Opinion
No. 05-16-00754-CR
03-10-2017
JOE NATHAN LOMAX, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 10 Dallas County, Texas
Trial Court Cause No. MA-1555700-L
MEMORANDUM OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Stoddart
A jury convicted Joe Nathan Lomax of assault involving family violence and the trial court sentenced him to 365 days in jail, probated for twenty-four months. In three issues, appellant argues the evidence is insufficient to support his conviction and the trial court violated his due process rights during punishment proceedings. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Appellant and Leamber Hicks had a daughter, as well as children from previous relationships, but were no longer romantically involved and did not live together when the assault occurred. On May 11, 2015, appellant and Hicks had an argument in the bedroom of Hicks's apartment while their children were in another room. Appellant began pushing and shoving Hicks even though she was holding their daughter. Hicks testified she placed the baby in a playpen and appellant then "started just pushing my forehead, trying to get me mad so I would push him. And he just kept saying, 'Hit me because I know you're angry with me, and I want you to hit me.'"
When appellant refused to leave Hicks's apartment, she threatened to call the police and she went outside and pretended to call 911. When she walked back inside "[h]e started punching me hard, and I was using my arm to block his punches. So I was blocking upward, and I was moving my arm down." She turned her body so appellant could not hit her face. Hicks testified appellant knowingly hit her at least ten times.
Hicks left the bedroom again and, when she returned, appellant was on the bed with a shot gun. Hicks called the police. She testified she believed she might die that night, although on cross-examination she also conceded she told the police that appellant had never used or threatened to use a weapon against her, had not threatened to kill her or her children, and she did not think he might try to kill her. Hicks clarified that when she was talking to the police she did not think appellant would try to kill her, but at the time of their fight, she was "scared anything could happen."
Photographs of Hicks taken by the police were admitted. Hicks's shirt is torn in the photographs and Hicks explained it was torn during the fight. There were marks on her arms, which she testified were from blocking appellant's fists, and her wrist and arm were swollen from blocking. She felt pain from being assaulted. Hicks's friend came to her apartment after the assault and noticed Hicks's shirt was torn and her left arm was swollen. The following day, Hicks went to the hospital. She told them her pain was a "ten" on a one-to-ten scale and her injuries were from an altercation with her boyfriend.
LAW & ANALYSIS
In his first issue, appellant asserts the evidence is insufficient to show he caused Hicks's injuries. We review a challenge to the sufficiency of the evidence on a criminal offense for which the State has the burden of proof under the single sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). Under this standard, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011) (footnotes omitted).
This standard accounts for the factfinder's duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Id. Direct and circumstantial evidence are treated equally: Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id.
Reversal on evidentiary sufficiency grounds is restricted to "the rare occurrence when a factfinder does not act rationally." Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); see Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014) (stating that a reviewing court should not act as a "thirteenth juror"). In other words, the appellate scales are weighted in favor of upholding a trial court's judgment of conviction. Winfrey v. State, 323 S.W.3d 875, 879 (Tex. Crim. App. 2010).
As applicable here, a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE § 22.01.
Hick testified appellant knowingly hit her at least ten times, she felt pain from being assaulted, and her wrist and arm were swollen. The jury saw pictures of Hicks taken after the altercation. Additionally, the jury heard testimony from Hicks's friend who saw her on May 11, 2015, and testified about the injuries and what Hicks told her happened that night. The police officer who arrived at Hicks's apartment testified he believed Hicks was knowingly, intentionally, or recklessly assaulted by another person.
Although appellant argues that statements in Hicks's cross-examination testimony are inconsistent with portions of her direct testimony, the jurors were responsible for considering and resolving any conflicts in the testimony. See Clayton, 235 S.W.3d at 778. Applying the appropriate standard of review and considering the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See id. We overrule appellant's first issue.
In his second and third issues, appellant asserts the trial court denied his due process rights by refusing to consider the full range of punishment and refusing to consider his claim of innocence in mitigation of punishment. In support of his arguments, appellant discusses numerous portions of the three-day punishment proceeding.
"Due process requires a neutral and detached hearing body or officer." Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Ex Parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); see also Brumit, 206 S.W.3d at 645. But "[a]bsent a clear showing of bias, a trial court's actions will be presumed to have been correct." Brumit, 206 S.W.3d at 645. Bias is not shown when (1) the trial court hears extensive evidence before assessing punishment, (2) the record contains explicit evidence that the trial court considered the full range of punishment, and (3) the trial court made no comments indicating consideration of less than the full range of punishment. See id.; see also Brown, 158 S.W.3d at 456.
Although our discussion of the punishment proceedings is lengthy, we consider it helpful to clarify the record and provide context to the arguments raised by appellant.
On the first day of the proceedings, the trial judge asked each side if it was ready to proceed and the State replied it was. The following exchange then occurred:
The Court: Is the Defense ready to proceed?Appellant was not present when the proceedings resumed after the recess, and no explanation was given on the record for his absence. The judge noted appellant's counsel was present and stated on the record he believed appellant understood when the punishment proceedings would resume. Proceedings continued in appellant's absence without objection. The State presented testimony from Hicks and then rested.
Mr. Lomax: No.
The Court: I'm sorry. Who said that?
Mr. Lomax: I want to take the stand. I want to tell my side of the story, sir. . . . I said this a year ago
The Court: Hold on. Hold on, hold on, hold on, please. I' m just asking if you're ready to proceed. Sounds like you're ready to proceed, like, you're ready to move forward in your case; is that right?
Mr. Lomax: I want to tell my side of the story.
The Court: I hear you, Mr. Lomax.
Mr. Lomax: I said this a year ago.
The Court: I hear what you're saying. Please hold on. I hear what you're saying. I'm just - - It sounds to me like you're ready to go and I'm going to take your answer as, yes, you are ready to proceed.
Mr. Lomax: Yes.
The Court: Does the State have any evidence it wishes to put on at this time?
[State's counsel]: The State is intending to call the complaining witness in this case who was here and we are gathering her.
The Court: You guys are killing me. Let's go off the record.
[Discussion off the record.]
[Recess taken.]
Punishment proceedings resumed the following day. Appellant was present and his counsel stated that appellant would testify. Before his testimony began, the trial judge informed appellant the purpose of the punishment hearing is not:
to talk about what you would have testified to if the jury was [sic] here . . . The purpose of this hearing is to give me any information you want me to know about in terms of sentencing. . . . If you want to provide evidence about . . . what happened on May 11, 2015, you can do that, but we'd have to do it at another hearing. You'd have to file a Motion for New Trial and I'd be perfectly happy to hear you out at that time. For the purpose of this hearing, you just need to give me any information you want me to know so that way I can set an appropriate sentence.After appellant went to the witness stand, but before he was sworn, appellant attempted to speak directly to the judge. The judge informed appellant that his lawyer would ask questions and appellant would answer. Appellant replied "No, I want to talk to you directly." The judge replied: "Mr. Lomax, I'm not going to say it again, sir. Follow my directions. I'm going to let [counsel] ask you questions. If he wants you to just make a statement, we'll get to that point, okay?" Appellant proceeded to testify. During appellant's testimony, the judge asked whether appellant was nervous, angry, or intoxicated because he was unable to follow instructions. Although appellant replied he was not intoxicated, the judge suspended the hearing and stated: "I'm going to go ahead and hold your bond insufficient. We're going to take you into custody and I'll bring you back in a couple of days and we'll see if we can get a calm understanding of what's going on today, okay?"
Appellant testified again when the hearing resumed five days later. He stated he did not agree with the jury's verdict and reasserted his innocence. He explained he was upset on the second day of the punishment proceedings because of his "financial issues." Although he is employed, he has custody of his children and pays child support. He testified it would be difficult for him to pay a fine, probation fees, or for classes. He stated he would like to be at home with his children. During closing statement, appellant's counsel told the trial court that appellant's "chief concern is to get out so he can make money, pay the child support, support his children and get out as soon as possible." Counsel indicated he believed the forty-eight days appellant already served should be sufficient. The State sought 365 days' incarceration probated for eighteen months with drug and alcohol testing.
Assessing the sentence, the judge stated:
[T]he jury having found you guilty and the Court having heard all the evidence and arguments of counsel on punishment, I'm going to go ahead and sentence you to 365 days in jail, but I'm going to probate that sentence for a period of 24 months. I will issue no fine.
Mr. Lomax, I appreciate your situation in terms of trying to support your kids. I'm taking you at your word that that's what's going on and that's why you need the money. I'm going to put you on probation because I think that in the end it will be better for you and your children in the long run. Although, it's not meant to be easy and it's not going to be easy. The intent is not to be easy, but I am going to make it as financially less stressful as I possibly can make it because I think the classes you're going to have to take are important . . .
. . . [Y]ou don't have enough days to cover a maximum jail sentence. . . . I don't want to ever have to impose a maximum jail sentence, but . . . the actions that were described during the trial and your history with the Court, I think a max sentence is where you would be looking at if I were looking at jail time.
What I'm trying to say is this. I wouldn't put you on probation if I didn't think you could do it. I think you can do it and I don't expect to ever have to sentence you to jail time.
Based on this record, appellant argues the trial court showed displeasure and became aggravated with appellant and refused to consider appellant's claims of innocence. The record does not support these assertions. The trial judge informed appellant that the purpose of a punishment hearing was to consider punishment evidence rather than evidence appellant could have offered during the guilt-innocence phase of his trial. The court told appellant that if he wanted to offer the latter, he needed to file a motion for new trial, and the court would be "perfectly happy to hear you out at that time." Appellant testified clearly during the third day of proceedings about his innocence and there is no evidence in the record the trial judge did not consider his statement. Even if the judge had refused to consider appellant's assertion of innocence, we would not find error. Once a jury finds a defendant guilty, exonerating evidence is not relevant to an assessment of punishment. See McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (discussing Nixon v. State, 572 S.W.2d 699 (Tex. Crim. App. [Panel Op.] 1978) ("Nixon can be understood to mean that, at the punishment stage of a criminal trial, evidence is not admissible for the purpose of relitigating the defendant's guilt."). While the judge did not permit appellant to speak at will, instead requiring him to testify by answering questions from his lawyer, the judge explained the process to appellant and informed appellant that if his lawyer wanted appellant to make a statement, then that could occur. Additionally, appellant acknowledged he was upset the first time he attempted to testify because of financial constraints he faces. While he denied he was intoxicated, the record shows appellant struggled to follow instructions and testify clearly during the second day of the proceedings.
As to the sentence imposed, although appellant asserts the trial court failed to consider the full range of punishment, the record again does not support his argument. The evidence shows appellant testified he desired to return home to his children as quickly as possible, a sentiment reiterated by appellant's counsel during closing remarks, and he could not pay a large fine. The trial judge stated he understood appellant's financial situation and he would not impose a fine. He further stated community supervision would allow appellant to continue working and be at home with his children. The judge concluded he did not expect to have to sentence appellant to jail time, which would mean appellant could remain with his children and work to financially support them.
Having reviewed the record, we conclude there is no showing of bias. See Ex Parte Brown, 158 S.W.3d at 456; see also Brumit, 206 S.W.3d at 645. Rather, the record shows the trial judge heard and considered the evidence before assessing punishment, considered punishment that would be beneficial to appellant and his family, and made no comments indicating the court considered anything less than the full range of punishment. See Ex Parte Brown, 158 S.W.3d at 456; see also Brown, 158 S.W.3d at 456. We overrule appellant's second and third issues.
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160754F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 10, Dallas County, Texas
Trial Court Cause No. MA-1555700-L.
Opinion delivered by Justice Stoddart. Justices Lang and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 10th day of March, 2017.