Opinion
No. 05-04-00401-CR
Opinion issued October 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10 of Dallas County, Texas, Dallas County, Texas, Trial Court Cause No. MA03-37125-L. Affirmed.
OPINION
Appellant Ntiense Nnanenyin Essien appeals his court-assessed 180-day jail sentence after a jury found him guilty of a domestic violence assault. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). Appellant complains only that the trial court erred by including in the application paragraph of the jury charge an instruction on "recklessly." Concluding no reversible error is shown, we affirm. The complainant and appellant were living together. On September 5, 2003, appellant came home early from work. Appellant began to question the complainant about rumors he had heard about her and one of her coworkers. He punched the complainant in the face, knocking off her glasses, and knocked her to the bed. The complainant suffered pain and a black eye as a result of the assault. Appellant testified in his own defense at trial. Appellant admitted he came home early on September 5, 2003, because of rumors he had heard about the complainant having an affair. According to appellant, he found the complainant in bed with another man. Appellant testified that upon seeing this, he went back to work. He returned two hours later to find the complainant crying. Appellant denied ever hitting the complainant at any time. The complainant's father testified that in August of 2003 he had observed bruises on the complainant's arm. On September 6, 2003, when she moved back in with him, he observed that the complainant had a black eye. The information charged, in relevant part, that on or about September 5, 2003, appellant "did unlawfully then and there intentionally and knowingly and recklessly cause bodily injury to another, namely: JAMIE COOKSIE, hereinafter called complainant, by striking complainant's head with defendant's hand. . . ." Without objection, the jury was charged, in relevant part, as follows:
. . . if you believe from the evidence beyond a reasonable doubt, that the defendant, NTIENSE NNANENYIN ESSIEN, on or about the 5th day of September, 2003, . . . as alleged in the Information, did unlawfully then and there intentionally or knowingly or recklessly cause bodily injury to another, namely: JAMIE COOKSIE, . . . by striking complainant's head with defendant's hand, then you will find the defendant, Ntiense Nnanenyin Essien, guilty as charged in the Information. . . .There was no objection to the charge. On appeal, appellant claims the trial court reversibly erred by including in its application portion of the jury charge an instruction on "recklessly" because there is no evidence to support a verdict of guilt based on that theory. Appellant concedes that a jury finding that he committed the assault either knowingly or intentionally is "wholly supported by the testimony"; however, he claims a jury finding of recklessly committing the assault is "totally unsupported by the evidence." Jury charge error is reviewed under the standards set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). See Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). Under that standard, absent an objection, jury charge error, if any, is only reversible if it harmed appellant to the extent that he was denied a fair and impartial trial. Almanza, 683 S.W.2d at 171. Here because appellant did not object to the jury charge, he must show he was denied a fair and impartial trial to be entitled to a reversal of his conviction. Marvis v. State, 36 S.W.3d 878, 882 (Tex.Crim.App. 2001). Pleading alternate mental states in the conjunctive is appropriate. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). And even though the information charges in the conjunctive, when instructing the jury, it is proper to do so in the disjunctive. Id. When the jury is instructed in the disjunctive, if it finds the evidence sufficient to support a finding of guilt under any one of the theories submitted, it is proper for the jury to return a general verdict of guilt. See Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). The evidence in this case supports the jury's general verdict of guilt on one or more of the three alternative theories alleged. Consequently, no error is shown. Id. In Reed v. State, 117 S.W.3d 260, 265 (Tex.Crim.App. 2003), the Court held it was error to include the culpable mental state of recklessly in the court's charge where that mental state was not alleged in the indictment. That is not the case here, however. The information alleged recklessly, so charging the jury on that theory was proper. No error having been shown, we affirm.