Campbell v. State
| Decision Date | 08 January 2003 |
| Docket Number | No. 10-01-233-CR.,10-01-233-CR. |
| Citation | 128 S.W.3d 662 |
| Parties | Willie Frank CAMPBELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John M. Hurley, Waco, for appellant.
John Segrest, McLennan County Dist. Atty., James Wiley, McLennan County Asst. Dist. Atty., Waco, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
Willie Frank Campbell was indicted for using a handgun (a deadly weapon) to threaten Waco Police Officer Benjamin Rush with imminent bodily injury while Rush was attempting to arrest Campbell— a first degree felony. Tex. Pen.Code Ann. § 22.02(a)(2), (b)(2) (Vernon 1994). A jury convicted Campbell, and he was sentenced to thirty-three years in prison. He brings four issues on appeal, asserting:
1. The evidence is legally insufficient to support the conviction.
2. His due process rights were violated because section 22.02 and the indictment refer to assault on a "public servant," but the indictment, charge, and verdict form refer to assault on a "peace officer" and a "police officer," and therefore the jury did not find him guilty of the offense as alleged.
3. The trial court's deadly weapon finding should be set aside because of the mistake complained about in issue two.
4. The trial court erred by denying a jury charge instruction on a lesser-included offense of resisting arrest using a deadly weapon, a third-degree felony.
We will reverse the judgment based on Campbell's issue about the lesser-included offense.
Campbell was wanted on outstanding warrants. He was spotted, on foot, by law enforcement officers. Officer Rush testified that he chased Campbell, and when he caught up to him, Campbell had his hands in his pockets as though he was attempting to discard something; he dropped something on the ground. Then Rush grabbed him around the upper body and tried to pull him down. Campbell resisted, "kind of hump[ed] over," and said "get back." Then, according to Rush, Campbell "kind of start[ed] straightening back up and [he had] a gun in his hand." Rush testified:
He's got the gun in his hand and I've got him around his arm like this so he-I'm kind of-I'm squeezing him, I'm like, "I've got to get away from him now," because I can't defend myself because my arms are up around the top of him. So he's got the gun in his hand and he starts-he's trying to turn to his left. When he turned to the left I just let him keep coming and when he comes to the left, he's got the gun up like this.... I just keep coming with him and I just kind of just shove him into the wall.... I tried to get my distance from him ....
Campbell argues that he never threatened the officer, but rather at most attempted to do so. Campbell testified that when Rush "bearhugged" him from behind, he tried to get away. Campbell bent over, and Rush was on Campbell's back. Finally, Rush pushed Campbell away. Campbell testified: I "had a gun in my hand and I was running down the breezeway and that's when I threw [the gun] on top of the roof." He said he pulled out the gun only as he began to run, and his purpose was to get rid of it. He denied ever saying "get back."
After the struggle with Rush, Campbell ran, discarding the gun along the way. Rush again pursued Campbell and eventually caught and arrested him. The gun was retrieved, and there was evidence it was not loaded.
In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim.App.1996) (). We consider all the evidence, both direct and circumstantial, including evidence improperly admitted. Logan v. State, 48 S.W.3d 296, 299 (Tex.App.-Texarkana 2001) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993)), aff'd, 89 S.W.3d 619 (Tex.Crim.App.2002).
As indicted, the statutory elements of aggravated assault applicable in this case are:
1. intentionally or knowingly threatening another with imminent bodily injury (the assault);
2. using or exhibiting a deadly weapon during the commission of the assault; and
3. committing the assault against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty
Tex. Pen.Code Ann. § 22.02(a)(2), (b)(2). Campbell was not charged with the alternate manner of committing this offense, i.e., causing serious bodily injury during an assault on a public servant (no deadly weapon element). Id. § 22.02(a)(1).
Although Campbell refuted some of Rush's testimony, there was evidence that Campbell and Rush scuffled and that Campbell produced a gun and said "get back." When we view all the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that Campbell intentionally threatened Rush with imminent bodily injury and, in the process, used or exhibited a gun. Lane, 933 S.W.2d at 507. We overrule the issue.
Campbell claims that his due process rights were violated because the statute and the indictment refer to assault on a "public servant," whereas the indictment, charge, and verdict form refer to assault on a "peace officer" and "police officer." The statute reads in part: "the offense is a felony of the first degree if the offense is committed ... against a person the actor knows is a public servant ...." Tex. Pen. Code Ann. § 22.02(b)(2). The indictment reads in part: "that the said Benjamin Rush was then and there a public servant, to-wit: a police officer ...." The charge reads in part: Campbell is charged with aggravated assault "on a public servant...," followed by "[s]uch assault is aggravated assault when committed upon a peace officer in the lawful discharge of official duty when the person committing the assault knows or has been informed that the person assaulted is a public servant." The charge continues with a set of instructions referring multiple times to "peace officers" and the presumption that the assaulter knew the victim was a peace officer if the victim was wearing a distinctive uniform. The application paragraph at the end of the charge repeats parts of the indictment including the phrase "a public servant, to-wit: a police officer," and concludes "then you will find the defendant guilty of aggravated assault on a peace officer, as charged in the indictment." The verdict form states: "We, the jury, find the defendant ... guilty of the offense of aggravated assault of a peace officer, as alleged in the indictment."
The statute uses the term "public servant." The indictment uses two terms: "public servant" and "police officer." The charge uses three terms: "public servant," "police officer," and "peace officer." The verdict form uses the term "peace officer." Campbell says this is constitutional error requiring analysis under Rule 44.2(a). Tex.R.App. P. 44.2(a).
None of the terms are defined in the charge. Section 1.07 of the Penal Code provides definitions of "peace officer" and "public servant."
(36) "Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.
...
(41) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:
(A) an officer, employee, or agent of government;
(B) a juror or grand juror; or
(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or
(D) an attorney at law or notary public when participating in the performance of a governmental function; or
(E) a candidate for nomination or election to public office; or
(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.
Tex. Pen.Code Ann. § 1.07(36), (41) (Vernon 1994).
The use of two terms not contained in the statute and the mixing of two or three terms in the various instruments used at trial can result in confusion. However, we do not think this is a due process error or even a "variance" question. See Gollihar v. State, 46 S.W.3d 243 (Tex. Crim.App.2001) (). Furthermore, any complaint about the adequacy of the indictment was waived by failure to object. Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp.2002).
Rather, this is simple charge error which was not objected to at trial; we review unpreserved charge error in a criminal case for "egregious harm." Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim.App.2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (opinion on reh'g). Errors that result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 172). In deciding whether there is egregious harm, we look to (1) the charge itself, (2) the state of the evidence, including what issues were contested, and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171 (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim.App.1993) (citing Almanza)).
The State argues that a "public servant" is a broad term including "peace officers" and "police...
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