Opinion
Nos. 05-01-01222-CR, 05-01-01223-CR.
Opinion Issued January 6, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F00-72850-RL and F00-72867-RL. AFFIRMED.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
OPINION
A jury convicted Lenzell Brown of two charges of aggravated assault with a deadly weapon and assessed punishment at thirteen years in prison. In four points of error, he complains about the factual insufficiency of the evidence and charge error. We overrule all points of error and affirm the trial court's judgments. Appellant was married to Patricia Brown. In November 2000, the couple were estranged, and Patricia was living with her sister, Tina Holden. Appellant wanted to reconcile, but Patricia did not. Patricia and Tina were taking GED classes at their church. Appellant often would visit Patricia during class, but Patricia did not want to see him. One night, both Patricia and Tina were in class. Tina testified she saw appellant enter the church. He was wearing gloves and carrying a gun. Although his face was covered by a stocking or ski mask, Tina said she could tell it was appellant by his eyes and by a mole on the side of his face. Tina, who was "too scared" to run, stayed in her chair. Appellant shot her in the arm, and Tina ran from the classroom. Patricia was looking over her work when she heard a "bang." Patricia turned and saw appellant. He was wearing a stocking over his face, but Patricia recognized him from the way he was standing and his eyes. Appellant pointed a gun at her and fired. Patricia ducked and was not hit. Appellant then grabbed Patricia by her ponytail and beat her in the head with the gun. Patricia's two teen-age sons ran into the room, and appellant fled. Patricia and her sons ran to a store across the street, where they learned Tina had been shot. Steven King, who taught the GED class, also identified appellant as the man who came in the classroom, shot Tina, and then beat Patricia with a gun. Although appellant attempted to hide his face with a scarf and hood, King said he had no doubt it was appellant. King originally believed appellant shot at Patricia, but later realized it was noise made when a student knocked over a projector while running from the room. Tiffany Owens, a family friend, provided an alibi for appellant. She testified appellant was at his son's home at the time of the assaults. Owens was certain of the date because appellant's youngest daughter had been injured the day before. In his first point of error, appellant complains the evidence is factually insufficient to prove he was the person who attacked Patricia and Tina because there was no physical evidence to corroborate the witnesses' identification testimony and a defense witness testified appellant was somewhere else when the attacks occurred. In a factual sufficiency review, we review the evidence in support of and contrary to the verdict to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). While we are authorized to disagree with the fact finder's determination, any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 6. In these cases, three eyewitnesses identified appellant as the person who entered the church and attacked Patricia and Tina. Although appellant tried to hide his identity, these witnesses were unequivocal in their certainty that he was the assailant. Tina, appellant's sister-in-law, recognized appellant by his eyes and by a mole on his face. Patricia, appellant's estranged wife, recognized appellant by his eyes and by the way he was standing. The class instructor, who had seen appellant on previous occasions, said he had no doubt that the assailant was appellant. In contrast, appellant presented alibi evidence from a family friend, which the jury apparently rejected. We may disagree with a fact finder's determination only when the record indicates that such a step is necessary "to arrest the occurrence of a manifest injustice." Id. at 9. Reviewing all the evidence in this case, we conclude such a step is not warranted here. The evidence is factually sufficient. We overrule the first point of error. In his remaining points of error, appellant complains about the charge submitted to the jury. In particular, he complains the trial court reversibly erred by (1) failing to properly instruct the jury on the conduct elements applicable to the charged offense, (2) commenting on the weight of the evidence in an instruction, and (3) failing to instruct the jury on the burden of proof for extraneous offense evidence admitted at punishment. In reviewing a claim of jury charge error, this Court follows a two-step process. First, we decide whether error exists in the jury charge. If so, then we determine whether the error caused the defendant to suffer sufficient harm to require reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). If no objection is made at trial, as is the case here, the defendant can obtain reversal only if the error caused egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). Egregious harm consists of errors that affect the very basis of the case or deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). In making this determination, we examine the entire charge, the state of the evidence, including any contested issues, arguments of counsel, and any other relevant information. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App. 1995). We begin with appellant's complaint that the trial court failed to charge the jury correctly on the culpable mental states applicable to the offenses charged. In particular, appellant argues that the trial court defined the culpable mental states of intentionally, knowingly, and recklessly, but did not limit them to the appropriate conduct element. Aggravated assault by causing bodily injury is a "result of conduct" crime. See Sneed v. State, 803 S.W.2d 833, 835 fn. 2 (Tex.App.-Dallas 1991, pet. ref'd); see also Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App. 1994) (identifying the three "conduct elements" described in section 6.03 of the Texas Penal Code). The culpable mental state applies to causing the result rather than to engaging in the conduct. Sneed, 803 S.W.2d at 835 fn. 2. Thus, when the accused is charged with such a crime, the definitions in the charge concerning the applicable culpable mental states should be limited to the result of his conduct rather than the nature or the circumstances surrounding his conduct. Mendenhall v. State, 15 S.W.3d 560, 567 (Tex.App.-Waco 2000), rev'd on other grounds, 77 S.W.3d 815 (Tex.Crim.App. 2002). Aggravated assault by threat is a "nature of conduct" offense and has no required result. See Sneed, 803 S.W.2d at 835 fn. 2; Guzman v. State, 988 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1999, no pet.). The offense is satisfied if the accused intentionally or knowingly engaged in the prohibited conduct — threatening with imminent bodily injury, aggravated by making the threat with a deadly weapon. See Sneed, 803 S.W.2d at 835. fn. 2; Guzman, 988 S.W.2d at 887. Thus, the definitions in the charge concerning the applicable culpable mental states should be limited to the nature of the conduct, rather than result of conduct or circumstances surrounding the conduct. In each of the charges, the trial court did not limit the definitions. By failing to do so, the trial court erred. Cook, 884 S.W.2d at 491. After reviewing the charge as a whole, however, we conclude the error did not cause appellant egregious harm. Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious. Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999). With respect to the shooting of Tina Holden (assault by injury), appellant argues that because the charge did not limit the mental state to the applicable conduct element, the jury could have convicted him of shooting Tina "without making any finding that the shooting resulted in bodily injury or serious bodily injury." In the application paragraph, the jury was instructed it could convict appellant if it found, beyond a reasonable doubt, that he did (1) "intentionally or knowingly or recklessly cause bodily injury to Tina Holden . . . by shooting [Holden] with a firearm, and [appellant] did use or exhibit a deadly weapon, to wit: a firearm, during the commission of the assault" or (2) "intentionally or knowingly or recklessly cause serious bodily injury to another, namely, Tina Holden, . . . by shooting [Holden] with a firearm, a deadly weapon. . . ." Thus, contrary to appellant's argument otherwise, the requisite mental states (intentionally, knowingly, or recklessly) clearly modify the result of appellant's conduct, that is, causing bodily injury to Holden. With respect to the attack on Patricia Brown (assault by threat), appellant argues, in a conclusory fashion, that the jury could have "misapplied the conduct elements to the culpable mental states in reaching a verdict." In the application paragraph, the jury was instructed it could convict appellant if it found, beyond a reasonable doubt, that he did "intentionally or knowingly threaten Patricia Brown with imminent bodily injury, and [appellant] did use or exhibit a deadly weapon, to-wit: a firearm, during the commission of the assault. . . ." Again, the requisite mental states (intentionally and knowingly) clearly modify the nature of appellant's conduct (threatening imminent bodily injury to Brown). Because the application paragraphs sufficiently limited the culpable mental states to their relevant conduct element, we cannot say appellant was harmed, much less egregiously so. Moreover, intent was not an issue in these cases; identification was. We overrule the second point of error. Appellant next argues the trial court impermissibly commented on the weight of the evidence by instructing the jury that "[i]ntent may be inferred from acts done, words spoken, or both." He argues the instruction violates the holding in Browning v. State, 720 S.W.2d 504, 507 (Tex.Crim.App. 1986). This Court recently addressed whether this precise instruction was an impermissible comment on the weight of the evidence. See Brown v. State, No. 05-01-01326, slip op. at 14 (Tex.App.-Dallas, December 19, 2002, n.p.h.). After analyzing Browning and other cases, we concluded the instruction did not inform the jury that any specific acts or words could prove the requisite intent and thus was not a comment on the weight of the evidence. Id. We overrule the third point of error. Finally, appellant complains the trial court failed to instruct the jury that, before it could use extraneous offense evidence against him, it must first find beyond a reasonable doubt that appellant committed the offenses. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2003). As extraneous offense evidence, appellant points to two previous felony aggravated assault cases in which he received deferred adjudication probation. Initially, we note that two courts of appeals have recently held that the reasonable doubt instruction does not apply to evidence of a defendant's prior criminal record. See Willover v. State, 84 S.W.3d 751, 753 (Tex.App.-Houston [1st Dist.] 2002, pet. filed) (op. on remand); Sanders v. State, 69 S.W.3d 690, 692-94 (Tex. App-Texarkana 2002, pet. dism'd, untimely filed). Rather, only "other" extraneous crimes and bad acts must be shown beyond a reasonable doubt. Willover, 84 S.W.3d at 753; Sanders, 69 S.W.3d at 693. Article 37.07(3)(a)(1) provides in relevant part:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. . . .Tex. Code Crim. Proc. Ann. art. 37.07(3)(a)(1). As stated by the court in Sanders:
The language of the statute allows evidence of the prior criminal record of the defendant and any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt. The "reasonable doubt" language in the statute is limited to the "other evidence" portion of the statute. Thus, Article 37.07, § 3(a)(1) does not require the reasonable doubt language to be applied to the prior criminal record, and the cases under that statute that require a separate instruction on that type of evidence do not apply to this situation.Sanders, 69 S.W.3d at 693. We agree with the analysis provided in Sanders and likewise hold the statute does not require a reasonable doubt instruction on a defendant's prior criminal record. In this case, the State presented as evidence the orders placing appellant on felony deferred adjudication probation on two charges of aggravated assault with a deadly weapon and other documents related to the cases. Additionally, the State presented a stipulation signed by appellant acknowledging that he was the person placed on probation in each of those cases. This was not "other evidence" of extraneous crimes or bad acts; rather, this was evidence of appellant's prior criminal history. Consequently, appellant was not entitled to the reasonable doubt instruction and the trial court did not err by not including the instruction in the jury charge. Moreover, even if we were to conclude the statute were not so limited, we would not conclude appellant was egregiously harmed. First, appellant does not contend that, if a proper instruction had been given, the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses. Appellant stipulated that he was the person placed on probation on the two previous felony charges. See Fails v. State, 999 S.W.3d 144, 148 (Tex.App.-Dallas 1999, pet. ref'd) (defendant, who admitted pleading guilty to prior charge, not egregiously harmed by lack of reasonable doubt instruction), cert. denied, 532 U.S. 976 (2001). Second, the jury could have assessed punishment based solely on the facts of the instant offenses. Appellant went to a classroom, shot his sister-in-law, and beat his estranged wife with a gun. The record shows that the bullet that struck Tina remains lodged near her lungs; Patricia suffered a skull fracture as a result of the beating. Although he denies he committed the offenses, three eyewitnesses identified appellant as the assailant. Finally, the thirteen-year sentence is two years less than the minimum sought by the State and is within the range of punishment for aggravated assault. See Huizar v. State, 29 S.W.3d 249, 251 (Tex.App.-San Antonio 2000, pet. ref'd) (en banc) (op. on remand) (defendant not egregiously harmed by lack of reasonable doubt instruction when sentence was within range of punishment). Reviewing the record as a whole, we fail to see how appellant could have been denied a fair and impartial trial by the trial court's failure to provide a reasonable doubt instruction to jurors. We overrule the fourth point of error. We affirm the trial court's judgments.
At trial, appellant objected to the admission of the extraneous offense evidence on the ground the convictions were too remote in time. He specifically did not challenge that he was the person named in the documents.