Crawford v. State

1

Shawn Edward CRAWFORD, Appellant v. The STATE of Texas, Appellee

No. 04-22-00046-CR

Court of Appeals of Texas, Fourth District, San Antonio

March 29, 2023

From the 452nd Judicial District Court, Menard County, Texas Trial Court No. 2021-02557 Honorable Stephen Ellis, Judge Presiding ^[1]

Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa Justice Lori I. Valenzuela, Justice.

OPINION

Patricia O. Alvarez, Justice

Crawford appeals from a second-degree felony conviction for assault on a peace officer. He argues that his indictment only authorized a conviction and sentence for a third-degree felony assault on a public servant. We review the record to determine whether Crawford was properly charged with convicted of, and sentenced for assault on a peace officer.

Background

Crawford was charged with felony assault after attacking two deputies who tried to arrest him.

Deputies William Hagler and Michael Smith responded to Crawford's home after his wife called 911 to report a domestic dispute between them. When the deputies entered the front room of the residence, they saw Crawford sitting on the floor in a corner. Deputy Smith noted that Crawford appeared intoxicated and was rocking back and forth.

Crawford had two outstanding warrants for his arrest. Deputies Hagler and Smith announced to Crawford that they were there to arrest him for the warrants. Crawford became agitated and began yelling at the deputies that the warrants were fraudulent, that his charges had been dismissed, and that the FBI would arrest the deputies and the judge.

The deputies then approached Crawford slowly and attempted to handcuff him, but Crawford continued to argue with them about his warrants. He kicked at the deputies and pushed their hands away. When Deputy Hagler grabbed Crawford's arm, Crawford jumped up and pushed Deputy Hagler across the room. Deputy Smith tased Crawford, but the taser had no apparent effect.

Crawford ran to the back of the house, and the deputies chased him. Deputy Smith tased Crawford again, but the shock still had no apparent effect. Crawford then threw a ladder at Deputy Smith's chest and ran outside. Deputy Hagler tased Crawford again as he ran through the back door, but the tasing still showed no effect. Crawford ran to the front of the house where his pickup truck was parked.

The deputies intercepted Crawford at his truck as he jumped in and tried to start the engine. The deputies grabbed Crawford. Crawford kicked Deputy Hagler several times, including in the stomach and groin areas. Deputy Hagler caught Crawford's foot and pulled him out of his seat. Deputy Smith jumped on Crawford to hold him down and then called for backup.

Two backup deputies heard the radio call for assistance and responded to the scene. One of the deputies tried to talk to Crawford, but Crawford continued to insist there were no warrants for his arrest, and he continued to resist arrest. One deputy drew his firearm on Crawford while Crawford clung to the wheel of his truck. Finally, all four deputies used their weight against Crawford. Crawford was placed in handcuffs and leg shackles and then transported to jail.

Crawford was later charged with assaulting Deputies Hagler and Smith. At trial, the State went forward on one count only: the assault of Deputy Hagler. Crawford complained that the State was erroneously attempting to prosecute him for assaulting a peace officer, a second-degree felony. He argued that the indictment against him only charged him with assaulting a public servant, a third-degree felony. On this basis, he also objected to language in the jury charge that characterized his indicted offense as assaulting a peace officer. Crawford's objections were overruled. He was convicted and sentenced to twelve years in prison.

In this appeal, Crawford raises three issues: (1) the indictment authorized a conviction for assault on a public servant, a third-degree felony, and not assault on a peace officer, a second-degree felony; (2) the jury charge contained harmful error, but the jury's verdict form only authorized a conviction for assault on a public servant; and (3) his prison sentence exceeded the range for a third-degree felony and was illegal.

Indictment

A. Parties' Arguments

Regarding the indictment, Crawford argues that the State indicted him for assault on a public servant, and not assault on a peace officer, the charge he was convicted of and sentenced to.

The State argues that Crawford had sufficient notice from the indictment that he was being charged with assault on a peace officer. If he did not, the State argues Crawford waived his claim when he failed to object to the reading of the charge at voir dire.

B. Standard of Review

Construction of an indictment is a matter of law that we review de novo. Brooks v. State, 382 S.W.3d 601, 604 (Tex. App.-Amarillo 2012, pet. ref'd) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)).

C. Law

Where, as here, a defendant-appellant complains that he has been convicted of an offense that was not authorized by the language in the indictment, we examine the indictment to determine whether it alleged all the necessary elements to support the convicted offense and whether it did so in plain and intelligible words. See Teal v. State, 230 S.W.3d 172, 183‒84 (Tex Crim App 2007) (Johnson, J, concurring) (citing Sutton v. State, 899 S.W.2d 682, 686 (Tex. Crim. App. 1995) (Overstreet, J., dissenting)); Kirk v. State, 643 S.W.2d 190, 194 (Tex. App.-Austin 1982, pet. ref'd); accord Smith v. State, 873 S.W.2d 66, 71 (Tex. App.-Tyler 1993, pet. ref'd). If there is a variance in the caption, the caption does not govern. Adams v. State, 222 S.W.3d 37, 53 (Tex. App.-Austin 2005, pet. ref'd) (citing Stansbury v. State, 128 Tex.Crim.App. 570, 82 S.W.2d 962, 964 (1935)). But see Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009) (using the heading of a defective indictment to confirm that the district court had subject-matter jurisdiction over the convicted offense). Ultimately, "the critical determination is whether the trial court (and reviewing appellate courts) and the defendant can identify what penal-code provision is alleged." Enriquez v. State, No. 01-19-00423-CR, 2020 WL 4331404, at *3 (Tex. App.- Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.) (citing Kirkpatrick, 279 S.W.3d at 328); accord Teal, 230 S.W.3d at 180. "And it is not sufficient to say that the accused knew with what offense he was charged. The inquiry must be whether the charge, in writing, furnished that information in plain and intelligible language." Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000) (citing Benoit v. State, 561 S.W.2d 810, 813 (Tex. Crim. App. 1977)).

1. Assault on a Peace Officer

The convicted offense at issue in this case is assault on a peace officer, a second-degree felony. See TEX. PENAL CODE ANN. § 22.01(b‒2). The substantive elements are, in relevant part, as follows: 1) intentionally, knowingly, or recklessly, 2) cause injury, 3) to a peace officer, 4) that the accused knows is a peace officer, 5) while the peace officer is lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(b‒2); Carson v. State, No. 11-19-00373-CR, 2021 WL 6141128, at *2 (Tex. App.-Eastland Dec. 30, 2021, no pet.) (mem. op., not designated for publication); Kelly v. State, No. 11-19-00331-CR, 2021 WL 5115492, at *2 (Tex. App.-Eastland Nov. 4, 2021, no pet.) (mem. op., not designated for publication).

2. Assault on a Public Servant

The elements for assault on a public servant are the same, except they require the accused to know the victim is a public servant while the public servant is lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(b)(1); Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). Assault on a public servant is a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1); Hall, 158 S.W.3d at 472.

3. Invoking Statutory Language Under Texas Penal Code section 22.01

By definition, a peace officer is a public servant (though not vice versa). Compare TEX. PENAL CODE ANN. § 1.07(a)(36) and TEX. CODE CRIM. PROC. ANN. art. 2.12 with TEX. PENAL CODE ANN. § 1.07(a)(41); accord McIlvennia v. State, No. 03-14-00352-CR, 2016 WL 3361185, at *3 (Tex. App.-Austin June 10, 2016, pet. ref'd) (mem. op., not designated for publication). But more importantly, in the context of Texas Penal Code section 22.01, the terms "peace officer" and "public servant" invoke two separately defined and classified offenses. Compare TEX. PENAL CODE ANN. § 22.01(b)(1) with TEX. PENAL CODE ANN. § 22.01(b‒2). But cf. TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (classifying aggravated assaults against all public servants as first-degree felonies).

The Court of Criminal Appeals made a point in one case to correct language used by the appellate court and parties when referring to assault on a peace officer. See State v. Hatter, __ S.W.3d __, No. PD-0823-21, 2023 WL 152194, at *1 n.1 (Tex. Crim. App. Jan. 11, 2023). In Hatter, the appellate court and parties had labeled the offense as an assault on a public servant. See id. But the indictment alleged that the accused "cause[d] bodily injury to S. Latham, hereinafter called the Complainant, a peace officer, by kicking the complainant with her foot, and at the time of the assault the defendant knew the complainant was a peace officer lawfully discharging an official duty." Id. The Court of Criminal Appeals stated, "This language invokes assault on a peace officer, not assault on a public servant." Id.

4. Practical Considerations in Construing an Indictment

Construing an indictment requires us to make practical considerations not technical ones. Brooks, 382 S.W.3d at 605 (citing Oliver v....