Nos. 05-04-00032-CR, 05-04-00033-CR
Opinion issued February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-01767-T F03-01381-T. Affirmed.
Before Chief Justice THOMAS and Justices LANG and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
Appellant Lawrence William Hitchery was indicted for, pleaded nolo contendere to, and pursuant to a negotiated plea bargain, was placed on deferred adjudication community supervision for, the offense of misapplication of fiduciary property in trial court cause number F00-01767-T (appellate cause number 05-04-00032-CR). While on community supervision, appellant was charged with two new offenses: driving while intoxicated (DWI) and aggravated assault, trial court cause number F03-01381-T (appellate cause number 05-04-00033-CR). The State moved to adjudicate appellant's guilt based on the two new offenses and also because appellant had failed to perform community service as directed by the court. Appellant pleaded true to violating his community supervision by committing the offense of DWI and by failing to perform community service; however, he pleaded not true to the allegation that he committed aggravated assault. Appellant waived a jury in the aggravated assault case, pleaded not guilty before the trial court to that offense, and consented to have both the State's motion to adjudicate in the misapplication case and the trial before the court in the aggravated assault case heard together. After hearing evidence, in the aggravated assault case the trial court found appellant guilty of the lesser-included offense of misdemeanor assault and assessed appellant's punishment at one year in the Dallas County Jail and a $1000 fine. The trial court also found appellant had violated the terms of his community supervision in the misapplication case, adjudged appellant guilty of that offense, and assessed his punishment at two years' confinement in the State Jail Division of the Texas Department of Criminal Justice. Appellant appeals from both judgments, raising two points of error in each case. Points of error one and two relate only to the assault case and points of error three and four relate only to the misapplication case. For reasons that follow, we affirm each conviction.
Hereinafter, for the sake of brevity, we will refer to this case only as the "misapplication" case.
The DWI case is not a part of these appeals.
Misapplication of Fiduciary Property Appellate cause number05-04-00032 (trial court number F00-01767-T)
In appellant's point of error number four, he complains that his original plea to the offense of misapplication, which he entered on July 16, 2001 before a Dallas County Magistrate and which was adopted by the trial court on the same day by a signature stamp, was invalid because the record does not reflect the district court properly reviewed the magistrate's findings. Appellant contends that because his original plea was invalid, his deferred adjudication community supervision should not have been revoked and the judgment in the misapplication case should be reversed and remanded for a new trial. Appellant cites only two authorities: section 54.312 of the Texas Government Code (providing for referring court to review and adopt magistrate's acts), and Omura v. State, 730 S.W.2d 766 (Tex.App.-Dallas 1987, pet. ref'd) (holding that district court must review actions of magistrate). The State responds that this Court has no jurisdiction to consider the merits of appellant's claim raised in point of error four. Because appellant did not appeal from the July 16, 2001 order placing him on deferred adjudication community supervision, the State contends appellant's appeal from the 2003 judgment is untimely on the issue of the validity of his original 2001 plea. Ordinarily, a defendant cannot claim error in the original plea proceeding when an appeal is not taken at the time the conditions of deferred adjudication are originally imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). There are, however, exceptions to this general rule. Whether an exception applies depends upon whether appellant's complaint is one which, if sustained, would render the judgment void and, therefore, subject to collateral attack. Deifik v. State, 58 S.W.3d 794, 797 (Tex.App.-Fort Worth 2001, pet. ref'd) (citing Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001)). This Court has previously held that a trial court's failure to review a magistrate's action is not fundamental error subject to collateral attack. Christian v. State, 865 S.W.2d 200, 201 (Tex.App.-Dallas 1993, pet. ref'd). Therefore, because appellant did not timely appeal from the 2001 order placing him on deferred adjudication, and no exception entitles appellant to collaterally attack the judgment, this Court has no jurisdiction over appellant's complaint. Manuel, 994 S.W.2d at 662; Christian, 865 S.W.2d at 201. We therefore dismiss point of error four for want of jurisdiction. Moreover, even if we had jurisdiction, we conclude appellant's complaint is without merit. A presumption of regularity applies to the proceedings about which appellant complains. Christian, 865 S.W.2d at 202. To be entitled to a reversal, the appellant must overcome that presumption of regularity by presenting a record that affirmatively reflects the trial judge did not review the magistrate's actions. This record does not. The adoption order signed by the trial judge recites that the court "has reviewed" the magistrate's actions and "specifically adopts and ratifies" the magistrate's actions. Moreover, the 2001 order placing appellant on deferred adjudication, likewise, contains such language. Appellant has not overcome the presumption of regularity. Thus, even if we had jurisdiction, appellant's complaint lacks merit. The only other point appellant raises in the misapplication case is that it should be reversed and remanded for a new punishment hearing because the trial court reversibly erred by not holding a separate punishment hearing after adjudicating appellant's guilt. Appellant relies on Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) (per curiam). The State responds that this complaint has not been preserved for review and should, therefore, be overruled. In Issa, the court of criminal appeals held that a defendant "is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence." Id. That statutory right, however, is one that can be waived. See id. Therefore, to successfully complain on appeal about the lack of a separate punishment hearing, one must first have raised the complaint in the trial court by way of a timely objection or, if there was no opportunity to object, a timely-filed motion for new trial. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). The record before us reflects that appellant neither objected in the trial court to the lack of a separate punishment hearing nor raised the issue in a motion for new trial. Consequently, nothing has been presented for our review. See id. We overrule appellant's point of error three. Assault Appellate cause number 05-04-00033-CR (trial court causenumber F03-01381-T)
In two separate points of error, appellant contends the evidence in this case is factually insufficient to sustain his conviction for the lesser-included offense of misdemeanor assault for two reasons: it is insufficient to show he could have either physically committed the offense or that he had the requisite criminal intent to do so. A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Pen. Code Ann. § 22.01 (a)(1) (Vernon Supp. 2004-05). The complainant, appellant's spouse of some eighteen years, testified that on May 12, 2003, she and her three sons got home from church at about 9:15 p.m. After she put the boys to bed, she put on her pajamas, got her keys, and went out through the back yard to get the mail. As she walked back through the gate with the mail cradled in one arm and the keys in the other hand, she heard something that caused her to turn around. As she shut the gate, she saw appellant, who had been a wrestler in high school, "standing right there in a wrestler's crouch." After he said, "[w]hy did you lie to the judge and have me arrested two times," appellant "kind of came at" her and "took the wrestlers' take down." "He did a take down" on her. Appellant, who weighs a lot more than complainant, took her down by "hitting [her] in the right leg, which was her weaker leg because of surgery performed nine months before. The next thing complainant knew, she was face down on the ground. Complainant thought appellant hit her with the stun gun in the nipple first. Then he put his right knee in the small of her back, grabbed her around the throat and squeezed her until she saw stars. She couldn't breathe; she was trying to scream, but couldn't. While appellant had her in a choke hold, he used his left hand to shoot her with a stun gun numerous times. She lost the use of the part of her body hit by the stun gun. She could not move and was "blacking out some towards the end." Appellant's actions hurt her. When complainant hit the panic button on her car key chain, appellant released her and left. The police came. Rather than going to the hospital, complainant called her brother, a physician, who came to her house and gave her medication. Appellant's medical records were admitted into evidence, without objection. The sponsoring witness for those records was Dr. Lisa Clayton, a forensic psychiatrist. Those records reflected that appellant had been seen by another psychiatrist twice in February before the offense in May. He had been diagnosed with bipolar disorder and alcohol dependence. They also showed he had been treated at an emergency room for a stab wound in the left arm on May 11, 2003, the day before the offense. The stab wound was sutured with eleven stitches. An entry in the medical records also reflected that on May 15, 2003, appellant attempted suicide and was treated for an overdose of Vicodin, and that appellant was in a psychotic mixed manic state when the offense occurred. Clayton opined that with the stab wound on the bicep muscle, appellant could not have moved his left arm without severe pain and would have had limited mobility. She further testified it was "highly unlikely"-though not impossible-that a person in appellant's condition could have both choked and stunned someone simultaneously. The State presented no medical expert testimony. Standard of Review
The appellate standard of review for factual insufficiency of the evidence is well known to the parties. The most recent pronouncement by the court of criminal appeals on the factual sufficiency standard of review is found in Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004). Zuniga requires an appellate court to analyze all of the evidence in a neutral light in determining the ultimate issue: whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. We have analyzed the evidence in this case applying the Zuniga standard. Appellant's Admission of Sufficiency
Appellant was charged with intentionally, knowingly, and recklessly committing aggravated assault by use or exhibition of a deadly weapon. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2004-05). However, appellant was found guilty by the trial court of the misdemeanor offense of assault. See id. § 22.01(a)(1). Although appellant acknowledges that complainant's testimony was some evidence of his guilt, he nevertheless contends there was substantial controverting medical evidence that the recently-sustained stab wound to his left arm would have rendered him physically incapable of committing the offense in the way that complainant described. Because the medical evidence was not refuted by the State, appellant contends he is entitled to a reversal of his conviction because the contrary evidence greatly outweighed the evidence of his guilt. The State responds that appellant admitted at trial that the facts supported his conviction for misdemeanor assault, thus he is estopped from challenging the sufficiency of the evidence on appeal. Moreover, the State contends, even if appellant is not so estopped, his factual sufficiency complaint is without merit. During his closing argument before the trial court, appellant's counsel argued that appellant did not use or exhibit a deadly weapon because "a stun gun by legal definition is not a deadly weapon." He further argued that appellant's placing his arm around the complainant's neck was a "perfectly safe" lateral vascular restraining hold; moreover, appellant was not capable of causing death or serious bodily injury because of the recently-sustained stab wound to his left arm. After defense counsel urged the trial court to find appellant not guilty of aggravated assault, he stated, "Of course, I do believe the facts support a finding of assault." After defense counsel reminded the trial court that appellant had pleaded true to the first and third grounds of the State's motion to adjudicate, he stated, "And my argument, we are pleading true to yet another violation or offense out of that assault, which is a lesser included in the Motion to Revoke." The State contends that because appellant successfully argued at trial he was guilty only of the lesser-included offense of assault, he should not be permitted to complain on appeal the evidence is insufficient to support his conviction for misdemeanor assault. A defense counsel's concession at trial can be a binding judicial admission of an appellant's guilt. See United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (holding a defendant was bound by his attorney's admission during closing argument); cf. Jones v. State, 119 S.W.3d 766, 784 (Tex.Crim.App. 2003) (holding a defendant could not complain on appeal about the trial court having done what he suggested), cert. denied, 124 S. Ct. 2836 (2004); Arroyo v. State, 117 S.W.3d 795, 798 (Tex.Crim.App. 2003) (recognizing a party may be estopped from asserting a claim inconsistent with that party's prior conduct). Based on the record, the above authorities, and particularly defense counsel's argument implying a plea of true to, and inviting the trial court to find his client guilty of, the lesser-included offense of misdemeanor assault, we conclude appellant is estopped from challenging on appeal the factual sufficiency of the evidence to support his conviction for misdemeanor assault. Moreover, even if appellant is not estopped, his factual sufficiency challenge is without merit. The indictment alleged in the conjunctive that appellant assaulted complainant in two ways: by striking her with a stun gun and by choking her with his hand and arm. The complainant testified appellant both choked her and shot her with a stun gun, causing her pain. Appellant argues on appeal that due to the arm wound appellant sustained the day before, appellant could not have committed the offense as described by complainant. The State was not required to prove both ways of committing the assault, but, rather, was required to prove only that appellant either struck the complainant with a stun gun or that he choked her with his hand and arm. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (stating that although the State pleads in the conjunctive, it need only prove one of the methods alleged). To the extent appellant is arguing credibility of the evidence, that was the trial court's decision. Based on the evidence earlier set out, we conclude appellant's factual sufficiency complaint, even if it were reached, is without merit. We overrule appellant's first point of error. Culpable Mental State
Appellant also argues the evidence is factually insufficient to prove he had the requisite culpable mental state to commit assault. See Tex. Pen. Code Ann. § 22.01(a)(1). Appellant contends the doctor's testimony that he was in a "psychotic mixed manic state" at the time of the offense greatly outweighs any contrary evidence supporting the judgment, thus the evidence is factually insufficient to prove the requisite mens rea. Ordinarily, absent a judicial confession, the requisite mens rea is inferred from acts done and words spoken. See Ledesma v. State, 677 S.W.2d 529, 531 (Tex.Crim.App. 1984). The indictment charged appellant with "intentionally, knowingly, and recklessly" committing the assault. Thus, the State was required to prove only one of those mental states, not all of them. Although there was medical evidence that appellant suffered from a bipolar disorder and mixed mania, the State is correct that there was no evidence presented that either of those conditions prevented appellant from having the requisite mens rea to commit the assault. Based on the evidence earlier set out in this opinion, we conclude the trial court could have reasonably inferred from the acts of appellant and the circumstances surrounding the offense, including his lying in wait for the complainant, and his initial question to her about lying to the judge and getting him arrested, that the appellant had the requisite mens rea to commit the assault. Moreover, because there was no testimony about the effect of the appellant's mental condition on his ability to form the requisite mens rea, that medical testimony did not clearly outweigh the reasonable contrary inference from appellant's actions and the surrounding circumstances that he had the requisite mens rea. Thus, we would conclude the evidence was factually sufficient to prove that he had the requisite mens rea. We overrule appellant's second point of error. We affirm the trial court's judgments.