Brown v. State

Full title: MICHAEL WAYNE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jun 23, 2011

No. 05-10-00328-CR (Tex. App. Jun. 23, 2011)

Opinion

No. 05-10-00328-CR

Opinion June 23, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F08-55551-HL.

Before Justices RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

A jury convicted appellant Michael Wayne Brown of aggravated sexual assault. Brown pleaded true to two punishment enhancement paragraphs contained in his indictment, and the trial court assessed punishment of sixty-one years' imprisonment. In three points of error, Brown argues the trial court erred by giving jury instructions in the charge that failed to limit the conduct elements and included a definition of reasonable doubt, and the trial court lacked jurisdiction over Brown's case because it was not transferred to the trial court's docket. We affirm the trial court's judgment.

Background¹

1 Brown has not challenged the sufficiency of the evidence to support the conviction. Accordingly, we recite only those facts necessary to address Brown's arguments on appeal.

The evidence shows that complainant had been staying in the spare bedroom of her friend Robert's apartment. Brown lived in a nearby apartment. On the day of the offense, complainant arrived at Robert's apartment after 10:00 at night. Complainant intended to stay with another friend and had come to Robert's apartment to pick up her things. Shortly after she arrived, Brown came into the apartment and showed complainant the gun he had acquired. Complainant told him to put the gun away, because she did not like guns. Complainant considered Brown a friend. Complainant and Brown had consensual sex on two prior occasions. Complainant went into her bedroom to retrieve her things and Brown followed her into the bedroom. When appellant started to walk out of the bedroom with her possessions, Brown told her to come to him. Complainant told Brown she needed to leave because a friend was waiting for her. Brown grabbed complainant by the arm and pulled her back into the bedroom. Complainant sat on the bed. Brown told her he wanted to have sexual intercourse with her. Complainant refused and said that she had to leave. Brown pulled out his gun and told complainant that she was going to allow him to have sexual intercourse with her. Complainant appeared angry and had a "crazy" look on his face. Complainant was confused by Brown's behavior, because he had always been nice to her in the past. Brown placed the gun to complainant's head, took his penis from his pants, and told her to perform oral sex on him. Complainant asked Brown repeatedly if he was serious. Brown pressed the gun to the side of complainant's head and repeatedly told her to perform oral sex on him. Frightened and crying, complainant complied. After a few minutes, Brown told complainant to turn over. Complainant continued to cry. She turned over. Brown held his gun to the back of her head. He inserted his penis into her vagina. He ejaculated inside of complainant. He then got up, handed her a t-shirt, and told her to clean herself off with the t-shirt. Brown's defense was that the sex was consensual. However, the State introduced a recording of a telephone call Brown made from jail after his arrest for sexual assault. Complainant and Brown had a lengthy conversation in which Brown apologized repeatedly for what he had done and asked complainant not to go forward with pressing charges. Complainant refused to drop the charges. Brown did not testify at the guilt/innocence phase of trial.

Charge Error

In his first and second points of error, Brown argues the trial court submitted erroneous instructions in the jury charge. Brown made no objections in the trial court to the charge submitted to the jury. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743-44. When, as in this case, the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant `has not had a fair and impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Egregious harm is the type and level of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In making an egregious harm determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information [revealed] by the record of the trial as a whole." Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171).

Submission of Conduct Elements

In his first point of error, Brown asserts that aggravated sexual assault is a circumstances-surrounding-conduct offense and, as such, the trial court erred by failing to limit the definition of intentionally and knowingly in the jury charge. The trial court instructed the jury that a person commits the offense of sexual assault if he knowingly or intentionally causes the penetration of the female sexual organ of another person by any means without that person's consent or knowingly or intentionally causes the penetration of the mouth of another person by the sexual organ of the actor without that person's consent, and that the assault becomes aggravated if it is committed with a deadly weapon. See Tex. Penal Code Ann. §§ 22.021(a)(1)(A)(i), (ii), (a)(2)(A)(iv) (West 2011). The trial court further instructed the jury that:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

There are three "conduct elements" that can be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. Tex. Penal Code Ann. § 6.03 (West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). An offense may contain one or more of these "conduct elements," which alone or in combination form the overall behavior that the legislature intended to criminalize, and it is those "conduct elements" to which a culpable mental state may apply. McQueen, 781 S.W.2d at 603. A trial court errs by failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Ash v. State, 930 S.W.2d 192, 194 (Tex. App.-Dallas 1996, no pet.). Aggravated sexual assault is a nature-of-conduct offense. Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App. 2010). Accordingly, the trial court erred by failing to limit the statutory definitions of knowingly and intentionally to the nature of Brown's conduct, rather than the result of his conduct. Brown argues he was egregiously harmed by the error because "a jury reading the full charge could have been confused to a degree that they either ignored the confusing aspects of the charge or they misapplied the conduct elements to the culpable mental states in reaching a verdict." Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused. Before it could find Brown guilty of aggravated sexual assault, the charge required the jury to find, beyond a reasonable doubt, that Brown intentionally or knowingly caused the penetration of complainant's sexual organ without the consent of complainant by means of Brown's sexual organ and that in the course of this episode, Brown used or exhibited a deadly weapon (a firearm) or that Brown intentionally or knowingly caused the penetration of complainant's mouth with his sexual organ without the consent of complainant and that in the course of this episode, Brown used or exhibited a deadly weapon (a firearm). See Tex. Penal Code Ann. §§ 22.021(a)(1)(A)(i), (ii), (a)(2)(A)(iv). The charge correctly instructed the jury on the substantive law of aggravated sexual assault and informed the jury of what the State was required to prove. See Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.-Fort Worth 2010, pet. ref'd). The charge also correctly addressed the presumption of innocence and the State's burden of proof. Id. Within the context of the charge as a whole, the error does not appear to be harmful. See id. As to the state of the evidence, intent was not a contested issue at trial; rather, Brown's defense was that he engaged in consensual sex with complainant. There was no evidence that Brown acted without the requisite intent to penetrate complainant's sexual organ or complainant's mouth with his penis. The parties did not argue about Brown's intent in closing argument, instead focusing on whether there was consensual sex, the testimony and credibility of the witnesses, the contents of the recorded conversation between Brown and complainant introduced into evidence, the medical evidence, and that no gun had been introduced by the State as evidence. See id. Based on the entire record, we conclude Brown did not suffer egregious harm from the complained-of error in the jury charge. See Rodriguez v. State, 24 S.W.3d 499, 503 (Tex. App.-Corpus Christi 2000, pet. ref'd). We overrule Brown's first point of error.

Definition of Reasonable Doubt

In his second point of error, Brown asserts the trial court erred by including a definition of reasonable doubt in the charge. The trial court instructed the jury that the State had the burden of proving Brown guilty of the offense beyond a reasonable doubt. The charge then instructed the jury, "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." Brown contends this instruction defines "reasonable doubt." See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). However, the court of criminal appeals has concluded the trial court does not abuse its discretion by giving the complained-about instruction. See Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 1606 (2011); see also O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd) (complained-about instruction "simply states the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt" and does not define reasonable doubt (emphasis in original)). We overrule Brown's second point of error.

Trial Court's Jurisdiction Over Brown's Case

In his third point of error, Brown asserts the trial court lacked jurisdiction to hear the case against him because the case was not transferred to the trial court's docket. Brown contends that because the record does not include a transfer order, the trial court never obtained jurisdiction over the case and the judgment is therefore void. The indictment against Brown was filed originally in Dallas County Criminal District Court No. 1. Although the record does not contain a transfer order, this case later appeared on the docket of Dallas County Criminal District Court No. 5, where the case remained through the entry of judgment. Brown did not file a plea to the jurisdiction of Dallas County Criminal District Court No. 5. Brown's contention that Dallas County Criminal District Court No. 5 lacked jurisdiction over the case was raised for the first time on appeal. In claiming the trial court lacked jurisdiction to render judgment against him, Brown relies on article 4.16 of the Texas Code of Criminal Procedure. Article 4.16 provides in pertinent part: "When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or complaint shall first be filed shall retain jurisdiction. . . ." Tex. Code Crim. Proc. Ann. art. 4.16 (West 2005).² The purpose of article 4.16 is to "prevent any confusion or contention between different courts having concurrent jurisdiction and each seeking to exercise jurisdiction and not to shield an accused from prosecution." Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972) (emphasis added). The statute does not render proceedings in the second court void. Id. The judge of a district court in a county with two or more district courts may, in his discretion, transfer any criminal proceedings on his docket to the docket of one of the other district courts. See Tex. Gov't Code Ann. § 24.303(a) (West 2004). The fact that no transfer order is contained in the record does not render the actions of the transferee court void, but merely makes them subject to a valid and timely plea to the court's jurisdiction. Sharkey v. State, 994 S.W.2d 417, 419 (Tex. App.-Texarkana 1999, no pet.) (fact that no transfer order is contained in the record is procedural error and does not render actions of transferee court void, but merely makes them subject to a timely plea to the court's jurisdiction).³ If a defendant does not file a timely plea to the jurisdiction, he waives any right to complain that a transfer order does not appear in the record. Mills v. State, 742 S.W.2d 831, 835 (Tex. App.-Dallas 1987, no pet.); Sharkey, 994 S.W.2d at 419; Garcia v. State, 901 S.W.2d 731, 733 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd) (citing Daniels v. State, 171 Tex. Crim. 596, 352 S.W.2d 267, 268 (1961)). Brown filed no formal plea to jurisdiction. Therefore, he has waived the challenge he now makes. Absent an objection, the proceedings in Dallas County Criminal District Court No. 5 were proper even though no transfer order appears of record. See Mills, 742 S.W.2d at 835. We overrule Brown's third point of error. We affirm the trial court's judgment.