Williams v. State, 58270

• Decision Date: 24 October 1979
• Docket Number: No. 2,No. 58270,58270,2
• Citation: 588 S.W.2d 593
• Parties: Alfred WILLIAMS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 593

588 S.W.2d 593

Alfred WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 58270.

Court of Criminal Appeals of Texas, Panel No. 2.

Oct. 24, 1979.

Larry Warner, Amarillo, for appellant.

Jimmy F. Davis, Dist. Atty., Dimmitt, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for aggravated assault on a peace officer in which the jury assessed appellant's punishment at confinement in the Texas Department of Corrections for a term of seven years and six months.

Appellant presents two grounds of error for our consideration contending that the State failed to prove that the complaining witness was a duly constituted peace officer under the ambit of Article 6869, V.A.T.S. and further, that V.T.C.A. Penal Code, § 22.02(a)(2) denominating the offense of aggravated assault on a peace officer as a third degree felony, is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We overrule these contentions and, accordingly, affirm the judgment.

Appellant was taken into custody by Deputy Sheriff Granville Martin on the evening of July 17, 1976 after Martin observed him in an apparently intoxicated state. Martin placed appellant in his patrol car bearing the insignia of the Castro County Sheriff's Department for the ride from Hart to Dimmitt. En route, Martin testified, appellant became belligerent and began using a great deal of obscenity in the presence of Martin's wife, who was also riding in the vehicle. When Martin cautioned appellant to have some respect for his wife by not being profane, appellant began punching Martin as the latter was attempting to operate his vehicle. Appellant then let himself out of the patrol car (he was not handcuffed) and took flight. After stopping the patrol unit, Martin pursued appellant on foot for some distance, recounting that appellant yelled that the only way he (appellant) would stop would be if he was shot. Martin then discharged his service revolver, wounding appellant, and taking him into custody.

In his first ground of error, appellant contends that the State failed to adequately prove that the complaining witness, Deputy Sheriff Martin, was in fact a duly constituted peace officer. Specifically, appellant contends that the State's proof was insufficient compliance with Article 6869, V.A.T.S. ¹ in that 1. State's Exhibit 3, Martin's Deputation card does not contain the official oath, is not a subscription to the official oath by the purported deputy, and contains no certificate of an officer authorized to administer an oath to the effect that he had so administered an oath;

2. The Bond executed by Martin does not contain the official oath, is not a subscription to the official oath by the purported deputy and contains no certificate of an officer authorized to administer oaths to the effect that he had so administered an oath; and

3. Martin's Appointment and Oath were not recorded in the office of the County Clerk.

The record below evidences that Martin was a deputy sheriff on the night in question and had been employed in that capacity for over twenty years in Castro County. Martin testified that he was dressed in his deputy's uniform replete with badge and was driving a patrol vehicle with emergency lights and the insignia of the Castro County Sheriff's Department. Ms. Zonell Maples, the District/County Clerk for Castro County testified that Martin had filed a bond in her office as required by Article 6869, supra, and that the bond was signed by Martin and that the official oath of office was endorsed on that bond. ²

Under the facts and circumstances presented, we need not reach appellant's contention that Martin failed to comply with the letter and tenor of Article 6869, supra, as we believe that the evidence below clearly showed that Martin was a de facto deputy sheriff on the night in question as that term was defined in Weatherford v. State, 31 Tex.Cr.R. 530, 21 S.W. 251 (1893) from other sources:

A de facto officer is one who has the reputation of being the officer, and yet is not a good officer in point of law; in other words, the de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, as to take the oath, give a bond, or the like.

The trial court required the jury to find, beyond a reasonable doubt, that Martin was a deputy sheriff; it did, and the evidence is sufficient to support its finding. Burkhardt v. State, 83 Tex.Cr.R. 228, 202 S.W. 513, 514-515 (1918); see Broach v. Garth, 50 S.W. 594 (Tex.Civ.App.1899). Accordingly, the trial court did not err in overruling appellant's motion for an instructed verdict contending otherwise. Freeman v. State, 556 S.W.2d 287, 304 (Tex.Cr.App.1977). Appellant's first ground of error is overruled. ³

In his second ground of error, appellant contends that V.T.C.A. Penal Code, § 22.02(a)(2) denominating the offense of aggravated assault on a peace officer as a third degree felony is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The thrust of appellant's contention is that the statute does not advance a "compelling governmental interest" by increasing the range of punishment for an otherwise misdemeanor offense merely because the victim is a peace officer. We believe this contention is wholly without merit. A citizen has not been endowed with a constitutional right to assault anyone, much less a peace officer, so a "close scrutiny" review of the statute is not demanded. ⁴ We are satisfied that there is in fact a rational connection or nexus between the legislative goal of insuring safety of its peace officers and the means chosen to effectuate this end.

Insofar as the contention complains of unreasonable classification, the longstanding general constitutional rule is that a state, in exercise of its discretionary police power, may make...