Opinion
NUMBERS 13-14-00145-CR
03-17-2016
MATTHEW CASANOVA A/K/A MATTHEW JOHN CASANOVA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Appellant Matthew Casanova a/k/a Matthew John Casanova challenges his conviction for continuous family violence, a third-degree felony enhanced to a habitual felony offender. See TEX. PENAL CODE ANN. § 25.11 (West, Westlaw through 2015 R.S.). The jury found appellant guilty of: (1) "the offense of assault family violence alleged to have been committed on the 4th day of April, 2013[;]" and (2) "the offense of assault family violence alleged to have been committed on the 6th day of July, 2013." The jury further found true that appellant was previously convicted of two additional felonies and assessed punishment at twenty-five years' imprisonment. See id. § 12.42(d) (West, Westlaw through 2015 R.S.). By two issues, appellant argues the trial court erred by: (1) failing to submit an element of the offense to the jury in violation of his right to due process; and (2) failing to sufficiently charge the jury with the lesser-included offenses of misdemeanor assault. We affirm.
I. BACKGROUND
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
Appellant was indicted for the offense of continuous family violence for allegedly committing two assaults against his wife, Naomi Casanova, during a period of twelve months or less in duration. The State presented evidence at trial of two assaults occurring on April 4, 2013, and July 6, 2013. During the charge conference, appellant objected to the State's proposed jury instructions and requested an instruction on the lesser-included offense of assault, a class A misdemeanor. See id. § 22.01(a)(1) (West, Westlaw through 2015 R.S.). The following dialogue occurred between appellant's trial counsel and the trial court concerning the requested instruction:
Appellant was also indicted for aggravated assault and aggravated sexual assault. See TEX. PENAL CODE ANN. §§ 22.011, 22.02 (West, Westlaw through 2015 R.S.). The State abandoned those charges and proceeded to trial only on the charge of continuous family violence.
"A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code." TEX. PENAL CODE ANN. § 25.11(a) (West, Westlaw through 2015 R.S.).
[Defense Counsel]: Judge, my understanding at the Bench prior to the trial was that the jury would have the following options. Guilty to the April offense or not guilty to the April offense. Guilty to the July offense or not guilty to the July offense . . . . [A]nd I thought we were all on the same wave length that that's what was going to happen because [the prosecutor] voir dired on misdemeanor punishment . . . . So I think we need to have a charge that says—I think they should be more like counts. We find the defendant . . . guilty or not guilty of [the two offenses.]
[Court]: What if we have a Paragraph V that defines the April 4th event and . . . then we have a Paragraph VII that defines the July 6th event . . . . Then we get back here and we ask a question as to the alleged occurrence on April the 4th, 2013 . . . . We, the jury—as to the alleged offense on April 4th, 2013, we, the jury, find the defendant not guilty. As to the alleged offense on April the 14th [sic], we, the jury, find the defendant guilty. As to the alleged offense on July the 6th, we the jury—we just have four questions.
. . . .
Because the way it's done right now, if they think that he's guilty of the April 4th but not guilty of the July 6th . . . then they have to answer no, because this is a conjunctive, and by putting each one in there they have a chance to answer for each of the alleged offenses.
[Defense Counsel]: And that's what we're asking.
. . . .
If they find either one it's a misdemeanor. They have to find both to have the felony and that's why I'm saying I think they have to have the choice.
[Court]: I think they have to have the choice, too.
After additional discussion, appellant's counsel informed the trial court that he had no further objections to the jury charge. The charge submitted to the jury provides the following definition of continuous family violence:
Our statutes provide (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse[,] and it is against another person or persons whose relationship to or association with the defendant is described by Section 71.003 or 71.005 Family Code.The application section of the charge reads as follows:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that [appellant] during a period of 12 months or less committed two or more of the following acts;The verdict form provided to the jury reads as follows:
That [appellant] on about the 4th day of April 2013 . . . as alleged in the indictment, did then and there intentionally, or knowingly or recklessly cause bodily injury to NAOMI CASANOVA by making contact with the said NAOMI CASANOVA with the hands of [appellant] and the said NAOMI CASANOVA was a member of [appellant's] family, or household;
That [appellant] on about the 6th day of July 2013 . . . as alleged in the indictment, did then and there intentionally, or knowingly or recklessly cause bodily injury to NAOMI CASANOVA by making contact with the said NAOMI CASANOVA with the hand or feet of [appellant] and the said NAOMI CASANOVA was a member of [appellant's] family, or household;
You will find [appellant] guilty of the offense of continuous family violence and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit [appellant] and say by your verdict "Not Guilty."
We, the Jury, find [appellant] NOT GUILTY, of the offense of ASSAULT FAMILY VIOLENCE alleged to have been committed on the 4th day of April, as alleged in the Indictment
/s/_________
PRESIDING JUROR
We, the Jury, find [appellant] GUILTY, of the offense of ASSAULT FAMILY VIOLENCE alleged to have been committed on the 4th day of April, as alleged in the Indictment
/s/_________
PRESIDING JUROR
We, the Jury, find [appellant] NOT GUILTY, of the offense of ASSAULT FAMILY VIOLENCE alleged to have been committed on the 6th day of July, as alleged in the Indictment
/s/_________
PRESIDING JUROR
We, the Jury find [appellant] GUILTY, of the offense of ASSAULT FAMILY VIOLENCE alleged to have been committed on the 6th day of July, as alleged in the Indictment
/s/_________
PRESIDING JUROR
We note that the jury instructions did not provide a separate application paragraph for the lesser-included offense of misdemeanor assault.
The presiding juror signed the verdict form indicating a unanimous guilty verdict for both the April 4 and the July 6 incidents. This appeal followed.
II. STANDARD OF REVIEW
A claim of error in the jury charge is reviewed using the procedure set out in Almanza v. State. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988)). The first step is to determine whether there is error in the charge. Barrios, 283 S.W.3d at 350; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there was error and the appellant objected to the error at trial, reversal is required if the error is calculated to injure the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171. If the error was not objected to, it must be fundamental and will require reversal only if it was so egregious and created such harm that the defendant did not have a fair and impartial trial. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171. The degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. When used, a verdict form becomes part of a jury charge, and we review verdict-form errors as jury-charge errors. Jennings v. State, 302 S.W.3d 306, 307 (Tex. Crim. App. 2010).
III. DUE PROCESS
By his first issue, appellant argues that his "constitutional right to due process was violated because the trial court failed to submit an element of the offense to the jury." Specifically, appellant maintains that the verdict form did not require the jury to make a finding that the two offenses of assault referenced in the charge occurred within a period that is twelve months or less in duration, an element of continuous family violence. See TEX. PENAL CODE ANN. § 25.11(a). The State responds that the jury, by its verdict, necessarily made a finding on each element of the offense. A. Apprendi v. New Jersey
Appellant's argument relies solely on the United States Supreme Court's decision in Apprendi v. New Jersey. 530 U.S. 466 (2002). In Apprendi, the Court examined the validity of a hate-crime statute that allowed for an increased sentence if the trial judge determined, by a preponderance of the evidence, that the defendant committed the crime with the intent to intimidate a person or group of persons because of their race, color, gender, handicap, religion, sexual orientation, or ethnicity. Id. at 468-69. The Court explained that "[t]he Fourteenth Amendment right to due process and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. at 466. The Court determined that the New Jersey statute was unconstitutional and held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
"The focus in Apprendi . . . [was] on whether the trial court, instead of the jury, ha[d] made a fact finding that cause[d] the sentence imposed to exceed the statutory maximum for a single count." Baylor v. State, 195 S.W.3d 157, 160 (Tex. App.—San Antonio 2006, no pet.) (citing United States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002)); see, e.g., Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (finding an Apprendi violation where trial court, during sentencing for single aggravated assault charge, made an affirmative finding that the defendant chose the victim because of bias or prejudice, which increased the range of penalties from those for second-degree felony to those for first-degree felony).
B. Analysis
Section 25.11(a) of the penal code provides, in relevant part, that:
[a] person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71. 0021(b), 71.003, or 71.005, Family Code.TEX. PENAL CODE ANN. § 25.11(a) (emphasis added). Section 22.01(a)(1) provides that someone commits an assault by "intentionally, knowingly, or recklessly caus[ing] bodily injury to another, including the person's spouse[.]" Id. § 22.01(a)(1).
We agree with appellant that whether or not the alleged assaults occurred within a period of twelve months or less in duration is an element of continuous family violence that the jury must find beyond a reasonable doubt. See Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.) (concluding that the commission of two or more acts of sexual abuse over a specified time period is an element of continuous sexual abuse of a child). However, we conclude that the jury was properly instructed to decide this issue.
The jury instructions provided the definition of continuous family violence, including the requirement that the two assaults occur "during a period that is 12 months or less in duration." The instructions explained that "[t]he 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." The instructions further provided that the jury was "required to agree unanimously that [appellant], during a period that is 12 month[s] or less in duration, two or more times engaged in conduct that constituted an offense of assault causing bodily injury[.]" The application portion of the charge instructed the jury, in part, that it must find, beyond a reasonable doubt, that appellant committed two or more assaults "during a period of 12 months or less."
The verdict form did not require the jury to find expressly that the two assaults occurred within a period of twelve months or less. However, the jury was required to find whether or not appellant committed separate assaults on April 4, 2013 and July 6, 2013, a period of ninety-three days. By returning a verdict of guilty as to both incidents designating the date, the jury necessarily found that the two assaults occurred within a period of twelve months or less.
We conclude that, by its verdict, the jury necessarily decided, beyond a reasonable doubt, whether appellant committed each element of the offense of continuous family violence, including whether the two assaults at issue occurred within a period of twelve months or less. See Apprendi, 530 U.S. at 490; see also Smith v. State, No. 09-03-216-CR, 2004 WL 1516967, at *2-3 (Tex. App.—Beaumont June 30, 2004, pet. ref'd) (mem. op., not designated for publication) (concluding that the question of whether a motor vehicle was used in the commission of evading arrest was properly submitted to the jury, where the element was included in both the general instructions and the application paragraph of the jury charge and the instructions provided that the State must prove each element of the offense beyond a reasonable doubt); Jones v. State, No. 01-01-01164-CR, 2003 WL 360544, at *1 (Tex. App.—Houston [1st Dist.] Feb. 20, 2003, pet. ref'd) (mem. op., not designated for publication) (holding that the factual determination of the quantity of narcotics was submitted to the jury where the jury charge stated that the defendant was charged with possession with intent to deliver over 400 grams of ecstasy and that the State had to prove every element of the offense beyond a reasonable doubt).
We reject appellant's argument that the verdict form violated his right to due process as outlined in Apprendi. We overrule appellant's first issue.
IV. LESSER-INCLUDED OFFENSE
By his second issue, appellant argues that the trial court "fail[ed] to sufficiently instruct the jury on the lesser-included offenses of misdemeanor assault[.]" We conclude the trial court did not err because appellant was not entitled to a lesser-included offense instruction.
A. Applicable Law
The determination of whether the trial court should give a lesser-included offense instruction requested by a defendant requires a two-step analysis: "(1) Is the requested charge for a lesser-included offense of the charged offense? (2) Is there trial evidence that supports giving the instruction to the jury?" Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011).
We review the first step de novo. See id. In applying the second prong, we look to see if there is some evidence in the record that would permit a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. at 145. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).
B. Analysis
Regarding the first prong of the analysis, we agree that misdemeanor assault is a lesser-included offense of continuous family violence. The indictment specifically alleges the commission of two instances of assault as the basis for the offense of continuous family violence. Unlike cases in which the lesser offense is not actually listed in the indictment (e.g. criminally negligent homicide in a murder indictment), continuous family violence is, by its very definition, the commission of two or more offenses of assault as defined by penal code section 22.01(a)(1). See Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) (concluding aggravated sexual assault was lesser-included offense of continuous sexual abuse of a child, where indictment alleged specific offenses of aggravated sexual assault constituting offense of continuous sexual abuse of a child).
Turning to the second prong, we note that the "some evidence" requirement is not satisfied when the defendant simply denies the commission of any crime. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003); Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). "A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)
Appellant's defense at trial was that he committed no offense and that the complaining witness, Naomi Casanova, entirely fabricated the allegations of assault. For instance, appellant attacked the credibility of the complaining witness by arguing that she was not truthful when she denied to law enforcement that she had an affair, and by highlighting other inconsistencies in her testimony. Appellant also argued that she exhibited no injuries, which was inconsistent with the nature of the assaults that she described.
We hold that there is no evidence in the record that would permit a jury rationally to find that, if appellant is guilty, he is guilty only of a lesser-included offense. While the State did present evidence of a specific date on which each of the assaults occurred, there is no evidence in the record to suggest that only one assault occurred. At trial, Appellant argued that he committed no assaults. Under this record, the lesser-included offenses are not valid and rational alternatives to the charge against appellant. See Hall, 225 S.W.3d at 535-36; see also Coleman v. State, No. 11-11-00039-CR, 2013 WL 779898, at *12-13 (Tex. App.—Eastland Feb. 28, 2013, no pet.) (mem. op., not designated for publication) (holding that the defendant charged with continuous sexual abuse of a child was not entitled to instruction on lesser-included offenses of aggravated assault of a child and indecency with a child where the defendant did not challenge whether specific instances of abuse occurred but rather asserted that no inappropriate sexual contact occurred).
We conclude that the trial court did not err in failing to instruct the jury regarding the lesser-included offense of assault. Appellant's second issue is overruled.
We also note that the verdict form provided the jury with the option of convicting appellant of only one assault, which, as noted above, is a lesser-included offense of continuous family violence. --------
V. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of March, 2016.