Opinion
No. 05-08-00773-CR
Opinion issued July 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F07-00232-PN.
Before Justices BRIDGES, LANG, and LANG-MIERS.
OPINION
Following his plea of no contest, Ragenal Tyrone Compton was convicted of aggravated assault, enhanced by a prior felony robbery, and sentenced to eleven years' confinement. In four points of error, appellant argues the evidence was factually insufficient to support his conviction or disprove he acted in self defense, and the trial court abused its discretion by allowing the forensic pathologist to testify as to autopsy results and admitting the autopsy report. We affirm the trial court's judgment. Appellant and decedent were next door neighbors in an apartment complex in Dallas, Texas. Decedent and his wife, Arene Wright, moved into the complex in the summer of 2005. Appellant moved in next door in January 2006. On the day appellant was moving in, decedent offered to help move appellant's couch in return for five dollars. Since that time, the two men often met each other outside their apartments to smoke and talk. They argued on occasion, but generally, their relationship was friendly. At the time of his death, decedent was forty-seven years old, approximately five feet seven inches tall, and 149 pounds. At the time of the incident, appellant was twenty-eight years old, approximately five feet eight or nine inches tall, and about 175 pounds. Benita Bell-Chew moved to the complex in December 2005. She lived across the street from appellant and decedent with her four children. Bell-Chew was friendly with appellant and decedent. At trial, appellant, Wright, and Bell-Chew each testified about what happened on June 7, 2006. Although there are inconsistencies between the three versions, all three agreed appellant and decedent argued loudly outside the apartments throughout the day. Appellant testified the argument began when decedent knocked on appellant's door, asked for two dollars, and was turned away by appellant. Decedent went inside his apartment periodically but spent a large portion of the day outside insulting appellant. Appellant went in and out of his apartment throughout the day and actually left the complex at least three times that day. Each time appellant left his apartment, he was greeted with insults from decedent. Appellant testified decedent had bragged about having a third-degree black belt in Karate, guns in his possession, and two prior prison terms. Decedent knew about appellant's previous leg injury. Appellant testified on the day of the incident, decedent repeatedly threatened to kick appellant's leg. Appellant believed if decedent kicked his leg, appellant would be seriously injured and defenseless against any further attacks. Throughout the day, appellant avoided a physical confrontation with decedent. Appellant repeatedly told decedent he did not want to fight. Appellant testified if decedent had punched him, appellant would not have punched back. However, appellant testified that decedent spitting on him gave him good cause to defend himself. Around 8:00 p.m., appellant and decedent argued again on Bell-Chew's porch. Decedent spit on appellant's face, which appellant claimed indicated decedent had no respect for appellant and was about to inflict serious bodily injury on appellant. There is disputed testimony indicating decedent may have also pushed appellant and then assumed a fighting stance. In response, appellant punched decedent at least three or four times, and at least once after decedent had fallen to the ground. It is unclear whether the majority of the punches were thrown before or after the decedent fell. Decedent did not defend himself after the first punch. Paramedics took decedent to the hospital, where he was soon placed on life support. On June 9, after discussing the diagnosis with the doctor, decedent's family decided to take him off life support. The autopsy report indicated decedent's death was most likely caused by blunt force injuries to his head consistent with repeated punches and impacts with the pavement. During the initial investigation, police detectives took pictures of appellant's hands, which had injuries indicative of a recent fist fight. Appellant left the scene before paramedics or police arrived. Bell-Chew testified appellant found her later and asked her to write a statement for him. In the statement, Bell-Chew wrote decedent pushed appellant just before appellant punched decedent. However, Bell-Chew never mentioned a push any other time she recounted what happened that day. At trial, Bell-Chew testified she only included the push in the statement because appellant told her to include it, and she was afraid of him. Bell-Chew testified she never saw decedent push appellant. Dallas police senior corporal Robert Flick testified that, on October 15, 2005, nearly eight months before the incident in question, he and his partner saw appellant outside a McDonald's in downtown Dallas. Appellant was talking to a man who may have been a drug dealer. Appellant grabbed the man around the neck, choked him, and repeatedly punched him in the face. The officers approached the scene intending to stop appellant. When the officers tried to take appellant into custody, appellant pushed them away and ran down the street. The officers chased appellant to a ten-foot wrought-iron fence. Appellant climbed the fence in an effort to flee, but fell on the other side. The officers caught up to appellant on the other side of the fence. Appellant attempted to fend off the officers by swinging closed fists and kicking at them. The officers ordered appellant to put his hands behind his back or give his hands to the officers, but appellant would not comply. Frick's partner sprayed appellant with OC spray, but appellant continued to fight. Frick's partner then struck appellant with a collapsible baton, but appellant continued to fight. The officers then jumped on top of appellant and got one cuff on him. Appellant threw the officers off him and began using the loose cuff as a weapon. The officers were eventually able to get appellant under control, but appellant's leg was seriously injured during the incident. The officers called paramedics, who said appellant must have been on some sort of intoxicating substance to be able to work through the pain that he should have been suffering. Internal affairs investigated the case, and both officers were exonerated on every count. Appellant's leg injury was not likely caused by the batons. The injury likely occurred when appellant fell from the fence. On the day of the incident leading to this appeal, appellant's leg had not yet healed. Appellant was convicted of aggravated assault, and this appeal followed. In his first and second points of error, appellant argues the evidence was factually insufficient to support his aggravated assault conviction and to disprove he acted in self-defense. The legal effect of a no contest plea is the same as a plea of guilty. See Tex. Code Crim. Proc. Ann. Art. 27.02(5) (Vernon 2008). There is no right to a factual sufficiency review of the evidence to support a guilty plea. See O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.). When a defendant waives his right to a jury trial and pleads no contest, the State must introduce sufficient evidence to support the plea and establish the defendant's guilt. Tex. Code Crim. Proc. Ann. Art. 1.15 (Vernon 2008). The supporting evidence need not prove the defendant's guilt beyond a reasonable doubt. Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988). The evidence sufficiently supports a plea of no contest if it embraces every element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). A person commits an aggravated assault when he intentionally, knowingly, or recklessly causes serious bodily injury to another, or when he uses or exhibits a deadly weapon while committing an assault. Tex. Penal Code Ann. § 22.02(a) (Vernon 2010). Appellant, Bell-Chew, and Wright each testified appellant punched decedent repeatedly in the face and head, and decedent later died of his injuries. Appellant continued punching decedent after decedent had fallen to the ground. A deadly weapon is anything that can be used in a manner that would cause death or serious bodily injury. Tex. Penal Code Ann. § 1.07(17)(B) (Vernon 2010). A Dallas police officer and the medical examiner each testified appellant's fists and the pavement could be considered deadly weapons. Bodily injury is any physical pain or impairment, and serious bodily injury is any injury that creates a substantial risk of death or serious permanent disfigurement. Tex. Penal Code Ann. §§ 1.07(8), 1.07(46 (Vernon 2010). Decedent's physical injuries led to his hospitalization and death. Thus, the evidence in the record shows appellant intentionally, knowingly, or recklessly caused decedent to suffer serious bodily injury, and appellant used deadly weapons while causing bodily injury. The State satisfied its burden of introducing sufficient evidence to support the charge of aggravated assault. See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2010); Tex. Code Crim. Proc. Ann. Art. 1.15 (Vernon 2005). When a defendant enters a plea of no contest, and punishment is not absolutely fixed by law, the trial court will assess punishment where, as here, the defendant has waived his right to trial by jury. Tex. Code Crim. Proc. Ann. Art. 26.14 (Vernon 2009). Because appellant waived his right to trial by jury and entered a plea of no contest, a bifurcated trial was improper. See Arismendez v. State, 595 S.W.2d 535, 535 (Tex. Crim. App. 1980). Appellant argues the State did not overcome appellant's assertion of self defense. However, appellant's plea of no contest had the same legal effect as a plea of guilty. See Tex. Code Crim. Proc. Ann. Art. 27.02(5) (Vernon 2008). Additionally, the record does not indicate appellant ever withdrew his plea of no contest. Once a plea of no contest is entered, the sole function of the trial court is to determine punishment, not to ascertain guilt. Allen v. State, 474 S.W.2d 480, 482 (Tex. Crim. App. 1972). Despite a plea of no contest, a court has the power to sua sponte withdraw the plea and enter a plea of not guilty if evidence arises which might reasonably and fairly raise a question of fact regarding the defendant's guilt. Sullivan v. State, 573 S.W.2d 1, 1-2 (Tex. Crim. App. 1978). However, when a defendant waives his right to a jury trial and enters a plea of no contest, the court is not required to sua sponte withdraw the plea of no contest even if evidence raises a question of fact regarding the defendant's guilt. Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980). During trial, appellant did not object to the court's failure to withdraw his plea of no contest, and he does not raise this issue on appeal. Accordingly, we conclude the trial court did not abuse its discretion when it did not withdraw appellant's plea of no contest after hearing evidence which could reasonably raise a question of self defense. See Thomas, 599 S.W.2d at 824. We overrule appellant's first and second points of error. In his third and fourth points of error, appellant argues the trial court abused its discretion in admitting the medical examiner's testimony and autopsy report. Scientific, technical, or other specialized knowledge provided by expert testimony is admissible if the knowledge assists the factfinder in determining a fact issue. Tex. R. Evid. 702. The trial court's decision to allow expert testimony will not be disturbed on appeal absent a clear abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Further, the finder of fact is free to give whatever mitigating or aggravating weight to evidence it feels is appropriate under the circumstances. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). Expert testimony providing medical evidence must be sufficiently relevant and reliable to assist the factfinder in understanding the evidence. See Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007. To be relevant, evidence must be sufficiently related to the facts of the case to be helpful to the finder of fact. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Medical evidence can help the factfinder assess whether there was sufficient evidence of a serious bodily injury. See Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983); Payne v. State, 596 S.W.2d 911, 915 (Tex. Crim. App. 1980). In support of appellant's no contest plea to the offense of aggravated assault, the State offered the testimony of Dr. Jill Urban, the medical examiner who had performed the autopsy on decedent. Urban testified decedent had several scrapes over the center of his forehead, blue-purple eyelids, a scab on his upper lip, multiple broken bones in his face and jaw she could feel, and visible fractures on the back of his skull. The medical evidence provided by Urban was relevant in that it helped the court determine whether decedent had suffered serious bodily injury. See Morales, 32 S.W.3d at 865; Turner, 664 S.W.2d at 90; Payne, 596 S.W.2d at 915. The trial court was free to give the evidence whatever mitigating or aggravating weight it deemed appropriate. See Williams, 937 S.W.2d at 490. Therefore, the court did not abuse its discretion in admitting the testimony and report. See Wyatt, 23 S.W.3d at 27. Accordingly, we overrule appellant's third and fourth points of error. We affirm the trial court's judgment.
May 3, 1996, case number F95-02153, Criminal District Court No. 3, Dallas County.