Page 35 - TPA Journal November-December 2018

Indeed, it is more accurate to say that Rodriguez’s released a dog to capture and hold him. Escobar
intent did not “transfer” at all, because there was was bitten by the dog until fully handcuffed by the
no element beyond causing “simple” bodily injury police, even though he avers that he dropped the
that required any proof of intent. Whether subject knife and lay flat on the ground once discovered.
to a transferred-intent instruction or not, to be Because he claims he was trying to surrender,
“entitled” to a mistake-of-fact instruction, a Escobar contends that both the initial bite and the
defendant must always establish that, “through continued biting were excessive force in violation
mistake,” he “formed a reasonable belief about a of the Fourth Amendment. He brought those
matter of fact” such that “his mistaken belief claims, among others, under 42 U.S.C. § 1983.
negated the kind of culpability required for The district court dismissed the initial-bite claim
commission of the offense.” But for the exact on a Federal Rule of Civil Procedure 12(b)(6)
same reason as above, Rodriguez cannot make motion, then denied Officer Lance Montee
such a showing: The greater offense in this case summary judgment on a claim of qualified
(aggravated assault) does not require a culpable immunity (“QI”). Montee appeals the denial of
mental state as to the additional, aggravating QI; Escobar cross-appeals the dismissal of his
element (serious bodily injury), so any mistake initial-bite claim. Finding no Fourth Amendment
about the additional element would not negate an violation, we reverse the denial of qualified
elemental culpable mental state. immunity, dismiss the cross-appeal for lack of
jurisdiction, and remand.
In a prosecution for aggravated assault, the State
need only prove the defendant harbored a culpable Escobar assaulted his wife in a restaurant parking
mental state as to the underlying assault. lot, and then left her alone in a nearby retail lot.
Accordingly, even if Rodriguez reasonably After noticing police vehicles at his house, he fled
believed that his actions would cause only into the night. He ran through several neighbors’
“simple” bodily injury, his mistake about the yards, finally hiding in the backyard of a house a
severity of Francisco’s injuries did not negate any few blocks from his own. He remained there,
elemental mental state. A mistake-of-fact crouched under an awning near the backdoor, for
instruction on these grounds would have been about twenty minutes while the police searched
contrary to Section 8.02(a). for him, both on foot and in a helicopter. They
eventually located Escobar, and the helicopter
The court of appeals’ judgment is reversed, and circled the house while the police decided on a
the trial court’s judgment is affirmed. course of action.

Rodriguez v. State, No. PD-0439-16, Tex. Ct.
While the helicopter monitored Escobar, the
Crim. App., Jan. 10, 2018. police were informed that he had a knife.
Furthermore, they were told that Escobar’s
mother had called and said the police would have
USE OF FORCE, DOG BITE. to kill Escobar to catch him; he would not go
without a fight. Based on those facts, Montee—
Israel Escobar assaulted his wife and fled from the the K-9 officer in charge of the police dog
police with a knife. While chasing him, the police “Bullet”—decided not to give his usual warning
were informed—by Escobar’s mother—that they to the suspect that he would deploy the canine.
would have to kill him to get him. The police Instead, he threw Bullet over the fence surround-
eventually found Escobar in a backyard and ing the backyard and only then scaled the fence

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