Brown v. State

Full title: EDDIE LEE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Aug 4, 2010

No. 09-09-00137-CR (Tex. App. Aug. 4, 2010)

Opinion

No. 09-09-00137-CR

Submitted on July 7, 2010.

Opinion Delivered August 4, 2010. DO NOT PUBLISH.

On Appeal from the 284th District Court, Montgomery County, Texas, Trial Cause No. 08-11-1059 CR.

Before GAULTNEY, KREGER, and HORTON, JJ.

MEMORANDUM OPINION

DAVID GAULTNEY Justice.

A jury found appellant Eddie Lee Brown guilty of aggravated assault with a deadly weapon and assessed a punishment of forty years in prison. Brown raises appellate issues relating to the factual sufficiency of the evidence, jury charge error, and a denial of a challenge for cause. We overrule the issues and affirm the judgment.

BACKGROUND

Sony Gonzalez testified she was napping on the couch in Eddie Brown's trailer. Eddie woke her up. Sonya did not want to talk. They started arguing. Sonya asked Eddie to give her cell phone back. Eddie refused. Sonya's son Juan opened the front door and asked them to stop arguing. Eddie told Juan to shut up and to get out. Sonya told Eddie not to talk to Juan like that, and Eddie slapped her in the face. Sonya kicked Eddie to get him away from her. With his closed fist, Eddie then punched Sonya on the left side of her face. Juan ran out the door. Eddie picked Sonya up and threw her around the room. Sonya stated, "I hit the wall, I hit the chair, I hit the back of the futon." Then he held her down on the futon, strangling her. Sonya testified Eddie either "let go" or she was able to pry "his fingers loose from [her] neck." She told him Juan had gone to call the police. Eddie went to the kitchen area and got a knife. Putting his hand over her throat, Eddie told her he was going to kill her and himself. The knife was pointed toward her. Fearing he was going to stab her, she grabbed the knife and was able to get it away from him. Her fingers were cut. Sonya begged him to let her go. Sonya testified that Eddie's sister came to the door of the trailer, told Eddie to stop, and then left. Sonya was able to get away from Eddie and ran next door. Sonya testified she had cuts on her fingers and in the palm of her hand. Her hand was bleeding. Her left eye was swollen, and she had bruises. The police came, arrested Eddie, and took him to jail. Officer Philip Smith testified he responded to a call at the residence. He described Sonya as having "a massive amount of swelling, to the point to where I don't believe she could even open her eye." He testified Sonya told him that Eddie had hit her in the face several times and tried to stab her. The officer did not recover any knife at the scene, and there was no knife found on Eddie. Officer Smith testified Sonya stated that if she filed charges against Eddie, Eddie would kill her. Officer Jeremiah Bourne, who also came to the scene, testified Sonya had "defensive wounds on her hands that were cuts." There was blood on her face. Bourne indicated Sonya stated, "If I press charges he'll kill me." Conie Fain, custodian of the sheriff's office's dispatch records, testified regarding the 911 call on the incident. Sonya's child was the source of the information to the dispatcher during the 911 call. Fain indicated there was no indication from the call of the use of any weapon. One of the paramedics dispatched to the scene testified Sonya had a superficial laceration to the skin that did not require stitches. The report stated "right hand trauma. Laceration. Patient has laceration to her right finger, third and fourth digits with small hemorrhage." Juan and other witnesses from the neighborhood testified at trial. Detritch Kuykendall explained that a neighborhood child came up to his house and wanted to call 911 because the child's mother was being beaten. Kuykendall testified he made the 911 call for the child and relayed the information the child gave him. The child indicated the assault was verbal and physical. Flordia Miller, Eddie's sister, testified she went over to Eddie's trailer that day. Eddie and Sonya were fighting; Miller did not see any hitting. She did not see her brother with a knife. Miller returned to her home. Miller did not call 911, although the dispatch records indicate there was a 911 call made from a number assigned to her house and Eddie's trailer. The person making the call hung up before relaying any information. Miller indicated Sonya came over to Miller's house, and Miller could tell Sonya had been beaten. Ten-year-old Juan testified he saw Eddie slap Sonya. Sonya then kicked Eddie, and he hit her with his fist and "threw her." After that, Juan ran to the neighbor's house and asked the neighbor to call 911. Juan testified he told the neighbor everything he saw at Eddie's trailer. Kimberly Hall, a nurse at Conroe Regional Emergency Department, testified she handled triage. The nurse's notes indicate Sonya had some swelling and bruising around her left eye and blurred vision in her left eye. Under the "subjective" category in the report is the entry "superficial lacerations" to the hands. When presented at trial with a photograph of Sonya, the nurse testified she could see a bandage, along with at least one superficial laceration, and what appeared to be a scrape near the webbing of Sonya's hand. Hall indicated there is no reference in her records to the use of a knife. The nurse testified Sonya was not talking very much to her. "If I would have been told she was cut with a knife, I would have put that in the triage." Hall testified Sonya left the emergency room "prior to medical screen exam" by a physician.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In issue one, appellant argues the evidence is factually insufficient to show that he used a knife to assault Sonya. In assessing the factual sufficiency of the evidence, we are to view the evidence in a neutral light, rather than in the light most favorable to the verdict. Williams v. State, 301 S.W.3d 675, 684 (Tex. Crim. App. 2009). Evidence may be factually insufficient in two ways: (1) evidence supporting the conviction is too weak to support the jury's verdict; or (2) in view of conflicting evidence, the jury's verdict is "against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006)). We must give great deference to the jury's assessment of the credibility of the witnesses, the weight of the testimony, and the resolution of any conflicts in the testimony. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Appellant argues the evidence is too weak for various reasons: Sonya had difficulty describing the knife; she was imprecise as to whether Eddie held the knife by the handle or the blade; the knife was not found after the assault; the injuries were not documented by the investigating officer; the only photographs of the alleged injuries to Sonya's hands were obscured by bandages; the paramedic did not assess Sonya's hands; the hospital nurse testified she did not note anything about a knife in her report; and Sonya's claim that she was able to grab the knife away from Eddie is not believable. Appellant's challenges to the sufficiency of the evidence revolve around the jury's determination of the credibility of the witnesses, the jury's perception of the photographs, and the weight to be given the evidence. Credibility determinations are within the province of the jury. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Sonya testified Eddie slapped her, hit her with his fist, threw her up against objects in the room, threatened to kill her, and brandished a knife over her while he strangled her. She explained she was injured when, in defending herself, she grabbed the knife away from Eddie. The record reveals that Eddie and Sonya were the only people in the room when he allegedly threatened her with the knife. Although Sonya was the only witness who testified to Eddie's use of the knife, a conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Furthermore, the officers testified concerning Sonya's statements at the scene, and they described cuts and blood on her hands The EMT described Sonya's injuries. The photographs show the bandaged finger and hand injuries. It is within the province of the jury to determine what weight to give the testimony, as it turns on an evaluation of credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Weighed in a neutral light, the evidence — Sonya's testimony and the officers' testimony, as well as the photographs and the visible injuries — is not so weak that the verdict is clearly wrong and unjust. Further, there is no objective basis in the record to conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. The evidence is factually sufficient to support Brown's conviction for aggravated assault with a deadly weapon. We overrule issue one.

JUROR CHALLENGE

In issue two, appellant argues the trial court erred by refusing to grant a juror challenge. In effect, his argument is that the trial court erred by not dismissing juror number 6 for cause and then by not allowing an additional peremptory challenge to dismiss juror number 19. Brown references the following exchange during voir dire:

[PROSECUTOR]: We just need to know for any reason that has been brought up so far that you think . . I can't presume him innocent because — let's say we have to vote right now, State of Texas versus Eddie Brown.

Juror Number 6, is the defendant guilty or not guilty?

[JUROR NUMBER 6]: Guilty.

[PROSECUTOR]: The State has put on no evidence. Does anybody feel like Number 6? How many hands do we have? You guys are going to vote guilty.

Juror Number 6 said he's going to vote guilty. . . .

Yes, sir, why is that?

[JUROR NUMBER 6]: Two priors.

The trial judge called juror number 6 to the bench for further voir dire, and trial counsel and the prosecutor questioned the juror.

[PROSECUTOR]: I'm saying the law would never ask him for a verdict right now. That's a misstatement what the law says. He can't do something right now.

Until the State has proven the defendant guilty, can you afford him the presumption of innocence guaranteed by the Constitution?

[JUROR NUMBER 6]: Yes.

[PROSECUTOR]: Okay. And if instructed by the judge in a jury instruction, can you only consider the evidence presented in the courtroom? And there's not been evidence presented yet, but if [] you're on the jury there will be, and you will only be able to consider that evidence in returning a verdict on [] guilt. Would you be able to follow that instruction?

[JUROR NUMBER SIX]: Yes.

. . .

[DEFENSE COUNSEL]: My concern is if you will find him guilty [right now], you are not presuming him innocent.

[JUROR NUMBER 6]: I said if you happen to vote right now.

[DEFENSE COUNSEL]: Nothing has happened.

[PROSECUTOR]: The correct question would be: If the judge called the case right now and you were on the jury and I stood up and as the State of Texas I presented no evidence, I said "the State rests," and I offered you no evidence that the defendant was guilty —

[JUROR NUMBER 6]: Then there's no evidence in the case, there's no —

[PROSECUTOR]: Exactly.

. . . .

[JUROR NUMBER 6]: What I heard, what we heard during voir dire, these things have happened. These are the allegations, these are the facts. These things have already happened, taken place, these convictions have happened, and time served. My thought process is, He's a bad guy. This is a bad guy.

So my thought process is he probably did do it. That's what I heard. So I was asked if I had to vote, if I had to make a decision. But I understand the question.

[PROSECUTOR]: That doesn't mean you can't afford him the presumption of innocence if you're on the jury.

[JUROR WILKINS]: Sure.

The trial court overruled the defendant's challenge for cause to juror number 6. A defendant is presumed to be innocent, and a person may not be convicted unless the State proves each element of the offense beyond a reasonable doubt. Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999). A venireman who is not able to presume the defendant's innocence is challengeable for cause under article 35.16(c)(2) for having a bias or prejudice against the law. Id.; see also TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2) (Vernon 2006). Based on what the juror had heard in voir dire up to that point, juror number 6 first indicated that he would find appellant guilty. The test under the challenge for cause is whether the prejudice or bias would substantially impair the prospective juror's ability to carry out his instructions and oath in accordance with the law. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Prior to the prospective juror's being excused for cause on this basis, the law must be explained to the venireman and he must be asked whether he can follow that law regardless of personal views. Id. The reviewing court gives great deference to the trial court's decision, because the "trial judge was present to observe the demeanor of the prospective juror and to listen to his tone of voice. Particular deference is given when the potential juror's answers are vacillating, unclear or contradictory." Id. (citations omitted). The record reflects that juror number 6 explained he misunderstood the prosecutor's question. In asking the question, the prosecutor was apparently attempting to clarify that the prosecutor's statements in voir dire were not evidence, but the juror apparently understood the question to suggest the opposite. The State's follow-up explanation and questions were sufficient to clarify the intended question for the potential juror. After further discussion and explanation of the law, juror number 6 explained his initial response, stated he understood the question, and indicated he could afford Brown the presumption of innocence. He indicated he understood that what he heard during voir dire was not evidence; no evidence had been presented yet. He agreed he would follow the court's instructions and the law given him in the charge. See Threadgill, 146 S.W.3d at 669. The Court of Criminal Appeals has held that "[i]n order for error to be preserved under Art. 35.16(a)(10), there must be a showing that the venire member has stated that his conclusions on the defendant's guilt or innocence would indeed affect his decision during deliberation." Curry v. State, 910 S.W.2d 490, 493 (Tex. 1995). After juror number 6 indicated he understood the question, and could presume the defendant innocent and render a verdict based on the evidence presented in court, he was not questioned further. The trial judge was in the best position to evaluate the responses and the juror's demeanor in answering the questions. We conclude the record presented does not support a reversal of the trial court's decision to deny the challenge for cause. See Newbury v. State, 135 S.W.3d 22, 37-39, 41 (Tex. Crim. App. 2004) (The trial judge, who was in the best position to evaluate the juror's demeanor and responses, did not abuse his discretion in denying defendant's challenge for cause.); see also Curry, 910 S.W.2d at 493-94. We overrule issue two.

JURY CHARGE

In issue three, Brown argues the trial court erred by refusing Brown's proposed jury charge submissions. Appellant submitted a proposed application paragraph and two instructions paragraphs on conflict resolution relating to the lesser included charge of assault. The State asserts that the trial court did not err in refusing Brown's proposed jury charge paragraphs, because they were repetitive of instructions given by the trial court. The trial court's charge contained the following application paragraphs:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about September 4, 2008 in Montgomery County, Texas, that the defendant, Eddie Lee Brown, did then and there intentionally, or knowingly, or recklessly, cause bodily injury to Sonya Gonzalez, by hitting Sonya Gonzalez with the defendant's hand, and the defendant did then and there use or exhibit a deadly weapon, namely, a knife, during the commission of said assault, then you will find the defendant guilty of Aggravated Assault With A Deadly Weapon, as alleged by the indictment.

If you do not so find, or if you have a reasonable doubt thereof, you will next consider whether the defendant is guilty of the lesser included offense of Assault. . . . .

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about September 4, 2008 in Montgomery County, Texas, that the defendant, Eddie Lee Brown, did then and there intentionally, or knowingly, or recklessly, cause bodily injury to Sonya Gonzalez, by hitting Sonya Gonzalez with the defendant's hand, then you will find the defendant guilty of the lesser included offense of Assault.

If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

Appellant contends his proffered charge would have more clearly indicated to the jury that in order to find him guilty of aggravated assault, the jury had to find he used or exhibited a knife during the assault. The trial court's charge is to set out the "law applicable to the case[.]" TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). The jury charge's application paragraph on aggravated assault is clear: the defendant must have used or exhibited a knife during the assault; the paragraph on the lesser included offense does not include use of a knife. We have reviewed appellant's requests for the charge and conclude they are duplicative in substance of the application paragraph. If a defendant requests instructions that are merely variations of those submitted by the trial court, the defendant is not entitled to them. Peck v. State, 923 S.W.2d 839, 843 (Tex. App.-Tyler 1996, no pet.). Appellant also requested that the following paragraphs on "conflict resolution" be submitted to the jury:

If the jury is unable to resolve the conflict beyond a reasonable doubt that the defendant committed either Aggravated Assault or Assault, the conflict should be decided to the benefit of the defendant, and con[v]ict him of the lesser included offense.

After considering these instructions and the evidence you should believe beyond a reasonable doubt that the defendant is guilty of aggravated assault with a deadly weapon or assault but you have a reasonable doubt as to which then you shall resolve that doubt in favor of the defendant and find [defendant] guilty of the lesser offense of assault.

Appellant argues these paragraphs would have informed the jury "as to the law applicable to their task" and would have informed the jury with an instruction on how the standard of reasonable doubt should inform the deliberations. The jury charge, as shown by the following instructions, adequately informed the jury of its duties:

A grand jury indictment is not evidence of guilt, it is the means whereby a defendant is brought to trial in a felony prosecution. The indictment may not be considered by you in passing on the question of guilt. The burden of proof in all criminal cases rests on the State throughout the trial and never shifts to the defendant.

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person had been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit him and say by your verdict "Not Guilty."

. . . .

You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony, but you are bound to receive the law from the Court which is herein given to you and be governed thereby.

The court's charge adequately sets forth the presumption of innocence and the juror's responsibility to resolve credibility issues and weigh the evidence. Appellant's "conflict resolution" instructions are duplicative of the court's charge and unnecessary. See Peck, 923 S.W.2d at 843. We overrule issue three. In issue four, appellant argues the trial court erred by refusing appellant's extraneous offense instruction. Appellant's requested instruction is as follows:

The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you if it does in determining the credibility of a witness, however, evidence of other crimes, wrongs or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt that the witness committed such acts, if any were committed.

During the charge conference, appellant for the first time requested this limiting instruction on the use of extraneous offenses. In Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007), the Court of Criminal Appeals stated that "if a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. . . . [A] limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted." Id. The record reveals that appellant did not request a limiting instruction on extraneous offenses until the charge conference; he did not make the request at the time the evidence was first admitted. The trial court did not err in refusing his instruction. See id. We overrule issue four. The judgment is affirmed. AFFIRMED.