Cruz v. State, B14-91-00428-CR

• Citation: 838 S.W.2d 682
• Decision Date: 13 August 1992
• Docket Number: No. B14-91-00428-CR,B14-91-00428-CR
• Parties: Robert Baez CRUZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 682

838 S.W.2d 682

Robert Baez CRUZ, Appellant, v. The STATE of Texas, Appellee.

No. B14-91-00428-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 13, 1992.

Rehearing Denied Sept. 10, 1992.

Discretionary Review Refused

Jan. 27, 1993.

Charles W. Wexler, Jr., B.N. Tucker, Jr., Huntsville, for appellant.

Travis L. McDonald, Huntsville, for appellee.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

Appellant entered a plea of not guilty before a jury to the offense of aggravated assault of a correctional officer. TEX.PENAL CODE ANN. § 22.02(a)(2). He was convicted and the jury assessed punishment, enhanced under TEX.PENAL CODE ANN. § 12.42(d), at imprisonment for forty years. Appellant raises eight points of error. We affirm.

Appellant is an inmate at the Wynne Unit and was charged with assaulting Correctional Officer Jaqueline Galloway. On or about December 5, 1988, Correctional Officer Stephen Palmer was removing unauthorized items from appellant's cell while appellant was in the shower. Cells are "shaken down" daily for the safety of inmates and officers. Officer Palmer was removing magazine clippings from the wall of appellant's cell. Fire code regulations allow inmates only two personal pictures and a calendar. Appellant had violated these regulations on at least three or four other occasions. Appellant was handcuffed and escorted back to his cell by Sergeant Thomas Chesser, Officer Galloway and Officer Thomas Wardell. Appellant saw Officer Palmer shaking down his cell. Appellant became agitated and began cursing at Officer Palmer. Sergeant Chesser attempted to calm appellant. Sergeant Chesser was facing appellant and Officer Galloway and the other officer were standing behind appellant. Appellants hands were cuffed behind his back and Officer Galloway had her hand on appellant's handcuffs. Appellant backed one of the officers against a railing and kicked Sergeant Chesser. The officers then pulled appellant to the floor. Appellant struggled and fell on top of Officer Galloway, who, it was later determined, suffered a dislocated left hip. Officer Galloway had to be carried from the scene.

In his first point of error, appellant contends that the trial court erred in failing to sustain his objection to the indictment. Specifically, appellant contends that the indictment is insufficient because it fails to allege the act or acts which show that appellant recklessly caused bodily injury to the officer.

Article I, section 10 of the Texas Constitution guarantees the accused the right to be informed of the "nature and cause of the accusations against him." Article 21.15 of the Code of Criminal Procedure provides that whenever the accused is charged with acting recklessly in the commission of an offense, the indictment must allege with reasonable certainty the act or acts constituting recklessness. TEX.CODE CRIM.PROC.ANN. art. 21.15 (Vernon 1989). The indictment is insufficient if it merely alleges that the accused acted recklessly in committing the offense. Id. In the instant case, the indictment alleges that appellant "... did then and there knowingly, intentionally and recklessly cause bodily injury to Jaqueline Galloway, by striking her with his body and causing her to fall to the floor...." (emphasis added). It is proper to allege the culpable mental states in the conjunctive and to charge the jury in the disjunctive, as the State did here. Rogers v. State, 774 S.W.2d 247, 251 (Tex.Crim.App.), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989). The State was not required to plead evidentiary facts. We conclude that the indictment adequately informed appellant of the acts constituting recklessness. See Gengnagel v. State, 748 S.W.2d 227, 229-30 (Tex.Crim.App.1988). We overrule appellant's first point of error.

In his second point of error, appellant attacks the sufficiency of the evidence. Appellant contends that he did not intend to cause bodily injury to Officer Galloway.

In reviewing the sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). Intent may be established by circumstantial evidence; it can can be inferred from the acts, words and conduct of the accused. Romo v. State, 593 S.W.2d 690, 693 (Tex.Crim.App. [Panel Op.] 1980); McHenry v. State, 689 S.W.2d 479, 480 (Tex.App.--Houston [14th Dist.] 1985, no pet.); Fewell v. State, 687 S.W.2d 807, 810 (Tex.App.--Houston [14th Dist.] 1985, no pet.). In addition, intent is a fact question to be determined by the jury from the evidence. See Id.

Officers Palmer, Chesser, and Galloway testified that appellant became "violent, agitated or belligerent" when he discovered Officer Palmer conducting a routine shake-down of his cell. Appellant kicked Sergeant Chesser and backed another officer against the railing. The officers used force to subdue appellant, who struggled to resist the officers. In the scuffle, appellant fell on top of Officer Galloway. The law presumes that a person intends the natural and probable consequences of his voluntary acts. See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Emerson v. State, 662 S.W.2d 92, 96 (Tex.App.--Houston [1st Dist.] 1983), aff'd., 727 S.W.2d 267 (Tex.Crim.App.1987). The jury reasonably concluded that if appellant had not become belligerent and kicked Sergeant Chesser, the officers would not have had to use force and Officer Galloway would not have been hurt.

Several inmates testified that Officer Wardell charged appellant and inadvertently knocked Officer Galloway to the floor. As factfinder, the jury is the exclusive judge of credibility of witnessess and the weight to be afforded their testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). Further, "a reviewing court ... faced with a record of historical facts that supports conflicting inferences must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Matson v. State, 819 S.W.2d at 846. Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. We overrule appellant's second point of error.

In his third point of error, appellant contends that he was denied access to exculpatory evidence in violation of his due process rights.

The complained-of evidence includes a statement by appellant that "I fell on the run" and witness statements by inmates Matthew Lyle and Richard Williams. According to Lyle and Williams, an Officer "Coot" or "Hoot" took an errant swing at appellant. As Officer Galloway attempted to place a "head lock" on appellant, the officer pushed appellant and Officer Galloway against the bars of the cell and, along with several other officers, knocked them to the floor. Appellant also complains of a statement by Officer Galloway that "the inmate then struggled in an attempt to kick Sergeant Chesser [and] I then pulled on the cuffs toward myself and the inmate was placed on the ground...." Appellant further points to a supervisor report which states that Officer Galloway was "pinned against the security fence and underneath the inmate." The complained-of evidence was contained in internal Texas Department of Criminal Justice (TDCJ) documents subpoenaed by appellant and produced in camera for the trial court. After a hearing, the trial court quashed the subpoenas.

A defendant in a criminal case does not have a general right to discovery of evidence in possession of the State. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex.Crim.App.1990); Whitchurch v. State, 650 S.W.2d 422, 425 (Tex.Crim.App.1983). Decisions involving pretrial discovery of evidence which is not exculpatory, mitigating or privileged are within the discretion of the trial court. Kinnamon, 791 S.W.2d at 91; Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); Dickens v. Court of Appeals for the Second Supreme Judicial District of Texas, 727 S.W.2d 542, 551 (Tex.Crim.App.1987); TEX.CODE CRIM.PROC.ANN. art. 39.14 (Vernon 1979).

The holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires disclosure only of evidence that is both favorable to the accused and material either to guilt or to punishment. United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985) (citing Brady, 373 U.S. at 87, 83 S.Ct. at 1197). To invoke Brady, the accused must present evidence that: (1) the prosecution suppressed or withheld evidence; (2) this evidence would have been favorable to the accused; and (3) this evidence would have been material to the accused's defense. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972); Mullen v. State, 722 S.W.2d 808, 815 (Tex.App.--Houston [14th Dist.] 1987, no pet.). Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 692, 105 S.Ct. at 3388; Amos v. State, 819 S.W.2d 156, 159 (Tex.Crim.App.1991), cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 692, 105 S.Ct. at 3388; Amos, 819 S.W.2d at 159.

Initially, we note that the situation here is analogous to that under the federal rules of...