Ledesma v. State

¶1concurring and dissenting.

¶2I concur in the majority’s holding that the “agreed case” analysis relied upon by the Court of Appeals is improper. I also agree to that portion of the majority opinion which holds that the State must prove that a defendant knew the person requesting information was a peace officer in order to sustain a conviction under V.T.C.A. Penal Code, Sec. 38.02.

¶3I dissent to the majority opinion because the evidence is insufficient to show that appellants knew that the person who had stopped them and requested information was a peace officer. I cannot agree that such knowledge can be inferred from the portions of the stipulation relied on by the majority in determining sufficiency. The majority’s entire analysis of the sufficiency of the evidence on this point is as follows:

“A rational trier of fact would surely be warranted in inferring [that appellants knew the person who had stopped them was a peace officer] from the stipulation acknowledging a ‘lawful arrest’ (which is most often effected by a peace officer) and specifically referring to ‘another officer.’ ”

¶4The lawfulness of the stop is a different element of the offense, which appellants chose not to dispute. Furthermore, the lawfulness of a stop is determined objectively, after the fact, and a concession by appellants at trial that the stop was lawful is no evidence that they knew the person stopping them was a peace officer. The lawfulness of a stop does not depend on whether the person stopped knew he was being stopped by a peace officer. The stop in the instant case was lawful because appellants were committing an offense in the officer’s presence by blocking a public street during a protest. See Art. 14.01(b), V.A.C.C.P.

¶5The reference to “another officer” in the stipulation, when read in context, also does not supply the necessary inference. Appellants conceded at trial that the person who stopped them was “Officer Lasley” and that prior to the time one of the appellants “had been requested to give her name and address to Officer Lasley, she had given her name and address to another officer who was not the officer who arrested her.” The term “officer” used throughout the stipulation merely reflects identification after the fact, i.e., the person who stopped them is identified as “Officer Lasley” and “another officer” (a different person) had previously requested information.1 Thus it does not follow from the stipulation that “Officer Lasley” stopped appellants and that “another officer” had previously stopped one appellant, that appellants knew at the time they were stopped that the person stopping them was an officer. The stipulation merely reflects that appellants knew at trial that the person was “Officer Lasley” and identified him as such.

¶6*533The evidence is insufficient to sustain the convictions. I dissent.

¶8dissenting.

¶9In my judgment, the “agreed case” problem is knottier than any contemporaneous opinion has thus far indicated, and it needs to be addressed.

¶10Article Y, Sec. 25 is an obscure provision in our Texas Constitution that is often overlooked. It grants to the Supreme Court “power to make and establish rules of procedure not inconsistent with the laws of this State for the government of said court and the other courts of this State ...” Equally little regarded is an opinion of the Court respecting that provision: Sessions v. State, 81 Tex.Cr.R. 424, 197 S.W. 718 (1917). It has not been overruled, according to Shepard’s Texas Citations.

¶11The SessionsCourt read Section 25 to include the Court of Criminal Appeals within a governance of rules of procedure made by the Supreme Court of Texas, and it acknowledged that indeed the Supreme Court had done so on at least one prior occasion. It also noted that the Supreme Court had made rules for the district court “for the purpose of directing the manner of preparing transcripts for appeal to this court.” See, e.g., Ratcliff v. State, 29 Tex.App. 248, 15 S.W. 596 (1890): “The rules above cited are applicable to criminal as well as civil cases, and are for the government of appeals to this as well as to the supreme court.” Id., 597.

¶12Accordingly, the considered application of Rule 263 by the Austin Court of Appeals ought not now be rejected out of hand. That court is, after all, bound by rules established by the Supreme Court.

¶13All that aside, however, Article 40.09, V.A.C.C.P., Section 11, itself, provides for an “agreed statement” of “the facts proven” such that an appellate court may “determine whether there is error in the trial.” The Austin Court of Appeals has made that determination, and I am not persuaded that this is a case wherein it is appropriate to substitute our collective judgment for that of three judges of the court of appeals. See Wilson v. State, 654 S.W.2d 465, 470 (Tex.Cr.App.1983) (Clinton, J., dissenting).

¶14Therefore, I respectfully dissent.