As result-oriented assaultive offense, the actus reus for bodily-injury assault
is causing the bodily injury; the specific act or the nature of the defendant’s conduct
that caused the bodily injury does not matter. Landrian v. State, 268 S.W.3d 532,
8

537 (Tex. Crim. App. 2008). The evidence thus must prove only that the defendant’s
conduct, accompanied by the required level of intent, caused the bodily injury. Id.
As Thompson acknowledges, the Texas Court of Criminal Appeals has broadly
interpreted “bodily injury” in the context of misdemeanor assault to include “even
relatively minor physical contacts so long as they constitute more than mere
offensive touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
Officer Newton testified that Thompson clenched his hands into fists, charged
at him, and hit him in the face. Evidence adduced at trial included medical records
and photographs of Officer Newton’s face showing a mark under his right
cheekbone. EMS records made in connection with Officer Newton’s medical
treatment shortly after the incident describe a contusion on Officer Newton’s right
cheek. Officer Newton confirmed that the photos of the right side of his face were
taken later the same day and accurately show his appearance shortly after the
incident. He testified that Thompson’s punch caused him pain and described the
mark it left on his cheek as red and purple from bruising. We hold that on this
evidence, a rational factfinder could have found beyond a reasonable doubt that
Thompson caused bodily injury to Officer Newton.
In challenging the legal sufficiency of the evidence that Officer Newton was
lawfully discharging his official duties when the assault occurred, Thompson points
to his own testimony concerning a 2013 car accident in Freeport, in which Officer
9

Newton’s police vehicle rear-ended Thompson’s car. According to Thompson,
Officer Newton, who was responsible for the accident, threatened Thompson that if
Officer Newton saw him again, he would arrest Thompson “by any and all means
necessary.”
This testimony concerning Officer Newton’s purported motive to arrest
Thompson, however, does not constitute evidence that Officer Newton was not
lawfully discharging his official duties when he arrested Thompson in November
2015. See Hall, 158 S.W.3d at 474–75 (explaining that officer who does not
criminally or tortiously abuse office, i.e., does not commit official oppression,
violate civil rights of person in custody, or use unlawful, unjustified force, is lawfully
discharging official duties). Viewing the evidence in the light most favorable to the
verdict, Officer Newton was on duty and in uniform when he was dispatched to
investigate a complaint of family violence from Thompson’s adult daughter. After
Thompson admitted to having bitten his daughter’s arm, Officer Newton told
Thompson that he would be arrested and taken into custody. Thompson failed to
comply with the officers’ orders to stop closing his front door and step outside and,
when the officers managed to force the door open, Thompson lunged toward them
and punched Officer Newton in the face. The jury was free to disbelieve Thompson’s
testimony that he did not intend to hit Officer Newton and fell toward the officer
because he was off balance. See Montgomery, 369 S.W.3d at 192. As a result, we
10

hold that the evidence is legally sufficient to support the jury’s finding that Officer
Newton was lawfully discharging his official duties when Thompson caused the
bodily injury.
II. Exclusion of Evidence
A. Standard of review
Claiming that Officer Newton’s firing from the Freeport Police Department
after the 2013 car accident gave Officer Newton a motive to falsely accuse
Thompson of assaulting him, Thompson contends that the trial court violated his
right under the Confrontation Clause of the Sixth Amendment to the United States
Constitution by excluding Thompson’s proffered testimony on that issue. We
review a trial court’s ruling on the admission or exclusion of evidence for an abuse
of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We
will uphold the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Tillman, 354 S.W.3d at 435; Walker, 321 S.W.3d at 22. We will
uphold the trial court’s ruling if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002).

11

B. Preservation of error
The State responds that Thompson failed to preserve his constitutional
challenge to the exclusion of this evidence for appellate review. To preserve a claim
of error, an appellant must make a timely, specific request, objection, or motion. See
TEX. R. APP. P. 33.1. This requirement applies with equal force to constitutional
challenges: a defendant wishing to preserve an argument that the exclusion of
evidence violates constitutional principles must make a timely objection stating the
grounds for the ruling that he seeks with sufficient specificity to make the trial court
aware of these grounds. Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim.
App. 2018) (holding that defendant failed to preserve Confrontation Clause
challenge where record showed he sought admission of testimony based only on
relevance) (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).
Thompson made an offer of proof as to his testimony concerning Officer
Newton’s employment in Freeport.1 See Alfaro v. State, 224 S.W.3d 426, 433 (Tex.
App.—Houston [1st Dist.] 2006, no pet.); TEX. R. EVID. 103(a)(2). At the end of
Thompson’s proffered testimony, the State told the trial court that it had no objection
to testimony concerning Officer Newton’s purported threat, but that it did object on
1 At the beginning of trial, the trial court allowed defense counsel to question Officer Newton about his recollection of the accident but did not permit questioning about any alleged threat made to Thompson, a condition that the trial court made subject to reconsideration in a later hearing if warranted. The record shows no attempt to seek a later hearing or otherwise revisit this issue.
12

relevance grounds to the statements about Officer Newton’s prior employment with
the FPD. Thompson’s appellate brief suggests that the trial court erred in sustaining
the State’s relevance objection, but Thompson did not challenge that ruling or ask
the trial court to reconsider it at the time. On the contrary, Thompson’s trial counsel
assured the court that he “wasn’t going to ask” Thompson about Freeport, would
“stay away from that [topic]” in questioning Thompson, and would advise
Thompson to stay away from it as well. The trial court asked Thompson if he
understood, and Thompson agreed that he did. Thompson’s testimony before the
jury did not raise the issue. We therefore hold that Thompson failed to preserve his
Confrontation Clause challenge for appellate review. See TEX. R. APP. P. 33.1.

Outcome: We reinstate the appeal on this court’s active docket and affirm the judgment
of the trial court.

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