Evans v. State

• Decision Date: 10 May 1994
• Docket Number: No. 06-93-00079-CR,06-93-00079-CR
• Citation: 876 S.W.2d 459
• Parties: Bernard Vince EVANS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 459

876 S.W.2d 459

Bernard Vince EVANS, Appellant, v. The STATE of Texas, Appellee.

No. 06-93-00079-CR.

Court of Appeals of Texas Texarkana.

Submitted March 15, 1994.

Decided March 31, 1994.

Rehearing Denied May 10, 1994.

Ming Roschke, College Station, for appellant.

Bill R. Turner, Dist. Atty., Bryan, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Bernard Vince Evans appeals from a conviction for aggravated assault of a peace officer. A jury found him guilty and assessed punishment at four years' incarceration and a $2,000 fine.

Evans contends that the trial court erred (1) in giving an instruction on factual matters favoring the State, (2) in excluding testimony relevant to a defensive theory, (3) in excluding character evidence regarding the victim (4) in refusing to instruct the jury on self-defense, (5) in refusing to instruct the jury on defense of property, (6) in refusing to instruct the jury on the legality of the arrest of the defendant, and (7) in refusing to allow a reasonable time to review the jury charge.

The State presented evidence showing the following sequence of events: On August 26, 1990, while Officer Robin Sonsel was patrolling the streets of Bryan, Texas, looking for traffic violators, he spotted a green car with an expired inspection sticker driven by a black male. Sonsel pursued the car but briefly lost sight of it before spotting it again parked on the side of the road. Sonsel drove past the car and observed the defendant, Bernard Evans, a black male, standing beside his residence. Sonsel parked his vehicle, approached Evans, and informed him that he had an expired inspection sticker and an expired license plate, the latter of which Sonsel had noticed after stopping.

The officer asked Evans to produce his driver's license and his proof of insurance, but Evans refused stating that he was on private property and, therefore, he did not have to cooperate. Eventually, Evans did show his driver's license to Sonsel, but he continued to refuse to demonstrate proof of insurance, again explaining that he was on private property. Sonsel wrote three citations--for the inspection sticker, the license, and the failure to show proof of insurance--and attempted to give them to Evans. Evans agreed to sign two of the tickets but refused to sign the proof of insurance citation. Sonsel then told Evans that he was placing him under arrest, but Evans told the officer that he was not going to jail.

Sonsel called for back-up, and, when he returned to Evans, Evans placed his hand inside the front of his pants or shorts and Sonsel ordered him to remove his hand. Evans refused, prompting Sonsel to place his hand on his weapon. After a further warning to remove his hand, Evans took his hand out of his pants and put it in his pocket, so Sonsel again advised him to take out his hand. Evans asked Sonsel if he was going to shoot him and, after the officer replied that he would not shoot if Evans took his hand out, Evans flung his hands up, asked if he could back up a minute, and then walked toward the side door of the house.

Sonsel followed as Evans began to yell that the officer was not going to take him to jail or shoot him. Evans then moved to enter the residence, prompting Sonsel to grab Evans's arm in an attempt to pin it behind his back. Evans broke free, turned on Sonsel, and struck the officer with his elbow and then attempted to strike him again. Sonsel managed to wrestle Evans to the ground, but Evans rolled them over so that he was on top of Sonsel and commenced battering the officer repeatedly with his fists. Eventually, Evans pulled Sonsel by his hair over to a concrete flower bed where he drove the officer's head into the concrete several times. Evans then continued to batter Sonsel until other officers arrived on the scene.

JURY INSTRUCTION ON FACTUAL MATTER

Evans first contends that the trial court erred in expressing an opinion on the weight of the evidence in the jury charge. In the general instructions section of the charge, the court stated that

[i]f the offense is a motor vehicle violation such as those described in the evidence in this case, it is lawful for a peace officer to take the person into custody if the person refuses to sign a promise to appear in court.

Evans contends that in this reference to the evidence, the court impermissibly expressed an opinion on the weight of the evidence. See Daniell v. State, 848 S.W.2d 145 (Tex.Crim.App.1993) (a judge may not give instructions with regard to factual matters). ¹

Defense counsel, however, failed to preserve error in failing to object to the charge on this basis. When no proper objection is made at trial, error in the jury charge will mandate reversal only if it is so egregious and created such harm that the defendant did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). In making this determination, the court should examine the harm caused in the light of the entire jury charge, the state of the evidence, and any other relevant information in the record. Id.

Evans contends that the erroneous passage in the charge was harmful because one of the factual issues to be determined by the jury was whether Evans did commit a traffic offense because this was relevant to whether Sonsel was making a lawful arrest. But, in Gonzalez v. State, 574 S.W.2d 135, 137 (Tex.Crim.App. [Panel Op.] 1978), the court held that a conviction for aggravated assault of a peace officer does not depend on whether the arrest being made by the officer was legal. See also Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App.1987) (a police officer is still acting within the lawful discharge of his duties when he makes an unlawful arrest, so long as he is acting within his capacity as a peace officer).

The trial court's instruction improperly addressed a factual matter, but this error is not so egregious and does not create such harm to Evans so as to suggest that he did not have a fair and impartial trial. This point of error is overruled.

EXCLUSION OF TESTIMONY

Evans next contends that the trial court erred in prompting the State to make an objection during defense counsel's cross-examination of Officer Sonsel and in excluding testimony by Sonsel that was relevant to a defensive theory. During defense counsel's cross-examination of Sonsel, she began to ask him questions regarding proper arrest procedure when the trial judge asked counsel for both parties to approach the bench. The judge then asked defense counsel, in the interest of time, why she was pursuing the particular line of questioning. She responded that she intended to show that Sonsel was not lawfully discharging his duty at the time of the assault because he had not seen Evans commit a crime and he did not have an arrest warrant. The judge then asked the prosecutor if he was happy allowing the questions to continue, and, before he could answer, the judge told defense counsel to continue.

Evans contends that the trial judge had, in effect, informed the prosecutor that an objection against that line of questioning would be sustained. And, in fact, immediately after the bench conference, the prosecutor objected to a question on arrest procedure on the grounds of relevancy and the trial court sustained the objection. Evans also contends that the court erred in sustaining this objection. He suggests that Sonsel's answers to the unasked questions regarding arrest procedure would have demonstrated the illegality of the attempt to arrest Evans and thus they would have shown Sonsel to be the aggressor.

In order for a complaint concerning the exclusion of evidence to be considered by an appellate court, the record must show what the excluded testimony would have been. Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App.1984). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Id.

In her response to the relevancy objection, defense counsel stated only that Sonsel could not clearly identify Evans as the driver of the car and he only assumed Evans was the driver. Sonsel had already testified that he did not clearly see the driver of the vehicle which he pursued, so this evidence would have been redundant, as well as irrelevant under Gonzalez, 574 S.W.2d 135. Evans did not preserve any error on this issue. This point of error is overruled.

EVIDENCE OF VICTIM'S CHARACTER

Evans next contends that the trial court erred in excluding character evidence of the victim. Evidence of a pertinent character trait of the victim of the crime offered by the accused, or by the prosecution to rebut the same, may be admissible under TEX.R.CRIM.EVID. 404(a)(1). Opinion testimony and testimony as to a person's reputation are generally the only forms of evidence admissible to prove character, except when the character of a person is an essential element of a charge, claim, or defense, proof may then be made of specific instances of conduct, and, when character evidence has been admitted, evidence of specific instances of conduct is allowable in rebuttal. TEX.R.CRIM.EVID. 405.

Specifically, Evans sought to introduce four reports based on complaints by citizens that Sonsel had used excessive or unnecessary force, or had caused physical injury. Evans contends that these reports were admissible because they would have helped prove that Sonsel had aggressive tendencies and was the aggressor in the present case and Evans merely acted in self-defense. But these reports consist of recitations of specific instances of Sonsel's conduct and not opinion or reputation testimony. The State did not raise the issue of Sonsel's character and the justification theory of self-defense does not inquire into, as an essential element, the character of the victim. Thus, specific instances of Sonsel's conduct were not admissible to prove...