Summary
holding appellant waived sufficiency complaint by failing to provide supporting argument, substantive analysis, or citation to appropriate authorities or portions of record
Summary of this case from Jasso v. StateOpinion
NO. 01-19-00524-CR
06-03-2021
Charles CHAVES, Appellant v. The STATE of Texas, Appellee
Inger H. Chandler, 1065 Six Pines Dr., Ste. 230, The Woodlands, Texas 77380, for Appellant. Kim Ogg, District Attorney, Harris County, Texas, Bridget Holloway, Assistant District Attorney, Harris County District Attorney's Office, 500 Jefferson, Ste. 600, Houston, Texas 77002, for Appellee.
Inger H. Chandler, 1065 Six Pines Dr., Ste. 230, The Woodlands, Texas 77380, for Appellant.
Kim Ogg, District Attorney, Harris County, Texas, Bridget Holloway, Assistant District Attorney, Harris County District Attorney's Office, 500 Jefferson, Ste. 600, Houston, Texas 77002, for Appellee.
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
Julie Countiss, Justice
A jury found appellant, Charles Chaves, guilty of the felony offense of aggravated assault of a family member. After finding true the allegation in an enhancement paragraph that appellant had been previously convicted of a felony offense, the jury assessed his punishment at confinement for seventeen years. In four issues, appellant contends that the evidence is insufficient to support his conviction and the trial court erred in denying his motion for mistrial, failing to instruct the jury on a lesser-included offense, and admitting certain evidence during the punishment phase of trial.
See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b) ; see also Tex. Code Crim. Proc. Ann. art. 42.013 ; Tex. Fam. Code Ann. § 71.004.
We affirm.
Background
The complainant, Brenda Vasquez, testified that she was previously in a dating relationship with appellant and appellant is the father of her two children. The complainant and appellant "share[d] a household" at one point, and the complainant stated that she previously considered herself to be "common-law married" to appellant. The complainant described appellant as "very controlling."
The complainant and her children moved into the home of the complainant's sister, Claudia Benedix, and her sister's husband, Trey Benedix, to "get away" from appellant and "to get away from the abusive relationship." Claudia's home was in Harris County, Texas.
On November 24, 2017, appellant and the complainant argued "through the phone" and in text messages. Appellant cursed at the complainant and threatened to kill her. Appellant told the complainant that he was coming to Claudia's house because he "wanted to talk."
When appellant arrived at Claudia's home, he left his car running and approached the front door. The complainant told Trey to let appellant inside. Appellant left the front door open and rushed inside toward the complainant, who was in the dining room. Appellant told the complainant "to go outside," but the complainant refused to do so. Appellant argued. The complainant told appellant that they could go talk in the complainant's bedroom, but first appellant had to turn off his car. When appellant went outside to turn off his car, Claudia told the complainant that appellant had a firearm in his pocket. The complainant knew that appellant carried a firearm.
The complainant and appellant went to the complainant's bedroom, where their two children were asleep. Appellant took out his firearm and pointed it at the complainant's forehead. He said, "[Y]ou think I'm fucking playing with you?" and "I told you what I was going to do." According to the complainant, appellant was referencing a text message that he sent to her earlier that day saying that "he was going to come and kill [her]."
The complainant fell to her knees on the floor. She was scared, feared that she was in imminent harm, and thought that appellant would shoot her. The complainant believed that her children and everyone in the home were in danger. She yelled, and Claudia and Trey came into the bedroom. They said, "[W]hat's going on?" and appellant responded, "[S]he thinks she's going to play with me." Claudia and Trey tried to calm appellant down.
While the complainant was on the floor, appellant slapped her across her face. Claudia and Trey told appellant to relax, to put the firearm down, and to leave. Appellant refused to leave the home unless the complainant walked in front of him. The complainant said, "[N]o, I'm not going to walk," because she was scared that appellant would shoot her in the back.
The complainant stated that she had a bug bite on her ear that was swollen and when appellant slapped her, it "popped." Her cheek was swollen from being slapped. The trial court admitted into evidence photographs taken of the complainant that depicted her injuries on November 24, 2017.
Eventually, appellant reached the front door of the home. As he went outside, the complainant tried to close the door, but appellant grabbed her hair to pull her outside with him. In the process, appellant pulled out portions of the complainant's hair. The complainant did not "want him to take" her and managed to force herself back inside the house. Appellant told Claudia and Trey to give him the complainant and their two children. The complainant said, "[N]o. Don't let him take me. I don't want to go with him." Trey told appellant to "go put [his] gun away," and when appellant left to do so, the complainant, Claudia, and Trey shut the front door and ran to the hallway in the back of the home. Claudia called for emergency assistance. The complainant did not go to the hospital that night.
The trial court admitted into evidence photographs of the portions of the complainant's hair that had been pulled out.
Claudia testified that the complainant is her sister. Claudia lived in a home on Golden Dale Court with her husband, Trey, their children, the complainant, and the complainant's two children. The complainant and her children came to live at Claudia's home in fall 2017 because the complainant "wanted to get away from" appellant. Appellant used to be the complainant's boyfriend, and the complainant used to live with appellant.
On November 24, 2017, appellant had been "in touch with" the complainant by telephone all day, and appellant told the complainant that he wanted to come to the house and talk to her. Appellant arrived at Claudia's house about 1:00 a.m. or 2:00 a.m., and Claudia saw that appellant was carrying a firearm. Claudia knew that appellant carried a firearm.
When appellant came into the house, he told the complainant, "I want to talk to you. ... [L]et's go in the room." Appellant did not drag the complainant to the complainant's bedroom. The complainant's children were asleep in the bedroom at the time. As appellant and the complainant went into the bedroom, Claudia went into her bedroom, where Trey was, and she told Trey that appellant had a firearm. Claudia then heard the complainant screaming and crying. She also heard arguing. Claudia opened the door to the complainant's bedroom and saw the complainant on the floor. Appellant had a firearm pointed at the complainant. Claudia thought appellant wanted to kill the complainant and everyone in the home. Appellant slapped the complainant and then pointed the firearm at Claudia and Trey. Appellant wanted Claudia and Trey to walk out of the bedroom, but Claudia told appellant to walk out first.
Appellant left the bedroom and walked down the hallway. He pulled the complainant by her hair, "trying to get her out the [front] door" of the home. Claudia did not let appellant pull the complainant out the front door. The complainant held onto Claudia and said, "[P]lease, don't let him take me out. He wants to kill me. Don't let him take me out." Claudia and Trey also tried to get appellant to "put the gun up." When appellant was outside the home, they closed the front door and locked it. Claudia, Trey, and the complainant went to the bedrooms and heard appellant "sho[o]t the [front] door one time." Claudia called for emergency assistance after appellant left the house.
Claudia believed that appellant intended to hurt the complainant that night, and Claudia felt threatened by appellant's actions. Claudia noted that appellant pulled out portions of the complainant's hair. According to Claudia, the complainant's children did not wake up during the aggravated assault.
The trial court admitted into evidence an audio recording of Claudia's telephone call for emergency assistance. On the recording, Claudia states that appellant was at her home "with a gun" and was "trying to kill all of [them]." Claudia explains that appellant came into the home with a firearm, pointed the firearm at "all of [them]," and hit the complainant.
Trey, the complainant's brother-in-law, testified that he lived in a home on Golden Dale Court with his wife, Claudia, their children, the complainant, and the complainant's two children. Trey knew that appellant carried a firearm.
On November 24, 2017, appellant came over to Trey's house late at night. When he arrived, he took the complainant to the complainant's bedroom, and they "started hollering back and forth." As Trey stood outside his bedroom's door, he heard commotion, arguing, and yelling in the complainant's bedroom. He heard the complainant scream. Claudia, who was with Trey, opened the door to the complainant's bedroom as Trey stood behind her. Appellant "had [the complainant] on the ground [and was] waving a gun." He then pointed the firearm back and forth—first pointing the firearm at the complainant and then pointing the firearm at Claudia and Trey. According to Trey, appellant "point[ed] the gun right at [him and Claudia] and back at [the complainant] and [appellant] had [the complainant's] head down on the ground." Claudia and Trey tried to calm down appellant because he was "heated." By talking to appellant, they "got [appellant] to step outside [the house] so he could put the gun away." When appellant was outside the home, Trey slammed the front door closed. After the front door was closed, appellant "shot [the] front door."
Trey noted that when appellant pointed the firearm at him and Claudia, Trey felt threatened, and he was afraid that appellant might discharge his firearm.
Harris County Constable's Office ("HCCO"), Precinct 5, Sergeant J. Hutchens testified that, while working on November 24, 2017, he responded to a "family assault call" at a home on Golden Dale Court in Harris County, Texas. Upon arrival, Hutchens met with the complainant, who was distraught. The complainant had minor swelling on the right side of her cheek, a cut on her ear, and "spots where her hair had been pulled out." Hutchens stated that the complainant's injuries were consistent with an assault having taken place. Hutchens noted that there were no signs of forced entry at the front door of the home, and appellant was no longer at the house when Hutchens arrived. Hutchens testified that a firearm is a deadly weapon and could cause bodily harm.
Sergeant Hutchens testified that the photographs of the complainant from November 24, 2017, which the trial court admitted into evidence, depicted the complainant's injuries that night.
HCCO, Precinct 5, Deputy S. Pham testified for the defense, stating that on November 24, 2017, he went to the home on Golden Dale Court with Sergeant Hutchens. Pham spoke to Claudia, who told him that appellant had fired a firearm at the house that night. Law enforcement officers did not "locate a gunshot around the house." All the witnesses reported that appellant had put a firearm to the complainant's head.
Mistrial
In his first issue, appellant argues that the trial court erred in denying his motion for mistrial because "a non-stricken venire member [was] not ... properly seated on the jury" in violation of Texas Code of Criminal Procedure article 35.26(a).
A mistrial is a device used to halt trial court proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) ; see also Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ("Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors[.]"). We review a trial court's denial of a mistrial for an abuse of discretion. Ladd , 3 S.W.3d at 567 ; Guzman v. State , 591 S.W.3d 713, 725 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Statutory interpretation presents a question of law that we review de novo. See Bays v. State , 396 S.W.3d 580, 584 (Tex. Crim. App. 2013).
A criminal defendant is entitled to a trial by a fair and impartial jury. See U.S. CONST. amend. VI, XIV ; TEX. CONST. art. I, §§ 10, 15 ; TEX. CONST. art. V, § 10. The right to trial by jury encompasses a right to have the jury selected in substantial compliance with the applicable procedural statutes and rules. Heflin v. Wilson , 297 S.W.2d 864, 866 (Tex. App.—Beaumont 1956, writ ref'd) ; see also Arnold v. State , No. 05-04-01522-CR, 2006 WL 40744, at *5 (Tex. App.—Dallas Jan. 9, 2006, pet. ref'd) (not designated for publication). The Texas Constitution generally requires that a district court jury consist of twelve members. See TEX. CONST. art. V, § 13 ; see also TEX. CODE CRIM. PROC. ANN. arts. 33.01(a), 36.29 ; TEX. GOV'T CODE ANN. § 62.201 ; Hatch v. State , 958 S.W.2d 813, 815–16 (Tex. Crim. App. 1997) (noting defendant may waive requirement that no fewer than twelve jurors can return verdict in non-capital felony case); Adams v. State , 92 Tex.Crim. 264, 243 S.W. 474, 265–66 (Tex. Crim. App. 1921).
Procedurally, the first twelve names on the jury list that have not been struck by the parties constitute the jury. See TEX. CODE CRIM. PROC. ANN. § 35.26(a); see also Miller v. State , 623 S.W.2d 491, 494 (Tex. App.—Beaumont 1981) ("The[ ] unstricken names constituted the jury...."), aff'd , 692 S.W.2d 88 (Tex. Crim. App. 1985). Texas Code of Criminal Procedure article 35.26(a) states:
See, e.g. , Tex. Code Crim. Proc. Ann. arts. 35.14 (peremptory challenge), 35.25 (making peremptory challenge); Pierson v. State , 614 S.W.2d 102, 107 (Tex. Crim. App. 1980) (noting in non-capital cases parties exercise their peremptory challenges after having conducted voir dire examination of jury panel); see also Tex. Code Crim. Proc. Ann. art. 35.16 (reasons for challenge for cause).
When the parties have made or declined to make their peremptory challenges, they shall deliver their lists to the clerk. Except as provided in [s]ubsection (b) of this section, the clerk shall, if the case be in the district court, call off the first twelve names on the lists that have not been stricken. ... Those whose names are called shall be the jury.
TEX. CODE CRIM. PROC. ANN. art. 35.26(a) (emphasis added). A violation of article 35.26 does not per se constitute reversible error. See Griffin v. State , 481 S.W.2d 838, 840 (Tex. Crim. App. 1972) ; Brossette v. State , 885 S.W.2d 841, 842 (Tex. App.—Dallas 1994, pet. ref'd) ; see also Jones v. State , 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) ("[T]he constitutional right to trial by an impartial jury is not violated by every error in the selection of a jury."). In interpreting article 35.26(a), we are to consider the spirit and intent of the article under the facts of the case. See Griffin , 481 S.W.2d at 840 ; Brossette , 885 S.W.2d at 842–43 ; see also Tillman v. State , No. 14-98-01233-CR, 2001 WL 543666, at *3–4 (Tex. App.—Houston [14th Dist.] May 24, 2001, pet. ref'd) (not designated for publication) (rejecting State's reliance on "mandatory language of the statute" and noting "interpretations of article 35.26 have looked to the statute's spirit and intent rather than the mandatory nature of its language"). A trial court has the authority to excuse jurors for a proper basis at any point up to the time the jury is sworn in as a whole and empaneled. Brossette , 885 S.W.2d at 843.
Sixty-five prospective jurors made up the venire panel in this case. First, the trial court conducted a preliminary voir dire examination of the venire panel. The attorneys for the State and appellant then took turns addressing the panel. At the end of voir dire, eighteen venire members were "excused by agreement" between the State and appellant, and forty-seven prospective jurors remained on the venire panel from which the jury was selected.
The State and appellant both exercised their allotted peremptory strikes. The trial court proceeded to call the names of the purported first twelve persons who were not struck to make up the jury. See TEX. CODE CRIM. PROC. ANN. art. 35.26(a). Those twelve people included juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 41, and 45. Juror 50 was called as the alternate juror. The trial court asked if there were "[a]ny objection[s] to the jury," and the State and appellant both responded that there were no objections. The trial court excused the rest of the venire panel, but it did not swear in the jury.
The State and appellant each used their ten peremptory challenges on the venire members that would potentially comprise the main jury panel. The trial court also gave the State and appellant one additional peremptory challenge to use on the prospective alternate jurors, which they did.
The next day, before swearing in the jury, the trial court informed the parties that there had been a "clerical error with regard[ ] to the [juror] strike list that was submitted [by] the clerk." The court held a hearing outside the presence of the unsworn jury, at which the trial court clerk testified. The clerk explained that in determining which twelve persons would sit on the jury, she reviewed the strike lists that showed which prospective jurors had been struck by the State and appellant or by agreement of the parties. She then tried to "choose [the] first 12" names who had not been struck. But when she was reviewing the State's and appellant's strike lists, she "overlooked ... one person," juror number 39, who had not been struck by either the State or appellant or by agreement of the parties. It was an inadvertent mistake and not intentional or malicious on the part of the clerk. According to the clerk, based on the strike lists, the first twelve persons who were not struck included juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 39 , and 41. But because the clerk overlooked juror number 39 in compiling the list of "first twelve names," the jurors called to be on the jury were juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 41, and 45. The clerk noted that neither the State nor appellant had struck juror number 45, and the parties' strike lists in the record reflect the same.
After the clerk's testimony, appellant objected to the composition of the jury, presumably because juror number 45 had been seated on the jury rather than juror number 39. Appellant argued that because of the "clerical error," the clerk had not seated the first twelve eligible persons on the jury list in violation of Texas Code of Criminal Procedure article 35.26(a). Appellant requested a mistrial, which the trial court denied. The trial court then swore in the jury, which included juror number 45.
In Bagwell v. State , our sister appellate court considered a defendant's argument that the trial court erred in denying his motion for mistrial because the first twelve potential jurors who were not challenged by the parties were not seated on the jury in violation of Texas Code of Criminal Procedure article 35.26(a). 657 S.W.2d 526, 526–27 (Tex. App.—Corpus Christi–Edinburg 1983, pet. ref'd). There, the trial court deputy clerk "made an error in preparing the jury chosen list in that she had inadvertently left out Juror No. 25," making juror number 35 the twelfth juror seated on the jury. Id. at 527. Juror number 25 had not been struck by either party, and she had not been excused by the trial court. Id. At an evidentiary hearing outside the presence of the jury, the deputy clerk testified that she made a mistake in preparing the "jury chosen list," and the parties stipulated that juror number 25 should have been seated on the jury. Id. The defendant asserted, on appeal, that the trial court erred in denying his motion for mistrial based on a violation of article 35.26(a). The court of appeals, however, disagreed, holding that the spirit and intent of article 35.26(a) had not been violated. Id. Thus, the appellate court overruled the defendant's complaint that the trial court erred in denying his motion for mistrial. Id.
Here, appellant's argument rests on the portion of article 35.26(a) which provides that "the clerk shall , if the case be in the district court, call off the first twelve names on the lists that have not been stricken. ... Those whose names are called shall be the jury." TEX. CODE CRIM. PROC. ANN. art. 35.26(a). Yet Texas courts have rejected a party's reliance on the purported "mandatory language" of article 35.26(a). See, e.g., Griffin , 481 S.W.2d at 840 ; Tillman , 2001 WL 543666, at *3–4 (rejecting State's reliance on "mandatory language of the statute" and noting that "no cases" supported State's interpretation); Brossette , 885 S.W.2d at 842–43 (rejecting defendant's assertion that language of article 35.26(a) did not "provide the trial court with any discretion as to the jury's composition after peremptory challenges [were] made"); see also Wheeler v. State , 152 Tex.Crim. 218, 212 S.W.2d 169, 222 (Tex. Crim. App. 1948) (noting Texas Court of Criminal Appeals has "held that the many statutes relative to the method and manner of the formation of a jury in a capital felony case are but procedural and are mainly directory and not mandatory"); cf. Sanders v. State , 688 S.W.2d 676, 678 (Tex. App.—Dallas 1985, pet. ref'd) (although Texas Code of Criminal Procedure article 36.01(3) provides that "[t]he State's attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof," holding language of statute was not mandatory and trial court did not err in not requiring State to make opening statement (internal quotations omitted) (emphasis added)). Rather, we are to look at article's 35.26(a) spirit and intent in determining whether there has been a violation of the article. See, e.g., Griffin , 481 S.W.2d at 840 ("We simply ... do not find a violation of the spirit and intent of [ article 35.26 ] under the unique factual situation of this case."); Tillman , 2001 WL 543666, at *3–4 (noting "[t]he spirit and intent of the statute has been preferred over the mandatory language in a number of cases"); Brossette , 885 S.W.2d at 842–43.
Appellant, in his brief, attempts to focus on the "spirit and intent" of Texas Code of Criminal Procedure article 35.26(a) by asserting that "[t]he spirit and intent of the statute is that the first twelve non-stricken jurors shall be the factfinders of a case." Yet, this argument does not look at the "spirit and intent" of article 35.26(a). It relies solely on the purported mandatory language of the statute. Cf. Brossette v. State , 885 S.W.2d 841, 842–43 (Tex. App.—Dallas 1994, pet. ref'd). (defendant asserted language of article 35.26(a) did not "provide the trial court with any discretion as to the jury's composition after peremptory challenges [were] made").
Here, the trial court clerk testified that, in determining which twelve persons would sit on the jury, she reviewed the parties' strike lists that showed which prospective jurors had been struck by either the State or appellant or by agreement of the parties. She then tried to "choose [the] first 12" names of those persons who had not been struck. While reviewing the State's and appellant's strike lists, she "overlooked ... one person," juror number 39, who had not been struck by the State or by appellant or by agreement of the parties. It was an inadvertent mistake. Based on the parties' strike lists, the first twelve persons who were not struck included juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 39 , and 41. But because the clerk overlooked juror number 39 in compiling the list of the "first twelve names," the prospective jurors called to sit on the jury were juror numbers 10, 20, 21, 23, 25, 26, 27, 31, 34, 35, 41, and 45. Neither the State nor appellant had struck juror number 45 on their strike lists. Although appellant objected and requested a mistrial because of the "clerical error," the trial court denied the motion for mistrial.
Like the court of appeals in Bagwell , we conclude that there has not been a violation of the spirit and intent of Texas Code of Criminal Procedure article 35.26(a) in the jury selection process in this case. See Bagwell , 657 S.W.2d at 527 ; see also Griffin , 481 S.W.2d at 840 ; Tillman , 2001 WL 543666, at *3–4 ; Brossette , 885 S.W.2d at 842–43 (noting appellate court's decision was in keeping with spirit and intent of article 35.26(a) ).
Still yet, even if the jury selection process here violated article 35.26(a), appellant must show sufficient harm to warrant reversal. See Cooks v. State , 844 S.W.2d 697, 725–27 (Tex. Crim. App. 1992) ; Griffin , 481 S.W.2d at 840 (violation of article 35.26 does not per se constitute reversible error); Brossette , 885 S.W.2d at 842–43 ; see also Lewis v. State , 815 S.W.2d 560, 563 (Tex. Crim. App. 1991) ; Jackson v. State , 745 S.W.2d 4, 17 (Tex. Crim. App. 1988) (defendant failed to demonstrate harm by showing he was forced to accept objectionable juror as result of trial court's failure to comply with excuse provisions of Texas Code of Criminal Procedure chapter 35); Neal v. State , 689 S.W.2d 420, 424–25 (Tex. Crim. App. 1984) ; Arnold , 2006 WL 40744, at *5 ; Smith v. State , 149 S.W.3d 667, 673 (Tex. App.—Austin 2004, pet. ref'd) ("The court of criminal appeals has consistently required a showing of harm or prejudice for reversal in cases involving jury-selection procedures."); Richardson v. State , 981 S.W.2d 453, 456 n.3 (Tex. App.—El Paso 1998, pet. ref'd) ; Gentry v. State , 881 S.W.2d 35, 43 (Tex. App.—Dallas 1994, pet. ref'd) ("An appellant must show harm to obtain reversal based on the trial court's failure to comply with statutory requirements for selection of a jury panel."). Appellant does not assert, nor does he show, that he was forced to take an objectionable juror or that the jury that heard the case was not fair and impartial. See Griffin , 481 S.W.2d at 840 ; Arnold , 2006 WL 40744, at *5 ; see also Jackson , 745 S.W.2d at 17. Appellant had a pool of forty-seven venire members from which to select a jury. Even more specifically, the trial court informed the State and appellant that given the number of prospective jurors that had been excused by agreement and the number of peremptory strikes allotted to the State and appellant, the main twelve-member jury panel would be selected from those persons still eligible from juror numbers 1 through 47. Appellant knew when he made his peremptory strikes that juror number 45 was one of the prospective jurors that could be placed on the jury and appellant did not strike juror number 45, who was ultimately seated on the jury. See Griffin , 481 S.W.2d at 840 ("There is no showing that [defendant] was forced to proceed with an unacceptable juror."); Brossette , 885 S.W.2d at 843 (defendant knew when he made strike that any one of thirty-one individuals could be placed on jury and he chose not to strike two jurors ultimately seated; it was reasonable to conclude that those two jurors were acceptable to defendant). We conclude that appellant has not shown sufficient harm to warrant reversal.
An objectionable juror is one against whom such cause for challenge exists as would likely affect his competency or his impartiality in the trial. See Cooks v. State , 844 S.W.2d 697, 727 (Tex. Crim. App. 1992) ; Brossette , 885 S.W.2d at 843 n.2.
The trial court also informed the State and appellant that the alternate juror would be selected from either juror numbers 48, 49, or 50. The trial court gave each party an additional peremptory strike to use for the potential alternate jurors.
We hold that the trial court did not err in denying appellant's motion for mistrial.
We overrule appellant's first issue.
Lesser-Included Offense
In his second issue, appellant argues that the trial court erred in failing to instruct the jury on the lesser-included misdemeanor offense of deadly conduct because "[i]n light of the facts and evidence presented at ... trial, a rational juror could have found that [a]ppellant was guilty only of reckless conduct and convicted him of the lesser offense."
See Tex. Penal Code Ann. § 22.05(a), (e).
A trial court has an absolute duty to prepare a jury charge that accurately sets out the law applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14 ; Oursbourn v. State , 259 S.W.3d 159, 179 (Tex. Crim. App. 2008) ; see also Vasquez v. Stat e, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) ("The purpose of the trial [court's] jury charge is to instruct the jurors on all of the law that is applicable to the case.").
We review a trial court's refusal to include a lesser-included offense instruction in its charge to the jury for an abuse of discretion. See Threadgill v. State , 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) ; Steele v. State , 490 S.W.3d 117, 126 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Whether a defendant is entitled to a jury instruction on a lesser-included offense involves a two-step analysis. Safian v. State , 543 S.W.3d 216, 219–20 (Tex. Crim. App. 2018) ; Moore v. State , 969 S.W.2d 4, 8 (Tex. Crim. App. 1998) ; Steele , 490 S.W.3d at 127. Under the first step, we must decide whether the offense is a lesser-included offense of the offense charged, as defined in Texas Code of Criminal Procedure article 37.09. See TEX. CODE CRIM. PROC. ANN. art. 37.09 ; Moore , 969 S.W.2d at 8 ("The first step is to apply the relevant definition to the offense charged and the offense in question."); Steele , 490 S.W.3d at 127. This is a question of law that does not depend on the evidence produced at trial. Safian , 543 S.W.3d at 219–20 ; Steele , 490 S.W.3d at 127. An offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09.
Under the second step, we must evaluate the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant, if he is guilty, is guilty only of the lesser-included offense. Safian , 543 S.W.3d at 220 ; Moore , 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore , 969 S.W.2d at 8. And there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Bullock v. State , 509 S.W.3d 921, 925 (Tex. Crim. App. 2016) ; Moore , 969 S.W.2d at 8. Any evidence that the defendant is guilty only of the lesser-included offense is sufficient to entitle the defendant to a jury charge on the lesser-included offense. Moore , 969 S.W.2d at 8.
Appellant first argues that he was entitled to a jury instruction on the lesser-included misdemeanor offense of deadly conduct because "when an indictment charges a defendant with intentionally or knowingly threatening bodily injury to a complainant with a deadly weapon, misdemeanor deadly conduct is established by proof of the same or less than all the facts to establish aggravated assault." The State concedes, in its briefing, that the first-step in the analysis is satisfied here, stating that the misdemeanor offense of "[d]eadly conduct is a lesser-included offense of aggravated assault by threat when a deadly weapon is used or exhibited." See Safian , 543 S.W.3d at 217, 219–24 (holding, as matter of law, misdemeanor offense of deadly conduct "is a lesser-included offense of aggravated assault by threat when it is alleged that the defendant used a deadly weapon during the commission of the offense"); Bell v. State , 693 S.W.2d 434, 438–39 (Tex. Crim. App. 1985). Thus, we now must determine whether there is some evidence that appellant, if guilty, is guilty only of the lesser-included misdemeanor offense of deadly conduct.
See Tex. Penal Code Ann. § 22.05(a) ("A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury."), (e) ("An offense under [s]ubsection (a) is a [c]lass A misdemeanor.").
Here, the indictment alleged that appellant, on or about November 24, 2017, "did then and there unlawfully, intentionally and knowingly threaten [the complainant], a member of [appellant's] family, a member of [appellant's] household and a person with whom [appellant] had a dating relationship, ... with imminent bodily injury by using and exhibiting a deadly weapon, namely, a firearm." See Tex. Penal Code Ann. § 22.02(a)(2) ; see also id. § 22.01(a)(2).
Appellant argues that "[t]here is some evidence that [he] is only guilty of [the lesser-included misdemeanor offense of] deadly conduct" because there is evidence that "[a]ppellant was guilty of acting recklessly instead of intentionally or knowingly."
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." TEX. PENAL CODE ANN. § 6.03(a). 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," and 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." Id. § 6.03(b). A person acts recklessly "with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. § 6.03(c). To be "reckless," a person would have to be aware that his conduct created a substantial and unjustifiable risk, and he would have to consciously disregard that risk. See id. ; see also Duncan v. State , No. 04-10-00870-CR, 2011 WL 3918888, at *2 (Tex. App.—El Paso Sept. 7, 2011, pet. ref'd) (mem. op., not designated for publication).
Here, the evidence shows that appellant acted intentionally or knowingly, and not recklessly. On November 24, 2017, appellant threatened to kill the complainant by telephone and text message. Later that day, appellant came to the home, where the complainant was living, carrying a firearm. When he and the complainant went into the complainant's bedroom, he took out his firearm and pointed it at the complainant's forehead. Cf. Love v. State , No. 12-18-00239-CR, 2019 WL 3940800, at *5–6 (Tex. App.—Tyler Aug. 21, 2019, pet. ref'd) (mem. op., not designated for publication) (defendant not entitled to instruction on deadly conduct offense where testimony demonstrated he acted intentionally and knowingly by pointing firearm at complainant); Bueno v. State , No. 05-18-00940-CR, 2019 WL 3212151, at *1, *3–4 (Tex. App.—Dallas July 9, 2019, no pet.) (mem. op., not designated for publication) (no evidence from which jury could rationally conclude defendant acted recklessly rather than intentionally when complainant testified defendant pointed firearm at her); Benavides v. State , No. 08-07-00193-CR, 2009 WL 3031175, at *1 (Tex. App.—El Paso Sept. 23, 2009, pet. ref'd) (mem. op., not designated for publication). Appellant said, "[Y]ou think I'm fucking playing with you?" and "I told you what I was going to do," referring to a text message he sent to the complainant earlier that day saying that "he was going to come and kill [her]." See Timms v. State , No. 05-13-00559-CR, 2014 WL 2447709, at *1–3 (Tex. App.—Dallas May 30, 2014, pet. ref'd) (mem. op., not designated for publication) (testimony of defendant's deliberate conduct with evidence defendant previously threatened to stab complainant could not support "a rational conclusion that [defendant's] conduct could only have been reckless"). The complainant felt scared, feared that she was in imminent harm, and thought that appellant would shoot her.
After the complainant's sister and brother-in-law entered the complainant's bedroom, appellant told them, "[S]he thinks she's going to play with me," referring to the complainant. While the complainant was on the floor of the bedroom, appellant slapped her across the face. Later, appellant tried to pull the complainant out the front door of the house with him, pulling out portions of the complainant's hair in the process. After the complainant, her sister, and her brother-in-law managed to get appellant out of the house, he fired a shot at the front door.
Even in cases where the evidence is weak or contradicted, there must still be some evidence directly germane to the lesser-included offense for the fact finder to consider before an instruction on a lesser-included offense is warranted. Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) ; Hamilton v. State , 563 S.W.3d 442, 446 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd). Here, the evidence must establish that the lesser-included misdemeanor offense of deadly conduct was a valid, rational alternative to the charged offense of aggravated assault. Rice v. State , 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Cavazos v. State , 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
Because there was no evidence from which a rational juror could infer that appellant's actions were merely reckless, rather than knowing or intentional, appellant was not entitled to an instruction on the lesser-included misdemeanor offense of deadly conduct. See Whitfield v. State , 408 S.W.3d 709, 718–19 (Tex. App.—Eastland 2013, pet. ref'd). We hold that the trial court did not err in not instructing the jury on the lesser-included misdemeanor offense of deadly conduct. See Dixon v. State , 358 S.W.3d 250, 258 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("We decline to hold that the trial court abused its discretion ... when the testimony as a whole does not negate intent....")
In an attempt to support his argument, appellant points to two statements that Trey, the complainant's brother-in-law, made during his testimony. But appellant takes these two statements out of context. Viewed in context, they do not establish that appellant acted recklessly rather than intentionally or knowingly. See, e.g., Bueno v. State , No. No. 05-18-00940-CR, 2019 WL 3212151, at *4 (Tex. App.—Dallas July 9, 2019, no pet.) (mem. op., not designated for publication); see also Ramos v. State , 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (statements must be viewed in context of entire record); Dixon v. State , 358 S.W.3d 250, 258 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("The entire evidence must be examined in context.").
We overrule appellant's second issue.
Sufficiency of Evidence
In his fourth issue, appellant argues that the evidence is insufficient to support his conviction for aggravated assault of a family member because the State "failed to prove beyond a reasonable doubt that [a]ppellant intentionally or knowingly threatened [the complainant] with a firearm on November 24, 2017" and "the great weight of the evidence was not credible."
To assert an issue on appeal, an appellant's brief must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal if he does not adequately brief that issue by not providing supporting arguments, substantive analysis, and appropriate citations to authorities and to the record. See id. ; Lucio v. State , 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011) ; Busby v. State , 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) ; Cardenas v. State , 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (defendant inadequately briefed complaint where he neglected to present argument with citation to appropriate authority); see also Ray v. State , 176 S.W.3d 544, 553 n.7 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd).
As the Texas Court of Criminal Appeals has emphasized, an appellate court has no obligation to construct and compose issues, facts, and arguments with appropriate citations to authorities and the record for the appellant. See Wolfe v. State , 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) ; Busby , 253 S.W.3d at 673. A brief that fails to apply the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1 and presents nothing for our review. See Swearingen v. State , 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). These rules apply to a defendant's complaint that the evidence is insufficient to support his conviction. See McDuff v. State , 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) ; Taylor v. State , 558 S.W.3d 215, 218–19 (Tex. App.—Texarkana 2018, no pet.) ; see also Barrera v. State , No. 01-03-00102-CR, 2004 WL 637954, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 1, 2004, no pet.) (mem. op., not designated for publication).
Appellant, in his brief, provided this Court with no substantive argument, analysis, or citation to appropriate authorities or appropriate portions of the record. See Linney v. State , 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal of petition for discretionary review) ("Failure to provide substantive legal analysis—to apply the law to the facts—waives the point of error on appeal. If the appealing party fails to meet its burden of adequately discussing its points of error, this Court will not do so on its behalf." (internal citations omitted)); Swearingen , 101 S.W.3d at 100 (appellant who does not apply law to facts fails to adequately brief point of error); Vuong v. State , 830 S.W.2d 929, 940 (Tex. Crim. App. 1992) (complaint inadequately briefed where appellant failed to provide citation to any authority supporting his complaint); see also Taylor , 558 S.W.3d at 218–19 (appellant waived sufficiency complaint where brief failed to include analysis, argument, or citation to record in support of contention evidence insufficient to support conviction; appellant did not identify which elements of offense were lacking evidentiary support and omitted any discussion about how evidence adduced at trial failed to satisfy State's burden of proof). Thus, we hold that appellant has waived his complaint that the evidence is insufficient to support his conviction.
Appellant only cited to portions of the record from the punishment phase of trial, which are irrelevant to his sufficiency-of-the-evidence complaint. See Barfield v. State , 63 S.W.3d 446, 450 (Tex. Crim. App. 2001) (in bifurcated trial before jury on plea of not guilty, "our consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt" (internal quotations omitted)); Munoz v. State , 853 S.W.2d 558, 560 n.3 (Tex. Crim. App. 1993) ("In order to determine the sufficiency of the evidence to support a conviction, an appellate court is only authorized to view the punishment phase of the trial to determine whether a defendant has, by admitting elements of the offense, waived his right to complain of error during the guilt-innocence phase. Absent a judicial confession by the defendant, evidence from the punishment phase of a trial will not be considered in determining the sufficiency of the evidence to support a conviction. " (emphasis added)).
Admission of Punishment Evidence
In his third issue, appellant argues that the trial court erred in admitting into evidence, during the punishment phase of trial, State's Exhibits 13 and 14 because the State failed to comply with Texas Code of Criminal Procedure article 39.14.
State's Exhibits 13 and 14 are audio recordings of telephone calls that the complainant made to HCCO, Precinct 5, in December 2017, after the aggravated assault on November 24, 2017. They concern subsequent behavior by appellant in December 2017. Although the attorneys for the parties referred to these exhibits as "911 calls," this is not an accurate characterization of the exhibits.
See Tex. Code Crim. Proc. Ann. art. 39.14 (discovery). Appellant does not specify in his brief the portion of Texas Code of Criminal Procedure article 39.14 with which he believes the State did not to comply. The gravamen of appellant's complaint appears to be that the State failed to comply with article 39.14's disclosure requirements. See id. art. 39.14(a) ; see also Glover v. State , 496 S.W.3d 812, 814–15 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). To the extent appellant attempts to argue that the trial court erred in admitting State's Exhibits 13 and 14 because they were not properly authenticated, he has not preserved that complaint for appellate review. See Tex. R. App. 33.1(a); Lovill v. State , 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) ; Griggs v. State , 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) ; Walker v. State , 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd) ; see also Schultze v. State , 177 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) ("A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial.").
Texas Code of Criminal Procedure article 37.07, which governs the admissibility of evidence during the punishment phase of a non-capital trial, allows the trial court to admit evidence of any matter relevant to sentencing. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) ; Erazo v. State , 144 S.W.3d 487, 491 (Tex. Crim. App. 2004).
Even were we to presume, for purposes of this opinion, that the trial court erred in admitting State's Exhibits 13 and 14 into evidence during the punishment phase of trial, generally, the erroneous admission of evidence constitutes non-constitutional error that is subject to a harm analysis. See Coble v. State , 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) ; Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) ; see also Paroline v. State , 532 S.W.3d 491, 502 (Tex. App.—Texarkana 2017, no pet.) ("If the trial court errs in admitting extraneous-offense evidence in the punishment phase, it is non-constitutional error."); Portis v. State , No. 10-15-00152-CR, 2016 WL 7478030, at *3 (Tex. App.—Waco Dec. 28, 2016, no pet.) (mem. op., not designated for publication) (assuming complained-of testimony erroneously admitted during punishment phase and addressing whether defendant was harmed by admission of evidence); Roethel v. State , 80 S.W.3d 276, 281–83 (Tex. App.—Austin 2002, no pet.) (considering whether trial court's admission of evidence during punishment phase of trial was harmful). Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See TEX. R. APP. P. 44.2(b) ; Barshaw v. State , 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011) ; Schultze v. State , 177 S.W.3d 26, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal conviction for non-constitutional error if, after examining the record, we have fair assurance that the error did not influence the jury, or had but a slight effect. Barshaw , 342 S.W.3d at 93–94.
We review the entire record to determine the effect or influence of the wrongfully admitted evidence on the jury's decision. Id. ; Motilla v. State , 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). In assessing the likelihood that the jury's decision was improperly influenced, we consider the testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Barshaw , 342 S.W.3d at 94 ; Motilla , 78 S.W.3d at 355–56. The weight of evidence of the defendant's guilt is also relevant in conducting the harm analysis. Neal v. State , 256 S.W.3d 264, 285 (Tex. Crim. App. 2008) ; see also Motilla , 78 S.W.3d at 355–60 ; Kamen v. State , 305 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). And we may consider closing statements and voir dire, jury instructions, the State's theory, any defensive theories, and whether the State emphasized the alleged error. Motilla , 78 S.W.3d at 355–56 ; Paroline , 532 S.W.3d at 502 ; Hankins v. State , 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref'd).
Here, appellant has failed to adequately brief his assertion that he was harmed by the admission of State's Exhibits 13 and 14. See Cardenas , 30 S.W.3d at 393 (holding defendant waived issue on appeal because he inadequately briefed issue by failing to address whether alleged error was harmless); Wilson v. State , 473 S.W.3d 889, 900–01 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) ("Here, we do not address whether the trial court erred in admitting the complained-of ... evidence because even were we to conclude that the trial court erred in admitting such evidence, appellant, in his brief, does not argue that he was harmed by its admission."); see also Alohaneke v. State , No. 01-18-00102-CR, 2019 WL 6314899, at *7–8 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019, pet. ref'd) (mem. op., not designated for publication) (defendant waived complaint trial court erred in admitting exhibits where brief contained no substantive analysis or citation to authorities to show that he was harmed by purported erroneous admission).
As noted above, to assert an issue on appeal, an appellant's brief must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal if he does not adequately brief that issue by not providing supporting arguments, substantive analysis, and appropriate citations to authorities and to the record. See id. ; Lucio , 351 S.W.3d at 896–97 ; Busby , 253 S.W.3d at 673 ; Cardenas , 30 S.W.3d at 393 (defendant inadequately briefed complaint where he neglected to present argument with citation to appropriate authority); Wilson , 473 S.W.3d at 900–01. A brief that fails to apply the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1 and presents nothing for our review. See Swearingen , 101 S.W.3d at 100.
Although appellant argues that the trial court erred in admitting State's Exhibits 13 and 14 into evidence during the punishment phase of trial, in his brief, appellant provides only two conclusory sentences, without citation to authority, asserting that he "suffered harm as a result of the trial court's admission of" State's Exhibits 13 and 14 because "the recordings were on the jury's mind while they deliberated." See King v. State , 17 S.W.3d 7, 23 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) ("Conclusory arguments which cite no authority present nothing for our review."); see also Brown v. State , Nos. 01-18-00594-CR, 01-18-00595-CR, 2020 WL 4210630, at *4 (Tex. App.—Houston [1st Dist.] July 23, 2020, no pet.) (mem. op., not designated for publication) (defendant waived appellate complaint where brief contained single conclusory sentence without citation to appropriate authority); Linney v. State , 401 S.W.3d 764, 783 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) ("We need not decide th[e] issue ... because [defendant's] conclusory statement that the cumulative harm of the trial court's errors adversely affected his substantial rights is insufficient to maintain his burden to adequately brief the point of error."). Appellant's brief contains no argument, explanation, substantive analysis, or citation to authorities to show that he was harmed by the trial court's purported erroneous admission of the State's exhibits. See Wyatt v. State , 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) ("We will not make appellant's arguments for him...."); Alvarado v. State , 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (where appellant's point of error inadequately briefed, appellant "presents nothing for our review").
We hold that appellant waived his complaint on appeal that the trial court erred in admitting into evidence State's Exhibits 13 and 14 during the punishment phase of trial. See, e.g., Cardenas , 30 S.W.3d at 393 (holding issue inadequately briefed where "appellant d[id] not address the question of whether the alleged error ... was harmless"); Alohaneke , 2019 WL 6314899, at *7–8 (defendant waived complaint trial court erred in admitting exhibits where brief contained no substantive analysis or citation to authorities to show that he was harmed by purported erroneous admission); Wilson , 473 S.W.3d at 900–01 (defendant waived complaint trial court erred in admitting certain evidence where he failed to "identify[ ] the harm that he suffered as a result of the admission of the complained-of evidence"). Conclusion
We affirm the judgment of the trial court.