Full Opinion (html_with_citations)

Opinion filed December 29, 2017




                                        In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-15-00090-CR
                                   __________

             THOMAS MICHAEL ROEMISCH, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 132nd District Court
                            Scurry County, Texas
                         Trial Court Cause No. 10165

                      MEMORANDUM OPINION
      The jury convicted Thomas Michael Roemisch of assault on a public servant,
and it assessed punishment at confinement for thirty years. Appellant brings two
issues. In his first issue, Appellant maintains that the trial court erred when it denied
Appellant’s motion to suppress a video recording of a jail hallway. In Appellant’s
second issue, he maintains that the trial court erred when it refused to give
instructions on the lesser included offenses of resisting transportation and
interference with public duties. We affirm.
      Appellant was an inmate at the Scurry County Jail. On the date of the alleged
offense, he was being kept in a “segregation cell.” Appellant had finished cleaning
his cell, and jailers Ky Gressett and Tommy Paske went to retrieve the cleaning
supplies from him. When they did so, Appellant walked out of his cell and refused
to go back in.
      Gressett and Paske explained to Appellant that he needed to return to his cell.
Although Appellant’s demeanor was “calm,” he repeatedly told Gressett and Paske
that “he wasn’t going back into that cell.” Appellant grew “more belligerent,” and
Paske called for the day-shift sergeant, Joe Lay, to assist him and Gressett.
      When Lay entered the “segregation hall,” he saw Gressett and Paske talking
to Appellant. Appellant seemed “very aggravated and pretty mad.” Lay tried to talk
to Appellant to “find out what the problem was.” Appellant began to act “very, very
aggressive” toward Lay.
      When Appellant kicked his shoes off, pulled his shirt off, and threw the shirt,
Lay realized that he and the jailers would need to go “hands on” to move Appellant
back into his cell. Lay and Paske admitted that the jailers initiated physical contact
with Appellant.
      Paske and Gressett grabbed Appellant’s arms.           Lay attempted to grab
Appellant’s lower extremities. Somehow, Appellant “got one of his arms loose” and
wrapped his arm and hand around Lay’s neck in a “headlock.” Appellant dragged
Lay “probably 14 to 15 feet down the hallway by [his] head while twisting and
choking [him].”
      Lay grabbed Appellant’s thumb and bent it back in an attempt to make
Appellant release him. “Obviously, that didn’t work, since [they] went all the way
down the hallway.” They fell to the ground; Appellant continued to hold Lay around
his head and neck. Lay was worried that Appellant was “going to break [his] neck.”


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      When Paske realized that Appellant had Lay in a headlock, he applied
pressure to points to make Appellant release; none of these worked. Lay was
“turning real red, and he looked bad.” Paske told Appellant to “let go” and “stop
resisting,” but “nothing was getting through.” Paske “form[ed] a knife with [his]
hand and shove[d] it under [Appellant’s] nose” in a “very rapid motion.” Appellant
finally released Lay
      Gressett and Paske called for additional backup as they continued to struggle
with Appellant. Jail Administrator Delwyn Davis, Chief Deputy Brian Martinez,
and Deputy Juan Rodriguez came to assist. Together, they were able to handcuff
Appellant and escort him back to his cell. Only after they secured Appellant did
they notice Lay leaning against a wall in the hallway.
      Chief Deputy Martinez assisted Lay to a seat in a nearby multipurpose area.
Lay was in “extreme pain in [his] shoulders, neck, and head area.” He was “having
a hard time catching his breath . . . . [H]is color was real red, his face and all.” “[I]t
was obvious that he was in distress.” Lay was escorted out of the jail in a wheelchair
and sent to the emergency room.
      At the hospital, Lay received an MRI and was diagnosed with an acute
cervical strain. He was prescribed pain medication and attended six physical therapy
appointments. At trial, Lay testified that he still experiences muscle strain, “tight
neck,” and muscle spasm.
      The entire incident was recorded on the jail’s video recording system. Prior
to trial, Appellant filed a motion to suppress the recording, arguing that it constituted
a violation of Appellant’s Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
      During the pretrial hearing, the State entered the recording as an exhibit and
played it for the trial court. Chief Deputy Martinez described the contents of the
recording, as well. He explained that the recording showed two hallways: one that


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led “out to the main hallway,” with “doors on [the] right and the last one on [the]
left” opening into separation cells, and a second hallway that led “from the pod
central . . . down toward the first entrance on the right,” which opened into a
separation cell. Although they were not “main hallways” in the jail, both hallways
were “accessible to all of the employees and inmates who are escorted in that area.”
      After reviewing the video, the trial court denied Appellant’s motion. The trial
court opined, “There is no expectation of privacy in a prison or county jail as
contemplated by this video, this motion, this trial. So motion is denied.” The trial
court made no findings of fact.
      In his first issue, Appellant argues that entry of this video recording was
harmful error justifying reversal of the judgment against him.          Specifically,
Appellant contends that the recording was made in violation of his Fourth
Amendment right to privacy. The State responds that Appellant lacked standing to
complain of the admission of the recording because he had no legitimate expectation
of privacy in the jail hallway.
      We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State,
221 S.W.3d 666, 673
 (Tex. Crim.
App. 2007); Guzman v. State,
955 S.W.2d 85, 89
 (Tex. Crim. App. 1997). When we
review the trial court’s decision, we do not engage in our own factual
review. Romero v. State,
800 S.W.2d 539, 543
 (Tex. Crim. App. 1990); Best v.
State,
118 S.W.3d 857, 861
 (Tex. App.—Fort Worth 2003, no pet.).              When
application-of-law-to-fact questions do not turn on the credibility and demeanor of
the witnesses, we review the trial court’s rulings on those questions de
novo. Amador,
221 S.W.3d at 673
; Estrada v. State,
154 S.W.3d 604, 607
 (Tex.
Crim. App. 2005); Johnson v. State,
68 S.W.3d 644
, 652–53 (Tex. Crim. App. 2002).
Therefore, in this case we review de novo whether the trial court erred when it


                                         4
admitted the video recording. See State v. Scheineman,
77 S.W.3d 810, 812
 (Tex.
Crim. App. 2002).
         Electronic surveillance constitutes a search and seizure if it violates a
justifiably relied-upon expectation of privacy. See Smith v. Maryland,
442 U.S. 735
,
740–41 (1979) (citing Katz v. United States,
389 U.S. 347
 (1967)). Therefore, a
person has standing to argue that a search was unreasonable only if (1) he has a
subjective expectation of privacy in the place searched and (2) society is prepared to
recognize that expectation as “reasonable” or “legitimate.” Id.; State v. Granville,
423 S.W.3d 399, 405
 (Tex. Crim. App. 2014) (citing Minnesota v. Olson,
495 U.S. 91
, 95–97 (1990); Kothe v. State,
152 S.W.3d 54, 59
 (Tex. Crim. App. 2004)).
Additionally, an inmate must overcome the already lowered expectation of privacy
that exists in a jail setting. See Scheineman,
77 S.W.3d at 813
 (“Loss of privacy is
an inherent incident of confinement.” (citing Hudson v. Palmer,
468 U.S. 517
, 525–
26 (1984))).
         In Hudson, the Supreme Court explained that “[d]etermining whether an
expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing
of interests.”
468 U.S. at 527
. In jail, an inmate’s interest in privacy must be
balanced against “the interest of society in the security of its penal institutions.”
Id.
         Consequently, Texas courts have refused to hold that a reasonable expectation
of privacy exists between codefendants speaking alone in a holding cell or between
codefendants speaking across cells. See, e.g., Scheineman,
77 S.W.3d at 813
; Ex
parte Graves,
853 S.W.2d 701, 706
 (Tex. App.—Houston [1st Dist.] 1993, pet.
ref’d). A hallway between inmates’ separation cells is indistinguishable from these
areas.
         To echo the Supreme Court, “it would be literally impossible to accomplish
. . . prison objectives,” such as internal security, if inmates retained a right of privacy


                                            5
in passageways throughout the jail. Hudson,
468 U.S. at 527
. Therefore, any
subjective expectation of privacy harbored by Appellant is not one that society is
prepared to recognize as reasonable. Appellant has no standing to challenge the
video recording. Appellant’s first issue is overruled.
      In his second issue, Appellant argues that the trial court erred when it denied
his request to submit to the jury the lesser included offenses of (1) resisting
transportation and (2) interference with public duty. We hold that Appellant was not
entitled to an instruction for either lesser offense.
      Courts apply a two-pronged test to determine whether a lesser included
offense must be included in the jury charge when requested. See, e.g., Hall v. State,
225 S.W.3d 524
, 535–36 (Tex. Crim. App. 2007); Rousseau v. State,
855 S.W.2d 666
, 672–73 (Tex. Crim. App. 1993). A charge on a lesser included offense is
required if (1) the lesser included offense is included within the proof necessary to
establish the charged offense and (2) there is some evidence that would permit a
rational jury to find that, if the accused is guilty, he is guilty of only the lesser
offense. Hall,
225 S.W.3d at 526, 535
; Rousseau, 855 S.W.2d at 672–73; Royster v.
State,
622 S.W.2d 442, 446
 (Tex. Crim. App. 1981); see TEX. CODE CRIM. PROC.
ANN. art. 37.09 (West 2006).
      The first prong presents “a question of law that does not depend on
the evidence presented at trial.” State v. Meru,
414 S.W.3d 159, 162
 (Tex. Crim.
App. 2013).         An    offense    is   a   lesser    included   offense of   another
offense under Article 37.09 if the indictment either (1) alleges all of the
elements of the lesser included offense or (2) alleges elements plus facts
from which all of the elements of the lesser included offense may be
deduced. Ex parte Watson,
306 S.W.3d 259, 273
 (Tex. Crim. App. 2009). We
resolve this prong by reviewing all of the elements and facts alleged in the charging


                                              6
document and comparing them to the elements of the lesser included
offense. Hall,
225 S.W.3d at 535
.
      In connection with the second prong of the inquiry, some evidence must exist
in the record that would permit a jury to rationally find that, if the accused is guilty,
he is guilty only of the lesser offense. Hall,
225 S.W.3d at 536
; Salinas v. State,
163 S.W.3d 734, 741
 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The
evidence must be evaluated in the context of the entire record. Moore v. State,
969 S.W.2d 4, 8
 (Tex. Crim. App. 1998). There must be some evidence from which a
rational jury could acquit an accused of the greater offense while convicting him of
the lesser included offense.
Id.
 The court may not consider whether the evidence is
credible, controverted, or in conflict with other evidence.
Id.
 Anything more than a
scintilla of evidence may be sufficient to entitle a defendant to a lesser
charge. Hall,
225 S.W.3d at 536
.
      The State argues that the trial court did not err because neither resisting
transportation nor interference with public duty is a lesser included offense of assault
on a public servant.
      In the indictment, the State alleged as follows:
      [Appellant] . . . did then and there intentionally, knowingly, or
      recklessly cause bodily injury to Joe Lay by grabbing and twisting his
      neck, and [Appellant] did then and there know that the said Joe Lay was
      then and there a public servant, to-wit: a jailer at the Scurry County Jail,
      and that the said Joe Lay was then and there lawfully discharging an
      official duty, to-wit: attempting to put [Appellant] in this cell.

      The elements of assault on a public servant are:
      (1)   A person
      (2)   Intentionally, knowingly, or recklessly
      (3)   Caused bodily injury to another and
      (4)   Knew that the person he assaulted was a public servant
      (5)   While the public servant was lawfully discharging an official duty.


                                           7
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2017). The elements
of resisting transportation are:
        (1) A person
        (2) Intentionally
        (3) Prevented or obstructed
        (4) A person whom he knew to be a peace officer or a person acting in a peace
            officer’s presence and at his direction
        (5) From effecting transportation of the actor or another
        (6) By using force against the peace officer or another.
Id. § 38.03(a). Finally, as relevant to this case, the elements of interference with
public duties are:
        (1)    A person
        (2)    With criminal negligence
        (3)    Interrupted, disrupted, impeded, or otherwise interfered with
        (4)    A peace officer
        (5)    While the peace officer was performing a duty or exercising
              authority imposed or granted by law.
Id. § 38.15(a)(1) (West 2016). The terms of the indictment, which allege that
Appellant “caused bodily injury to” Lay as he attempted to put Appellant in his cell,
could encompass the lesser included offense of resisting arrest or transportation,
which would require that the State prove he “used force” against Lay while
“transporting” Appellant.1 See Gumpert v. State,
48 S.W.3d 450, 453
 (Tex. App.—
Texarkana 2001, pet. ref’d); Cf. Brumbalow v. State,
432 S.W.3d 348, 351
 (Tex.
App.—Waco 2014, no pet.) (holding no error in refusing lesser-included-offense
instruction for resisting arrest when indictment charging assault on a public servant
alleged that the defendant only “threatened” a peace officer during an arrest). The
fact that Appellant “impeded” Lay’s attempt to perform “a duty or exercise[]

        1
         Appellant’s arguments rest on the contention that a jailer falls within the statutory definition of a
“peace officer.” For purposes of analysis, we assume, without so deciding, that a jailer may be a peace
officer.


                                                      8
authority imposed or granted by law,” namely transporting Appellant to his cell, is
also within the proof required by the terms of the indictment. Because the indictment
“alleges elements plus facts . . . from which all of the elements of the lesser-included
offense[s] may be deduced,” the first prong is satisfied for each offense. Ex parte
Watson,
306 S.W.3d 259, 273
 (Tex. Crim. App. 2009) (op. on reh’g).
      We must now consider whether evidence existed to allow the jury to find that,
if Appellant was guilty, he was guilty only of resisting transportation or interference
with public duties, and not assault. See Guzman v. State,
188 S.W.3d 185, 192
 (Tex.
Crim. App. 2006). The test is not whether the evidence of Appellant’s conduct was
“subject to different interpretations.” Lofton v. State,
45 S.W.3d 649, 652
 (Tex.
Crim. App. 2001). Rather, the evidence must establish that the lesser included
offense is a “valid, rational alternative to the charged offense.” Rice v. State,
333 S.W.3d 140, 145
 (Tex. Crim. App. 2011) (quoting Hall,
225 S.W.3d at 536
). The
evidence must be such that not only could the jury determine that Appellant either
(1) obstructed, by using force, Lay’s attempt to move him into the cell, or
(2) interfered with Lay’s exercise of authority, but also that, in the course of
committing either, he did not assault Lay. See Bullock v. State,
509 S.W.3d 921, 925
 (Tex. Crim. App. 2016).
      However, Lay testified that he was injured by Appellant’s use of force.
Appellant wrapped Lay in a headlock; as a result, Lay suffered an acute neck strain,
which required six physical therapy treatments and multiple doctor’s appointments.
This testimony was corroborated by Lay’s medical records, as well as witness
testimony that Lay was “red-faced,” was “out of breath,” and “did not look good.”
      There is evidence in the record that is “directly germane” to the fact that
Appellant harmed Lay. Skinner v. State,
956 S.W.2d 532, 543
 (Tex. Crim. App.
1997). The only evidence that Appellant did not harm Lay is Appellant’s own


                                           9
testimony that the man in the surveillance video was not him. This alone does not
constitute the requisite “scintilla of evidence” to entitle Appellant to the lesser-
included-offense instruction: “If a defendant either presents evidence that he
committed no offense or presents no evidence, and there is no evidence otherwise
showing he is guilty only of a lesser included offense, then a charge on a lesser
included offense is not required.” Bignall v. State,
887 S.W.2d 21, 24
 (Tex. Crim.
App. 1994).
      Therefore, neither resisting transportation nor interference with public duties
is a valid alternative to the offense of assault on a public servant. The trial court did
not err by refusing to give the requested instructions. We overrule Appellant’s
second issue.
      We affirm the judgment of the trial court.




                                                JIM R. WRIGHT
                                                CHIEF JUSTICE


December 29, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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