Blue v. State

• Decision Date: 04 December 1998
• Docket Number: No. 01-96-00771-CR,01-96-00771-CR
• Citation: 983 S.W.2d 811
• Parties: Benjamin Leon BLUE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 811

983 S.W.2d 811

Benjamin Leon BLUE, Appellant, v. The STATE of Texas, Appellee.

No. 01-96-00771-CR

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 4, 1998.

Randolph Earl Roll, Kristine C. Woldy, Houston, for Appellant.

John B. Holmes, Alan Curry, Houston, for Appellee.

EN BANC OPINION ON REHEARING ON COURT'S MOTION

MARGARET GARNER MIRABAL Justice.

A jury found appellant, Benjamin Leon Blue, guilty of aggravated assault on a public servant. The jury assessed punishment at confinement for 10 years and a fine of $3000. A divided panel of this Court affirmed the judgment on June 25, 1998. Rehearing en banc was granted on the Court's own motion and the June 25 opinion was withdrawn. We substitute this opinion in its stead. We affirm.

In his first two points of error, appellant asserts that reversible error occurred when the trial judge made opening comments to a group of 60 prospective jurors at the beginning of the jury selection process. The comments were made before the attorneys had begun to voir dire the prospective jurors.

Appellant's trial counsel made no objection to the trial judge's comments. The subsequent voir dire proceedings cover 90 pages in the reporter's record; defense counsel thoroughly questioned the prospective jurors.

The general rule is that, in order to preserve for appellate review a complaint about a trial judge's comments during trial, counsel must object or otherwise bring the complaint to the trial judge's attention so the judge has an opportunity to correct the error. TEX.R.APP. P. 33.1; Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App.1983); Smith v. State, 959 S.W.2d 1, 28 (Tex.App.--Waco 1997, pet. ref'd); Rosales v. State, 932 S.W.2d 530, 537 (Tex.App.--Tyler 1995, review refused); Moore v. State, 907 S.W.2d 918, 923 (Tex.App.--Houston [1st Dist.] 1995, pet. ref'd). From a review of the complete record in this case, we conclude the general rule applies.

Accordingly, we overrule points of error one and two.

In his third point of error, appellant asserts the evidence is factually insufficient to demonstrate that appellant knew Baytown Police Officer Woolcock was a peace officer at the time of the alleged offense.

In reviewing factual sufficiency of the evidence, this Court is to view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 131 (Tex.Crim.App.1996); Wilkerson v. State, 920 S.W.2d 404, 407 (Tex.App.--Houston [1st Dist.] 1996, no pet.). We apply the factual sufficiency test to the facts without the prism of "in the light most favorable to the verdict." Clewis, 922 S.W.2d at 135.

The charge in this cause reads, in pertinent part:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day of November, 1995 the defendant, Benjamin Leon Blue, did then and there unlawfully, intentionally or knowingly cause bodily injury to D. Woolcock, a person the defendant knew was a public servant while D. Woolcock was lawfully discharging an official duty to-wit: attempting to detain the defendant by striking D. Woolcock in the chest with his body; or ... by striking D. Woolcock in the face with his arm; or ... by striking D. Woolcock in the face with his hand, then you will find the defendant guilty as charged in the indictment.

The evidence shows that around 3:00 a.m. on November 1, 1995, Melissa Simmons looked out her apartment window and saw the back of a man standing by a Mazda RX-7. The area was poorly lit, but Simmons could see the man wore dark clothes and white tennis shoes. The man attempted to get into the car without car keys, so Simmons called the police. Simmons watched Officer Woolcock arrive and walk up behind the man. She observed Woolcock in uniform with his flashlight and gun drawn. Simmons claimed that Woolcock yelled "police" and told the man to turn and to come with him. The man then tried to get away, but the open car door blocked his escape between the surrounding cars. Woolcock grabbed the man's jacket, and the two men backed out from between the cars. At this point, Simmons' view was obscured by a tree, but she heard scuffling and then a gun discharge. Simmons was unable to recognize the man she saw that night.

Woolcock testified that he was dispatched at 3:48 a.m. to a vehicle being burglarized in front of an apartment complex. Woolcock was advised to look for a black male dressed in black inside the vehicle. Woolcock parked several buildings away from the site and approached on foot with his flashlight in his right hand and his pistol in his left. The area was poorly lit and could be considered dark. Woolcock was wearing his full police uniform and badge. As he approached the vehicle, Woolcock noticed that the back driver's side window was shattered and some stereo components lay on the ground between the burglarized car and the car next to it. Woolcock saw appellant leaning inside the vehicle with his sweatshirt hood over his head. Approximately two feet from appellant, Woolcock pointed his pistol at appellant, shined his flashlight on him, and ordered appellant not to move. Woolcock did not verbally identify himself as a police officer.

Appellant jerked out of the car and charged "smack into" Woolcock. As a reaction to being attacked, Woolcock grabbed appellant's shoulder with his right hand and struck appellant on either the head or shoulder with the pistol in his left hand, probably at the barrel or the trigger. Appellant continued flailing, trying to get loose and get away. At some point, appellant struck Woolcock in the chest with his body, knocking Woolcock down and causing injury to his elbow and knee. The men fell near the rear of the car, Woolcock shoved by appellant. Then both men regained their feet with Woolcock maintaining his grip on appellant's sweatshirt. Woolcock attempted to wrap appellant up with his left hand, when his arm was shoved away and his gun discharged. At the time Woolcock's arm was pushed away, the two men were chest to chest.

Woolcock had no intention of firing his weapon or shooting appellant. At the time he approached the vehicle, Woolcock's semi-automatic weapon already had a bullet in the chamber. Woolcock did not know if appellant had been shot, but appellant did curse after the gun discharged and the struggle did continue. At some point during appellant's flailing, appellant also struck Woolcock in the chin and nose, causing him pain. The men fell to the ground two more times after the gun discharged. The final time, appellant was able to struggle to his feet, wriggle out of his sweatshirt, and run off. Simultaneously, Officer White arrived at the scene and both policemen gave chase, with Woolcock eventually returning to the site of the altercation because he was "hurt, sore, and tired."

White did not see who initiated the struggle. By the time White reached Woolcock, appellant had broken free and was running away. During his pursuit of appellant, White was joined by other officers. White then returned to the crime scene to check on Woolcock and secure the crime scene.

Officer Pettigrew joined the search for appellant and was eventually directed to a homeowner's garage. There, Pettigrew found appellant hidden under a car. Appellant advised Pettigrew that he was injured because the "damn cop shot him for no reason." Appellant added that he found the car open, was just looking inside, and was only trying to get away from the officer, not hurt him. Appellant mentioned several times that the officer did not have the right to shoot him.

Pettigrew described the proper procedure for taking a suspect into custody, including leaning against the wall and spreading one's hands and legs. Appellant attempted to show that Woolcock had not followed this procedure, so appellant did not know he was a peace officer. However, Pettigrew stated that varying circumstances call for varying procedures. Officer Erickson joined the investigation after the officers found appellant. Erickson bagged the property taken from appellant, including a sheathed knife, later identified as taken from another burglarized vehicle.

After the brief scuffle, Woolcock could not identify appellant. Woolcock did see appellant later that morning when he was stepping into an ambulance after being arrested, but Woolcock only saw appellant's back and had to be told exactly who it was. Woolcock had seen appellant before this particular incident, and, at that time, Woolcock had been wearing his uniform and discharging some duty as a peace officer. Woolcock identified pictures taken after the scuffle of his scraped knee and elbow, as well as scuff marks and holes in his pants and scuff marks on his shirt.

Appellant pled guilty to the offense of burglary of a motor vehicle. Appellant testified he was trying to remove the radio from the car when he heard footsteps behind him. When appellant turned, he saw a shadow. Appellant tried to run, but the person jumped on his back and they both fell to the ground. Appellant claimed Woolcock warned appellant that Woolcock was going to shoot him, and then the gun was fired. Appellant had a knife in his pocket that he could have used to stab Woolcock, but appellant was simply trying to get away since he did not know who was grabbing him. The entire incident "happened so fast."

Appellant stated Woolcock ran into him and appellant did not strike Woolcock in the face or chest. Appellant also claimed that, after he broke free from Woolcock and was trying to hide, appellant saw police cars and realized the man he struggled with must have been an officer. However, during the struggle appellant never faced Woolcock. Appellant testified he did not know Woolcock from any prior occasion.

The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to the testimony. TEX.CODE CRIM. P. ANN. art. 36.13 (...