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holding that appellant could not raise the complaint that the information was substantively defective for failing to allege with reasonable certainty the act or acts relied upon to constitute recklessness for the first time in a motion in arrest of judgment
Summary of this case from Jenson v. StateOpinion
No. 04-07-00214-CR
Delivered and Filed: February 27, 2008. DO NOT PUBLISH
Appealed from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 900542, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Appellant, Vincent Sullivan, ("Sullivan"), appeals his conviction for the Class A misdemeanor offense of assault causing bodily injury. We affirm the trial court's judgment.
Factual and Procedural History
On September 26, 2004, Sullivan, the owner and manager of a hardware store in San Antonio, was assisting a customer in his store. At the time, there were several other customers in need of assistance; however, the only other person working was an employee who was operating the cash register. The complainant, Delia Swiger, approached Sullivan from behind and proceeded to verbally confront him regarding the lack of service in the store. Sullivan responded angrily and told Swiger to leave his store. As Swiger walked out, she began throwing items of merchandise, including a large metal trash can, on the floor. According to several eye witnesses, when Sullivan heard the commotion, he went after Swiger and kicked her in the back, causing her to fall to the floor where he proceeded to repeatedly kick her. At trial, the only person, other than Sullivan, who testified that Sullivan did not kick Swiger was David Austin, the employee who was operating the cash register on the day in question; however, Austin admitted that he remained behind the cash register the entire time and that his visibility was impeded. Sullivan was found guilty by a jury and sentenced by the court to one year in jail probated for one year, 120 hours of community service, 24 hours of anger management counseling, and a $1500 fine. Sullivan appeals, raising the following issues:1. the trial court erred in failing to instruct the jury on the defense of justification by defense of property;
2. the information was defective in failing to allege with reasonable certainty the act or acts relied upon to constitute recklessness;
3. the trial court erred in excluding evidence of a prior criminal mischief charge against Swiger;
4. the trial court erred in refusing to allow Swiger to be cross-examined regarding accusations of spousal abuse she made in the past;
5. the prosecutor engaged in improper argument in asking the members of the jury to put themselves and their families in Swiger's shoes; and
6. the prosecutor made an improper closing argument in stating her own opinion and offering testimony as an expert witness as to why Swiger did not have bruises.
I. Alleged Charge Error
Sullivan first argues that the trial court committed error in failing to sua sponte instruct the jury on the defense of justification by defense of property because such defense was raised by the evidence.A. Standard of Review and Applicable Law
Article 36.14 of the Code of Criminal Procedure provides that "the judge shall, before the argument begins, deliver to the jury, . . . a written charge distinctly setting forth the law applicable to the case. . . . Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007) (emphasis added). In reviewing jury charge errors, Almanza sets out the "basic framework for analysis" with respect to errors that are both preserved and unpreserved. Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App. 1998) (citing Almanza v. State, 606 S.W.2d 157, 171 (Tex.Crim.App. 1985)). Pursuant to Almanza, a claimed jury charge error is analyzed based on whether the error is "fundamental" or "ordinary" error. Id. at 64. Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless. Almanza, 606 S.W.2d at 171. The court of criminal appeals has interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. Id. But when the charging error is not preserved, a greater degree of harm is required, and this standard of harm is described as fundamental or egregious harm. Id. Neither "harm" standard as construed by Almanza applies unless an appellate court first finds "error" in the jury charge. See id. at 174 (finding error in the court's charge to the jury begins-not ends-the inquiry). However, Article 36.14, which mandates that a trial court submit a charge setting forth the law "applicable to the case," imposes no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. Posey, 966 S.W.2d at 60-61. Therefore, Almanza does not apply to the omission in the jury charge of defensive issues that have not been properly preserved by a request or objection. Id. Thus, a defendant must make a specific request for the instruction or object to the instruction to preserve error on a defensive issue and a trial court does not err in failing to sua sponte instruct the jury on an unrequested defensive issue. Id.B. Discussion
It is undisputed in this case that Sullivan failed to both request an instruction on defense of property and object to the absence of this instruction in the jury charge; nevertheless, Sullivan contends that the trial judge erred in failing to sua sponte instruct the jury on this defensive issue. Sullivan maintains that "because of the manner in which the case was tried and the evidence which was brought out, the justification of defense of property was part of the `law applicable to the case.'" Specifically, Sullivan points to the following testimony during his cross-examination by the State's attorney:Q. Now the things that you were going over with your attorney there, Mr. Bruner, that sounds like you were trying to establish a defense to something. But before we go into your defense, I want to talk about the offense, the assault . . .
. . . . .
A. In other words, if you're saying that you had a reason for doing something wrong, wouldn't you have to admit that you did something wrong first?
Q. Okay. So you felt that you were justified in your actions that day with Delia?
A. Yes, I did.
Q. Okay. And you're saying that you had to protect your property; is that correct? Is it fair to say you did the things you did because you had to protect your property?
A. Yes. That was part of it.
Q. And you had to use force against another to protect your property; is that correct?
A. Define force.
Q. Well, what you did that day.
A. Yes. What I did that day I felt was necessary to protect my property.
Q. Did you feel that it was immediately necessary?
A. Yes.Sullivan contends that because this testimony raised the issue of defense of property, the Court's charge should have instructed the jury on these defenses as "the law applicable to the case." In Bennett v. State, 235 S.W.3d 241, 243 (Tex.Crim.App. 2007), the Court rejected a similar argument after the defendant, Bennett, appealed, claiming the trial court erred in failing to sua sponte submit instructions on defense of third person and defense of property. Although Bennett failed to object or submit instructions on defense of third person and defense of property, Bennett, like Sullivan in the present case, argued that the trial judge should have submitted these instructions sua sponte because evidence was presented that would have supported the submission of instructions as to these defenses. Id. However, unlike Sullivan, Bennett further contended that the trial judge was aware of her complaint because her attorney had objected to the court's failure to include a justification defense instruction in the jury charge and also, had requested that the court include self-defense "as it relates to [Bennett's] case." Bennett v. State, No. 05-05-01420-CR, 2006 WL 1828107, *5 (Tex.App.-Dallas Jul. 05, 2006), rev'd on other grounds, 235 S.W.3d 241 (Tex.Crim.App. 2007). Nevertheless, the Court reiterated that "[d]efensive instructions must be requested in order to be considered applicable law of the case requiring submission to the jury." Id. at 243 (citing Posey, 966 S.W.2d at 62). And notwithstanding Bennett's arguments that the trial judge should have been aware of her complaint because she objected to another separate defense or that "evidence at trial existed that would have supported the submission of an instruction" as to these defenses, the Court held that a trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. Id.; see also Hernandez v. State, 198 S.W.3d 257, 268-69 (Tex.App.-San Antonio 2006, pet. ref'd). Therefore, the Court found that because Bennett had failed to place the trial judge on notice that she wanted an instruction on defense of a third person, the trial judge did not err in failing to submit such an instruction. Id. Similarly, in the present case, Sullivan did not object or request an instruction and thus, failed to place the trial court on notice that he wanted an instruction on defense of property; therefore, the trial court did not err in failing to submit such an instruction sua sponte. Bennett, 235 S.W.3d at 243; Posey, 966 S.W.2d at 61. Sullivan's first issue is overruled.