Johnson v. State

Full title: STEPHANIE MIGNON JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 22, 2006

No. 05-04-00971-CR (Tex. App. Feb. 22, 2006)

Opinion

No. 05-04-00971-CR

Opinion Filed February 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-51399-HM. Affirmed.

Before Justices WHITTINGTON, FRANCIS, and LANG.

OPINION

Opinion By Justice FRANCIS.

In a joint trial, a jury convicted Stephanie Mignon Johnson and co-defendant Ronald C. Jones of murder. The jury assessed appellant's punishment at confinement for twenty years and Jones's punishment at confinement for seventy years. In six issues, appellant contends the evidence is legally and factually insufficient and the trial court erred in: (1) refusing to instruct the jury on causation; (2) denying her a severance; and (3) instructing the jury on good conduct time and voluntary intoxication. We affirm. In her first two issues, appellant contends the evidence was legally and factually insufficient to support the jury's verdict. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support a finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Under either review, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The trial evidence shows that appellant and Jones viciously beat the complainant, Joseph D. Smith, Jr., in front of numerous witnesses outside Rocafello's night club. As a result of the beating, Smith was unconscious, his head was severely swollen, he was not breathing, and he had no pulse. Paramedics were unable to revive Smith. He was pronounced dead several hours later. The medical examiner concluded that Smith died from multiple blunt force head injuries caused by forceful blows to his head, neck, forehead, and face. Rather than zeroing in on one injury, the medical examiner opined that the injuries combined to cause Smith's death. The medical examiner also opined that the injuries probably could not have been inflicted by a bare foot without injury to the foot. A trace evidence analyst testified that impressions on the complainant's head matched the stitching pattern on Jones's shoes. During trial, the State called five eyewitnesses to Smith's beating, and Jones testified in his own defense. Although the testimonies differ in some regards, and not all of the witnesses observed the entire series of events, the testimony was legally and factually sufficient to establish the following sequence of events: (1) appellant quarreled with an obviously intoxicated Smith outside the club; (2) Jones tried to break up the argument, but appellant refused to leave with him; (3) after Smith disparaged her, appellant removed her shoes and began striking him with either her hands or her shoes; (4) Jones joined appellant in striking Smith; (5) Smith and appellant fell to the ground together; and (6) Jones and appellant beat Smith to death by punching, kicking, and stomping him while he lay helplessly on the ground. Before departing the scene of the crime, Jones boasted to onlookers that he had shown Smith how it was done in his home state of Florida. One witness overheard Jones say that he did not need a gun because he could use his hands. The eyewitnesses further agreed that appellant and Jones were the aggressors in the altercation, and Smith either did not defend himself or took only defensive actions. None of the eyewitnesses recalled seeing Smith strike either appellant or Jones although one told the police that Smith had swung wildly at appellant once, and a second testified that Smith put up his fists when appellant suggested that they fight. Jones and appellant were arrested several hours after the offense. At the time of their arrests, Jones had just been treated for a broken hand and appellant had a bruise on the top of her foot. Jones painted himself as defending appellant after Smith straddled her on the ground and punched her in the jaw. Jones admitted striking Smith repeatedly, but he testified he kicked Smith only once while trying to free his leg from Smith's grasp. Jones denied having any intent to kill Smith, and he could not explain the extent of Smith's injuries. Jones took issue with the testimony of several witnesses that he had repeatedly ordered Smith to "go to sleep" while he struck Smith. Jones explained that his references to how things were done in Florida were intended to chastise the onlookers for not intervening to stop the fight. Appellant did not testify, but she called three witnesses who observed her in the hours between the offense and her arrest. The witnesses described her as having a red face, swollen jaw, and lacerations. Two witnesses recalled her saying that Smith had "sucker-punched" her. The charge authorized the jury to convict appellant as either a principal or a party to the offense. Appellant contends the evidence is legally and factually insufficient to convict her as a party because (1) the application paragraph in the charge did not require the jury to first find that Jones caused Smith's death, (2) there is insufficient evidence of a plan or agreement to assault Smith, and (3) there is no evidence showing she encouraged or aided Jones to commit the murder. Appellant contends the evidence is legally and factually insufficient to convict her as a principal because the evidence shows that Jones killed Smith. A person commits the offense of murder if the person intentionally or knowingly causes an individual's death or if the person intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes an individual's death. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). A person may be convicted as a party to offenses committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). The trial court may submit an instruction on the law of parties when the evidence supports both primary actor and party theories of criminal responsibility. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996) (op. on reh'g). Evidence is sufficient to support conviction as a party when the defendant is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Id. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to commit the offense. Id. Because the charge in this case allowed the jury to find appellant guilty acting either as a principal or as a party to the offense, we must uphold the verdict if the evidence supports either theory. Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005), petition for cert. filed, No. 05-8520 (U.S. Jan. 2, 2006). The trial court instructed the jury on the law of parties. Without objection from either defendant, the trial court charged the jury on the offense of murder as follows:

Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Stephanie Johnson, acting alone or as a party, on or about the 9th day of May, 2003, in the County of Dallas and State of Texas, did then and there knowingly or intentionally cause the death of Joseph Smith, Jr., an individual, by striking Joseph Smith, Jr. with defendant's hand, a deadly weapon, or by kicking Joseph Smith, Jr. with defendant's foot, a deadly weapon,

OR

did unlawfully then and there intend to cause serious bodily injury to Joseph Smith, Jr. and did then and there commit an act clearly dangerous to human life, to-wit: by striking Joseph Smith, Jr. with defendant's hand, a deadly weapon, or by kicking Joseph Smith, Jr. with defendant's foot, a deadly weapon, and did thereby cause the death of Joseph Smith, Jr., an individual, you will find the defendant guilty of the offense of murder, as charged in the indictment.

Appellant contends that before the evidence can be held sufficient to support the theory that she acted as a party to the offense, the charge must require the jury to first find that Jones murdered Smith, which it does not do. Appellant, however, raises this charge error issue within her challenges to the legal and factual sufficiency of the evidence. We measure the legal and factual sufficiency of the evidence not by the charge actually given, but rather by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Reaves v. State, 970 S.W.2d 111, 116 (Tex.App.-Dallas 1998, no pet.). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the offense being tried. Malik, 953 S.W.2d at 240. Because the evidence raises the issue of appellant's criminal responsibility as a party, we conclude that a hypothetically correct jury charge would authorize the jury to find that Jones murdered Smith with appellant's assistance. See Howard v. State, 966 S.W.2d 821, 824-25 (Tex.App.-Austin 1998, pet. ref'd) (reviewing court need not disregard law of parties in reviewing sufficiency of evidence even though trial court failed to expressly authorize defendant's conviction as party in application paragraph of charge). Thus, we cannot conclude appellant's conviction should be reversed on sufficiency grounds merely because of the wording of the charge. Regarding appellant's other contentions, the evidence shows appellant instigated the fight with Smith and, at the very least, aided and assisted Jones in murdering Smith. See Binyon v. State, 545 S.W.2d 448, 450-52 (Tex.Crim.App. 1976) (evidence legally sufficient to support murder conviction as party when defendant instigated barroom brawl during which defendant's companion murdered victim). Although no witness overheard Jones and appellant discuss assaulting Smith, their joint assault on him evinced a common design to commit the offense. See Ransom, 920 S.W.2d at 302. Moreover, because appellant and Jones assaulted Smith in tandem, the evidence is sufficient to show appellant acted as a co-principal in the offense. See Perry v. State, 464 S.W.2d 660, 661 (Tex.Crim.App. 1971) (evidence was legally sufficient to support murder conviction of defendant as co-principal when defendant held victim while companion beat him to death). Therefore, we conclude, under both principal and party theories of criminal responsibility, the evidence was both legally and factually sufficient to support the jury's verdict. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484. We overrule appellant's first and second issues. In her third issue, appellant contends the trial court erred in refusing to instruct the jury on concurrent causation. See Tex. Pen. Code Ann. § 6.04 (a) (Vernon 2003) (providing that one "is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."). Appellant contends the evidence shows that Jones's blows were clearly sufficient to kill Smith while her own blows were clearly insufficient, thus entitling her to an instruction on concurrent causation. Assuming, without deciding, that Jones killed Smith, the evidence shows appellant assisted Jones as a party and, therefore, is criminally responsible for his conduct. See Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2) (Vernon 2003). Jones's conduct as principal is imputed to appellant. See McKinney v. State, 177 S.W.3d 186, 202 (Tex.App.-Houston [1st Dist.] 2005, pet. granted). A party to an offense is not entitled to a concurrent causation instruction when the principal's conduct is the alleged concurrent cause. See Hanson v. State, 55 S.W.3d 681, 699-700 (Tex.App.-Austin 2001, pet. ref'd). Moreover, Jones's conduct was not clearly sufficient to cause Smith's death. The evidence shows appellant instigated the fight and Jones aided her. But for appellant's conduct, the offense would not have occurred. The medical examiner was unable to determine whose blows killed Smith. Several witnesses saw appellant cause Smith to fall to the ground. One witness testified to seeing both Jones and appellant kicking Smith in the head. We conclude appellant was not entitled to an instruction on concurrent causation. We overrule appellant's third issue. In her fourth issue, appellant contends the trial court erred in failing to sever her trial from Jones's trial. Before trial, appellant filed a motion for severance alleging among other grounds, that Jones planned to testify despite having been arrested for family violence. The trial court denied the motion. During trial, the State impeached Jones with two prior arrests for family violence, an arrest for driving without a license, and a conviction for unlawful possession of a firearm. Additionally, Jones inadvertently waived attorney-client privilege regarding a letter he had written to counsel about the offense. At that point, appellant's counsel orally moved for severance, but did not present any grounds or argument in support. The trial court denied appellant's oral motion. Although the State did not admit Jones's letter into evidence, the prosecutor quoted several passages from it and elicited Jones's explanations. In the letter, Jones wrote that "by me trying to keep everybody else cool, I lost my own." Jones explained that he had tried several times to separate appellant from the complainant. The State also asked Jones to explain passages stating that Jones's "intent was to give [Smith] what he wanted" and that "[i]t seems all of this was meant to happen. I felt it was his time." Appellant contends the trial court erred in not granting her a severance because Jones's family violence arrests and the letter were not admissible against her and there was no limiting instruction for the jury to consider the evidence only against Jones. Although appellant establishes no definitive prejudice, she speculates that the jury might have used the Jones impeachment evidence against her as well. The trial court must grant a severance if a defendant files a timely motion and presents evidence showing that a defendant has a previous admissible conviction or that a joint trial would be prejudicial to any defendant. See Tex. Code Crim. Proc. Ann. Art. 36.09 (Vernon 1981). In the absence of a statutory basis for severance, the trial court exercises discretion in determining whether to grant a severance. See Mulder v. State, 707 S.W.2d 908, 915 (Tex.Crim.App. 1986). An unsupported allegation of prejudice is insufficient to meet the movant's burden. See id. To show an abuse of discretion, the movant bears a heavy burden and must show clear prejudice. Peterson v. State, 961 S.W.2d 308, 310 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Although Jones's troubles with the law were disclosed before trial, appellant's pretrial motion to sever complained only of Jones's bad conduct rather than admissible convictions. The only "prejudice" appellant alleged was the possibility that the family violence arrest could be admitted into evidence "to rebut a claim of peaceful nature." Appellant was not involved in Jones's family violence matters. We conclude appellant's pretrial motion to sever did not establish a statutory basis for severance. See Tex. Code Crim. Proc. Ann. Art. 36.09. Thus, it was within the trial court's discretion to deny the motion. See Mulder, 707 S.W.2d at 915. Likewise, we conclude the trial court did not err in denying appellant's oral trial motion to sever. Appellant argued no grounds for severance in her oral trial motion. Because appellant offered no supporting evidence, her oral trial motion for severance preserved nothing for appeal. See Ransonette v. State, 550 S.W.2d 36, 41 (Tex.Crim.App. 1976); Hudson v. State, 794 S.W.2d 883, 885 (Tex.App.-Tyler 1990, no pet.). We overrule appellant's fourth issue. In her fifth issue, appellant contends that the trial court erroneously instructed the jury on sentence credit for good conduct time even though she was statutorily ineligible for such credit. See Tex. Gov't Code Ann. § 508.149(a)(2) (Vernon 2004); Luquis v. State, 72 S.W.3d 355, 362 (Tex.Crim.App. 2002). Despite appellant's ineligibility, the trial court did not err in delivering the mandatory instruction. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 4(a) (Vernon Supp. 2005); Luquis, 72 S.W.3d at 363. We overrule appellant's fifth issue. In her sixth issue, appellant contends the trial court erred in instructing the jury that voluntary intoxication does not constitute a defense to the commission of a crime. See Tex. Pen. Code Ann. § 8.04 (a), (d) (Vernon 2003). Because she did not raise an issue of voluntary intoxication, appellant contends, the trial court's instruction constituted a comment on the weight of the evidence and evinced judicial bias against her. The trial court does not err in instructing the jury on voluntary intoxication if evidence from any source might lead the jury to conclude that the defendant's intoxication somehow excused her conduct. See Taylor v. State, 885 S.W.3d 154, 158 (Tex.Crim.App. 1994). After noting that he was not trying to blame intoxication for his or appellant's actions, Jones testified that appellant was drinking alcohol in her apartment when he picked her up, she consumed two alcoholic beverages at Rocafello's, and she was "a little tipsy" when she confronted Smith. One eyewitness opined that appellant, Jones, and Smith all appeared to be drunk. Timothy Bland, observing appellant later that morning, thought she had been drinking, but she was not intoxicated at that time. We conclude that the evidence raised the issue of appellant's voluntary intoxication. See id. Moreover, although not evidence bearing upon whether to submit an instruction, we note that counsel's final argument did acknowledge the important role that drinking played in the offense. After describing alcohol as "the other culprit" in the offense, counsel later argued:

Sometimes when certain people drink alcohol, you know it makes them not very nice. You know other people want to go curl up in the corner and go to sleep. Other people just don't. They get a little belligerent. They start to think maybe they're bigger and meaner than they really are. They're [sic] judgment is affected about how they react to situations. And I submit to you the potential to this situation exists on any given night in any given city in any given club. It does happen. It's horrendous. But to call this thing murder, that's not right.

We overrule appellant's sixth issue. We affirm the trial court's judgment.