Ryser v. State

• Decision Date: 25 November 2014
• Docket Number: No. 01–13–00634–CR.,01–13–00634–CR.
• Citation: 453 S.W.3d 17
• Parties: Drew RYSER, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

453 S.W.3d 17

Drew RYSER, Appellant

v.The STATE of Texas, Appellee.

No. 01–13–00634–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 25, 2014.

Discretionary Review Refused Mar. 25, 2015.

Nicole DeBorde, Bires, Schaffer & DeBorde, Houston, TX, for Appellant.

Devon Anderson, District Attorney—Harris County, Tommy LaFon, Houston, TX, for State.

Panel consists of Justices MASSENGALE, BROWN, and HUDDLE.

OPINION

HARVEY BROWN, Justice.

Houston Police Department Officer Drew Ryser's use of force while arresting a burglary suspect, C. Holley, led to a police department internal investigation, termination of Ryser's employment, and criminal charges against him. A jury convicted Ryser of the Class A misdemeanor offense of official oppression.¹ The trial court assessed punishment at six months' confinement but suspended the sentence and placed Ryser on community supervision for two years.

Ryser contends that there was insufficient evidence to support his conviction. In four other issues, he also contends that the trial court erred by (1) charging the jury on the law of parties and self-defense, (2) denying his venue motion, (3) refusing to dismiss a juror he describes as sleeping during trial, and (4) denying his motion for new trial based on jury misconduct during deliberations. Finally, in his sixth issue, Ryser argues that the cumulative effect of multiple errors requires reversal.

We affirm.

Background

Ryser was employed by the HPD and assigned to its divisional gang unit, which was assisting another unit, the tactical unit, with its investigation of some burglaries in the Wellington Park area of Houston. The tactical unit radioed the gang unit that a group of burglary suspects was driving toward its location. Ryser's team encountered the burglary suspects on a nearby street. Two of the suspects, including 15–year–old Holley, jumped from their vehicle and began to run. All four of the suspects were caught and arrested.

The arrest report prepared by Sergeant H. Sanchez states that the burglary suspects resisted arrest by kicking and using closed fists. The report does not state that the police officers used force during the arrest or that they damaged any property during the encounter. No supplemental report was filed by any of the other officers involved in the arrest, including Ryser.

Sometime later, an employee at a local business noticed damage to a fence along the edge of the property. She reviewed surveillance video to determine the cause of the damage and saw that a police vehicle had struck the fence. The video further showed that, just before the vehicle struck the fence, it collided with a person running along the fence line and knocked him to the ground. On the videotape, which was admitted into evidence and played at Ryser's trial, the suspect, Holley, is seen lying on the ground, not moving, with his hands near his head. A group of officers then surround him and begin kicking and striking him. Within minutes, the suspect is handcuffed and the officers disperse.

The business owner gave the videotape to the police department, and an internal investigation was begun. A local community activist, Quanell X, obtained a copy of the videotape and released it to a local television station. It aired multiple times, which led to news articles, town meetings, and a news conference by then District Attorney Pat Lykos, Houston Mayor Anise Parker, and Houston Chief of Police C. McClelland. At the news conference, the city officials announced that Ryser and several other officers who participated in Holley's arrest were being terminated from employment with HPD and charged with a crime due to their use of force against Holley. A number of other persons in Harris County also made public remarks regarding the incident depicted in the videotape.

The officers jointly moved for a change of venue based on the negative publicity from the airing of the videotape, the statements made at the news conference, and other media coverage related to the arrest. The trial court heard from 13 witnesses, including Quanell X, the mayor, and the police chief. While Quanell X, the mayor, and the police chief all testified that the officers could receive a fair trial in Houston, defense attorneys called as witnesses by the defendant-officers testified that they could not. The trial court denied the motion, and the officers were tried separately in Houston.

At trial, Ryser admitted that he struck Holley in the head and performed four “knee strikes” on Holley's shoulder. He gave two justifications for his use of force: (1) to obtain Holley's compliance with another officer's verbal commands and (2) to gain control over Holley's hands because Ryser believed that Holley had a gun in his waistband and might try to access it during the struggle.

A senior police officer, T. Jefferson, testified that the use of force displayed on the video is not consistent with the methods taught by HPD. Police Chief McClelland agreed that the officers violated department procedures. He described the officers' actions as “an egregious use of force” that “made me sick to my stomach.”

The jury found Ryser guilty of the offense of official oppression. The trial court assessed punishment at six months' confinement but suspended the sentence and placed Ryser on two years' community supervision. Ryser timely appealed.

Insufficient Evidence

In his fifth issue, Ryser asserts that there was insufficient evidence to support his conviction for official oppression.

A. Standard of review

We review Ryser's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010). Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19, 99 S.Ct. at 2788–89 ; Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). Evidence is insufficient under four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; or (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 & n. 11, 320, 99 S.Ct. at 2786, 2788–89 & n. 11 ; Laster, 275 S.W.3d at 518 ; Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). We consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from that evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given the witnesses' testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981) ; Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). “[R]econciliation of conflicts in the evidence is within the exclusive province of the jury.” Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000) (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986) ). It may choose to believe or disbelieve any part of any witness's testimony. See Davis v. State, 177 S.W.3d 355, 358 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

Thus, the Jackson standard defers to the factfinder to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from “basic facts to ultimate facts.” Jackson, 443 U.S. at 318–19, 99 S.Ct. at 2788–89 ; Clayton, 235 S.W.3d at 778. An appellate court presumes the factfinder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. If an appellate court finds the evidence insufficient under this standard—meaning that no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt—it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) ; Jackson, 443 U.S. at 317–19, 99 S.Ct. at 2788–89.

B. There is legally sufficient evidence of all elements of offense

Ryser contends that his conviction must be reversed because there was legally insufficient evidence that he intended to assault Holley when he used force against him.

A person commits the offense of official oppression if he is a “public servant acting under the color of his office or employment” and “intentionally subjects another to mistreatment ... that he knows is unlawful.” Tex. Penal Code Ann. § 39.03(a)(1) (West Supp.2014).

Mistreatment is not defined by statute. However, the indictment and jury charge listed specific acts that the State asserted were acts of mistreatment by Ryser against Holley, including that Ryser kneed him, kicked him, struck him with his hand, or pushed his head with his hand. Based on those descriptions, for this Court to affirm the judgment, there must be legally sufficient evidence that Ryser intentionally mistreated Holley—by kneeing him, kicking him, striking him with his hand, or pushing his head with his hand—with knowledge that doing so was unlawful. See id. § 39.03(a)(1) ; State v. Edmond, 933 S.W.2d 120, 127 (Tex.Crim.App.1996) (requiring that defendant know that his conduct is unlawful).

“Unlawful” means “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.” Tex. Penal Code Ann. § 1.07(a)(48) (West 2011). Therefore, there must be legally sufficient evidence that Ryser knew his mistreatment was criminal or tortious or that it...