Sutton v. State

• Decision Date: 16 March 1977
• Docket Number: No. 52614,52614
• Parties: Leonard SUTTON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 697

548 S.W.2d 697

Leonard SUTTON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 52614.

Court of Criminal Appeals of Texas.

March 16, 1977.

Rehearing Denied April 13, 1977.

W. C. Kirkendall, Seguin, for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

Appellant was convicted by a jury for aggravated assault under V.T.C.A., Penal Code, Sec. 22.02(a)(2); the court assessed punishment at three years.

The sufficiency of the evidence is not challenged. The record reflects appellant was purchasing chicken at a fast food restaurant in Seguin on July 23, 1975, and that he began cursing at the assistant manager when he was told they could not change a $100 bill. Officer Aldana, a police officer in New Braunfels, was standing behind appellant at the time. Because Officer Aldana was not in uniform, he identified himself as a police officer and requested that appellant be more careful with his language. Appellant then cursed Officer Aldana and either slapped or pushed Aldana. Mrs. Aldana got out of the car and fired a shot in the air with Officer Aldana's service revolver. Officer Aldana took the gun from his wife, telling her to stay in the car, while appellant wrote down Aldana's license plate number. Officer Aldana asked the assistant manager to call the police and waited inside the restaurant until Officer Smith's patrol car arrived three minutes later. The instant offense arose out of the events immediately after Officer Smith's arrival. The evidence is undisputed that Officer Smith was a uniformed police officer responding to a disturbance call, that he was speaking with Officer Aldana as appellant approached him, and that appellant's arm connected with Officer Smith's face, breaking the officer's glasses and "causing a slight gash" in his forehead. Officer Smith and appellant "wrestled" and with the assistance of Officer Aldana and another Seguin police officer, appellant was subdued.

Appellant alleges the trial court erred in denying his timely requested instructions on self defense and resisting a lawful arrest, which appellant contends is a lesser included offense of aggravated assault on a peace officer.

Although appellant did not testify, he contends the issue of self defense was raised by the testimony of defense witnesses Perez and Ybarra. Witness Perez testified she saw appellant leaning against the police car, that he "raised his hand up", that the two officers thought he was going to swing at him so "they got him down on the ground and started hitting on him." Witness Ybarra testified as follows:

"A . . . That Policeman (Officer Smith) called Mr. Sutton and then he went over, you know, to where they were, and kind of like they wanted to handcuff him because he did his hands like that, and when he did his hands like that, the policeman and that other man started hitting him.

Q (BY DEFENSE COUNSEL): When Mr. Sutton put his hands up like this, sort of raised his hands, what happened next?

A When he did his hands like that, I guess the policeman thought he was going to hit him or something because that is when they started hitting him.

Q Was he hitting back?

A No, sir. Kind of, you know, trying to keep them away from hitting him."

The testimony of Officer Smith set forth in our discussion of appellant's second ground of error shows the officer put his hand on appellant's arm in an attempt to place appellant under arrest and, in response to this touching, appellant brought his arm up, striking Officer Smith in the face. Under V.T.C.A., Penal Code, Sec. 9.31(c), the use of force to resist arrest is justified if the peace officer uses or attempts to use greater force than necessary to make the arrest. The only evidence which shows the amount of force used to effect the arrest before appellant resisted is Officer Smith's testimony on cross examination as follows:

"Q But, you felt at this time that the best way to effect the arrest of Mr. Sutton was by your physically grabbing him and throwing him up against the car; is that right?

A No, sir. The move was not that physical. The move was to turn Mr. Sutton around.

Q Sir?

A The move was to turn Mr. Sutton around and place him up against the car as in a normal arrest."

We find this evidence insufficient to raise the issue of self defense under Sec. 9.31(c), supra, and the trial court properly denied appellant's instruction on the law of self defense. Cf. Rodriguez v. State, Tex.Cr.App., 544 S.W.2d 382.

Appellant's remaining ground of error urges resisting arrest under V.T.C.A., Penal Code, Sec. 38.03(a), is a lesser included offense of aggravated assault as proscribed by Sec. 22.02(a)(2), supra. Under Art. 37.09(1), V.A.C.C.P., an offense is a lesser included offense of the offense charged if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See Day v. State, Tex.Cr.App., 532 S.W.2d 302; Jones v. State, Tex.Cr.App., 532 S.W.2d 596; Hazel v. State, Tex.Cr.App., 534 S.W.2d 698.

The indictment charged appellant did (1) knowingly and intentionally (2) cause bodily injury (3) to Tommy Smith, a peace officer in the lawful discharge of official duty (4) when he knew or had been informed Tommy Smith was a peace officer. The elements of the offense of resisting arrest are a person (1) intentionally (2) prevents or obstructs (3) a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction (4) from effecting an arrest or search of the actor or another (5) by using force against the peace officer or another.

Evidence which establishes conduct directed toward a person known to the actor to be a peace officer while the officer is effecting an arrest would establish the officer was acting "in the lawful discharge of official duties"....