Mitchell v. State
| Decision Date | 26 July 2013 |
| Docket Number | No. 05-12-00878-CR,No. 05-12-00877-CR,No. 05-12-00876-CR,05-12-00876-CR,05-12-00877-CR,05-12-00878-CR |
| Parties | DOUGLAS RAY MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Affirmed and Opinion Filed July 26, 2013.
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F11-56332-I, F11-56331-I, F11-71127-I
Before Justices FitzGerald, Francis, and Lewis
Opinion by Justice FitzGerald
A jury convicted appellant Douglas Ray Mitchell of evading arrest or detention and two offenses of harassment of a public servant. Appellant raises four issues on appeal. We affirm.
The only witnesses during the first phase of appellant's trial were several police officers and one deputy sheriff.
Dallas police officer Shane Owens testified as follows. On June 8, 2011, Owens was on duty until 11:00 p.m. At about 11:30 p.m., he was driving home from work through the Deep Ellum area of Dallas when he saw appellant standing next to a parking-lot pay box. Appellant was making a kind of stabbing motion while looking over his shoulders, which seemed suspicious to Owens. Owens pulled into the parking lot and could clearly see appellant stabbing something into the holes in the pay box. Owens got out of his car and said, "[H]ey, what are you doing?" He was wearing his full police uniform at the time. He also used his radio to report that someone was breaking into the pay box at his location. Appellant ran away, and Owens followed him in his car. Owens briefly lost appellant, then found him in a parking lot standing against a wall. Owens shined his bright lights on appellant, called in his location, and got out of his car. When he told appellant to step forward and lie on the ground, appellant cursed at him and ran at him. Owens took him to the ground and sat on top of him so that he could not move. Police officers Timothy Payovich and Leonard Garza, who were on bicycle patrol, then arrived on the scene. Owens stayed on appellant until they were able to handcuff appellant. A squad car pulled up, and Owens and Garza walked over to it. Owens then heard appellant "mouthing off, using curse words," and Garza and two other police officers went to assist Payovich. Owens did not participate in this activity, and he did not testify to any further involvement in the case.
Dallas police officer Leonard Garza testified as follows. He and officer Payovich responded to the call to assist Owens. Two female officers arrived at the scene soon after Garza and Payovich did. Payovich handled appellant, and Garza talked with Owens about what had happened. Then Payovich maced appellant, which Garza heard but did not see. Paramedics were called, and they treated appellant at the scene. Then Payovich and Garza escorted appellant to the squad car. Appellant was still belligerent and cursing. When Payovich attempted to fasten appellant's seat belt, appellant spat at Payovich, and some of the spittle got on Garza's arm aswell. When asked if "it was a little bit of spit," Garza answered, Payovich got "a lot" of spit on his face. When asked whether the spitting was an intentional act, Garza testified, "I would assume so."
Dallas police officer Timothy Payovich testified as follows. He confirmed that appellant had already been subdued when Payovich and Garza arrived at the scene. Payovich handcuffed appellant. Appellant was belligerent, kicking his feet and cursing at Payovich. Appellant began to spit, although not in Payovich's general direction at this time. Payovich told appellant not to spit, but he continued to do it. Payovich then sprayed appellant with a short burst of pepper spray, and appellant stopped kicking and spitting at that point. The paramedics arrived at the scene and treated appellant by washing his face off. Police sergeant Gorka arrived at the scene and told Payovich to put appellant in the back of the police car. Payovich and Garza escorted appellant to the police car. Garza helped appellant into the back seat on the driver's side of the car, while Payovich went to the passenger's side of the car and leaned into the car to fasten appellant's seat belt. Appellant was cursing at Payovich, and then he cleared his throat and spit at Payovich. The spittle covered the left side of Payovich's face.
Deputy sheriff Margaret Brown testified for the purpose of proving that appellant had previously been convicted of evading arrest. During Brown's testimony, the trial judge admitted into evidence documents concerning a 2009 conviction of Douglas Mitchell for evading arrest, including a certificate with a thumbprint. Brown testified that she took a fingerprint from appellant, compared it to the thumbprint associated with the 2009 conviction, and found that they were the same.
Appellant was charged in three indictments with evading arrest or detention after a prior conviction for the same offense, and two offenses of third-degree-felony harassment of a publicservant, namely officers Garza and Payovich. Each of the two harassment indictments included two enhancement paragraphs alleging that appellant had previously been convicted of assaulting a public servant and delivery of a controlled substance. Appellant pleaded not guilty in all three cases, and all three were tried simultaneously. The jury found appellant guilty in all three cases.
Appellant elected for the jury to assess punishment and pleaded not true to the two enhancement paragraphs in the harassment cases. The State called deputy sheriff Brown to testify during the punishment phase of the case in order to prove up the two enhancement paragraphs included in the harassment indictments One paragraph alleged a 2007 conviction for assault of a public servant, and the other alleged a 1993 conviction for delivery of a controlled substance. The evidence introduced through deputy Brown, however, showed that appellant's 1993 conviction was actually for possession of a controlled substance. The State also introduced evidence that appellant had four burglary convictions from 2001 and 2002. Appellant testified during the punishment phase of the trial that he had schizophrenia and that he had had schizophrenia all his life. He also testified that he felt "[c]razy" and that he was not taking any medication. On cross-examination, the State asked appellant whether he had been convicted of various crimes under various cause numbers, including many burglaries. He admitted some of the convictions and not others.
For the evading-arrest conviction, the jury assessed punishment at two years' confinement in a state jail and a $10,000 fine. With respect to the conviction for harassment of officer Garza, the jury found both enhancement paragraphs true and assessed punishment at twenty-five years' imprisonment in the penitentiary. With respect to the conviction for harassment of officer Payovich, the jury found both enhancement paragraphs true and assessed punishment at fifty years' imprisonment in the penitentiary.
The judge rendered judgments on the jury's verdicts. Appellant appealed.
In his first issue on appeal, appellant challenges the sufficiency of the evidence to support his conviction for harassing officer Garza. In his second issue on appeal, appellant challenges the sufficiency of the evidence to support his conviction for evading arrest or detention.
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Haywood v. State, 344 S.W.3d 454, 458-59 (Tex. App.—Dallas 2011, pet. ref'd). The jury is the sole judge of the credibility and weight to be attached to the testimony of witnesses. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
The elements of this offense as to officer Garza are that appellant, with the intent to assault, harass, or alarm, and with knowledge that officer Garza was a public servant, caused officer Garza to contact appellant's saliva, while officer Garza was lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.11(a)(2) (West 2011). Appellant argues specifically that there was no evidence that he intended to harass, assault, or alarm Garza, and that the only evidence of intent shows that he intended to spit on officer Payovich. The State argues that there was sufficient evidence of appellant's intent to harass, assault, or alarm Garza.2
We conclude that the evidence was sufficient to prove appellant's intent to harass, assault, or alarm Garza. There was evidence that appellant was belligerent towards officersOwens, Garza, and Payovich throughout most of his encounters with those officers. Appellant was spitting even before Garza and Payovich escorted him to the police car, stopping only temporarily when Payovich maced him. The evidence showed that Garza and Payovich cooperated in loading appellant into the back seat of the patrol car, with Garza on the driver's side and Payovich on the passenger's side. Evidence showed that appellant deliberately spat during this process, with Garza testifying that appellant "[dug] it from real deep." The spit got on the left side of Payovich's face and Garza's right arm. The jury could reasonably conclude that for this to happen, both officers had to be very close to appellant—basically leaning into the back seat where appellant was sitting—and that appellant intended to harass, assault, or alarm both of them when he spat on them. The jury could also reasonably conclude that appellant intended his saliva to contact both of the officers. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (...
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