Sunday, March 18, 2007

The State presented evidence intentionally knowing his conduct is unlawful; not to mention ILLEGAL!

Section 39.03 provides in relevant part:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

4. The State presented evidence that appellant, during a routine traffic stop, physically assaulted Napoles and then arrested him without a warrant and without probable cause.

5. We will assume, without deciding, that appellant's claim could properly be raised for the first time on appeal. See Gonzales v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).

6. In his brief to this Court, appellant states that he "unequivocally concur[s] with the State's analysis of the allowable unit of prosecution. ... A person can properly be charged with multiple counts of official oppression against a single victim - for multiple acts." (Emphasis in original.)

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