Hoitt v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before Cornelius
• Citation: Hoitt v. State, 28 S.W.3d 162 (Tex. App. 2000)
• Decision Date: 29 August 2000
• Docket Number: No. 06-99-00138-CR,06-99-00138-CR
• Parties: (Tex.App.-Texarkana 2000) BRYAN ROLAND HOITT, Appellant v. THE STATE OF TEXAS, Appellee

Page 162

28 S.W.3d 162 (Tex.App.-Texarkana 2000)

BRYAN ROLAND HOITT, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00138-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted August 28, 2000

Decided August 29, 2000

On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 12,292

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Justice Ross

Bryan Hoitt appeals his conviction for assault on a public servant, enhanced by a prior felony conviction to a second degree felony.¹ He entered a plea of not guilty, but was found guilty by the jury. At the punishment phase, he pled true to the enhancement paragraph of the indictment, and the jury then assessed his punishment at five years' confinement. The court sentenced him in accordance with the jury's verdict, but "[t]o be served consecutively after sentence in Cause No. 12,256."

The record reveals that late one evening Hoitt broke into the home of Sidney Pool, knocked Pool down, demanded "sweet milk," carried him outside, and sat on top of him while he demanded keys to a pickup truck. Pool's brother Moody heard the commotion from next door and came to Sidney's aid. Moody was able to get Hoitt off of his brother, and Hoitt fled toward a neighboring home. That home belonged to Yevon Meador, who awoke to hear a man in her carport screaming for the keys to her pickup truck. Meador called 9-1-1, and Deputy Sheriff Larry Fortson and City of Gilmer police officer Matt Alford responded to the call. The location to which they were dispatched was outside the city limits of Gilmer.

Fortson and Alford testified that when they arrived at Meador's residence, they saw Hoitt standing in the carport. The officers confronted Hoitt and told him he was under arrest. A struggle ensued in which Hoitt broke away, jumped a nearby fence, and ran into a pasture. The officers persuaded Hoitt to return, but when they again tried to subdue him, he broke away and returned to the pasture. Eventually, the officers cornered Hoitt in the carport and were able to place him in custody. Alford testified that during one of the altercations, Hoitt hit him in the face and kicked him, and that he also received abrasions on his hands and fingers. It was because of these injuries suffered by Alford that Hoitt was charged with aggravated assault on a public servant.

In his first point of error, Hoitt contends that Alford was not a public servant because he was outside his jurisdiction, the City of Gilmer. To constitute an assault on a public servant, the actor must (1) know the person is a public servant, and (2) assault the person while he or she is lawfully discharging an official duty. Tex. Pen. Code Ann. § 22.01(b)(1) (Vernon Supp. 2000). The actor is presumed to know the person is a public servant if the person is wearing a distinctive uniform or badge indicating the person's employment as a public servant. Tex. Pen. Code Ann. § 22.01(d) (Vernon Supp. 2000).

Tex. Pen. Code Ann. § 1.07(41)(A) (Vernon 1994), provides:

(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.

A municipal police officer is a public servant within the meaning of the Penal Code. McCoy v. State, 932 S.W.2d 720, 723 (Tex. App.Fort Worth 1996, writ ref'd). Hoitt contends that McCoy is distinguishable because the police officer in that case was acting within the limits of his jurisdiction.

The State contends that a city police officer has jurisdiction to make warrantless arrests throughout the county in which the city is located. See Angel v. State, 740 S.W.2d 727, 733 (Tex. Crim. App. 1987); see also Perkins v. State, 812 S.W.2d 326, 327 (Tex. Crim. App. 1991); Thomas v. State, 864 S.W.2d 193, 195-96 (Tex. App.Texarkana 1993, pet. ref'd). However, the applicable statute has been changed. See Yeager v. State, 23 S.W.3d 566, 571, n.3 (Tex.App.Waco 2000, no pet. h.); Preston v. State, 983 S.W.2d 24, 26 (Tex. App.Tyler 1998, no pet.).

The State also contends that under Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon Supp. 2000), which gives peace officers who are outside their jurisdiction authority to arrest without a warrant a person who commits a felony offense in their presence, Alford had authority to arrest Hoitt when Hoitt assaulted Fortson. We agree.

Fortson testified that he approached Hoitt in Meador's carport and told him he was under arrest. He testified that he then reached for Hoitt, who tried to grab him. Fortson testified that he feared Hoitt was reaching for Fortson's gun, so he pushed Hoitt back and sprayed him with pepper spray. Hoitt then charged Fortson and knocked him to the ground.

As a witness to these events, Alford had authority under Article 14.03 to arrest Hoitt even though Alford was outside the Gilmer city limits. We overrule Hoitt's first point of error.

In his second point of error, Hoitt contends that there is legally and factually insufficient evidence to show that Alford was lawfully attempting to arrest him. In reviewing the legal sufficiency of the evidence, we look to see whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996). We must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

In reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution," 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, 129 (Tex. Crim. App. 1996); Hines v. State, 978 S.W.2d 169, 172 (Tex. App.-Texarkana 1998, no pet.). If we find the evidence factually insufficient, we reverse and remand the cause for a new trial. Clewis, 922 S.W.2d at 135; Hines, 978 S.W.2d at 173.

We may not reweigh the evidence and set aside the jury verdict merely because we feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135; Hines, 978 S.W.2d at 173. Additionally when there is conflicting evidence, the fact finder's verdict on such matters is generally regarded as conclusive. Hines, 978 S.W.2d at 173. As the Texas Court of Criminal Appeals commented recently in Johnson v. State, 23 S.W.3d 1, 5 (Tex.Crim.App. 2000):

[T]he reviewing court must always remain cognizant of the fact finder's role and unique position, a position that the reviewing court is unable to occupy. The authority granted in Clewis to disagree with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence.

The indictment charged Hoitt with assaulting Alford while Alford was "lawfully exercising an official duty; to wit: attempting to arrest [Hoitt]." The jury was charged accordingly. Hoitt contends that, therefore, "the crucial question is whether [Alford] was lawful in his attempt to arrest" him.

We disagree that deciding whether Alford was conducting a lawful arrest when Hoitt assaulted him is necessary to determining whether Alford was "lawfully discharging an official duty" as the assault of a public servant statute requires. It is enough that Alford was present on the scene pursuant to his lawful duty to respond to citizens' calls. Nevertheless the indictment alleged and the jury was charged to find Hoitt guilty if it believed that Alford was "lawfully exercising an official duty; to wit: attempting to arrest [Hoitt]."

Allegations in an indictment that are not essential to constitute the offense are treated as mere surplusage and do not need to be proven by the State. Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990); Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975). An exception to this rule is that the State must prove an unnecessary fact alleged in an indictment when the fact describes an essential element of the offense. Whetstone, 786 S.W.2d at 364; Burrell, 526 S.W.2d at 802.

The Texas Court of Criminal Appeals has also held that sufficiency of the evidence must be measured against a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which Hoitt was tried. Id.

Two courts of appeals have split over whether the Malik requirement that sufficiency of the evidence be measured against a hypothetically correct jury charge overrules the Burrell requirement that the State prove an unnecessary fact alleged in the indictment that describes an essential element of the offense. Phelps v. State, 999 S.W.2d 512, 518 (Tex. App.Eastland 1999, no pet.), held that Malik overruled Burrell and its progeny. Leal v. State, 975 S.W.2d 636, 640 (Tex. App.San Antonio 1998, pet. ref'd), held that there was factually insufficient evidence that the defendant committed theft without the effective consent of the owner, namely, by deception. The court held that a hypothetically correct jury charge would have included the "by deception" language, even though it was...