Opinion
No. 05-10-01601-CR
03-23-2012
ROBERT JACKSON, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM and Opinion Filed March 23, 2012
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-56143-T
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
A jury convicted Robert Jackson of aggravated assault involving family violence (aggravated assault/family violence), found the two enhancement paragraphs in the indictment true, and sentenced Jackson to forty years' imprisonment. In two issues, Jackson contends the evidence is insufficient to support the conviction and the trial court erred by refusing to include an instruction on a lesser-included offense in the jury charge. We affirm the trial court's judgment. Background
Jackson and Tonda Rivers began dating in the summer of 2008 and began living together in February 2009. At the end of May 2009, Rivers asked Jackson to move out of the apartment. Rivers and Jackson continued to communicate after they stopped living together. According to Rivers, Jackson was interested in resuming their relationship, but Rivers told him that she would not do so.
Rivers testified that on June 5, 2009, she returned to her apartment at approximately 7:30 p.m. and saw the front window was broken. Jackson came up the stairs behind Rivers and told her that he had seen children break the window by throwing rocks. Rivers was surprised that Jackson was at her apartment. Around midnight, Rivers went outside to see if maintenance personnel had repaired the window. Jackson again came up the stairs behind her and said he was glad the window had been fixed.
Rivers told Jackson to leave. Jackson became upset and began berating Rivers for not appreciating his efforts to "look out" for her. Rivers went into her apartment and attempted to close the door. However, Jackson pushed into the apartment behind Rivers. Jackson then yelled at Rivers, called her names, and hit her in the left eye. According to Rivers, Jackson boxed when he was younger and hit her "like a boxer." After Jackson hit her, Rivers immediately knew something was wrong with her eye. Rivers fell to the floor while Jackson hit her head and body at least fifteen times. Over the next two hours, Jackson continued to yell at Rivers and call her names. He also threatened to drown Rivers in the bathtub and asked Rivers to kill him with a kitchen knife.
Rivers repeatedly told Jackson that she needed to go the hospital to get treatment for her eye. After Jackson agreed to take her, he instructed Rivers to tell the hospital staff that she fell. Instead, Rivers wrote, "Help me[,] he beat me!!" on the hospital intake form. A hospital employee immediately escorted Rivers to a treatment room.
Jackson testified to a different version of events at trial. He claimed that he went to work at 9:00 p.m. on June 5, 2009 and received a call from Rivers approximately thirty minutes later. Rivers told Jackson that she had taken a half-bottle of "Blue Dolphins." Concerned that Rivers might have overdosed, Jackson went to Rivers's apartment. Jackson described Rivers as "swinging and fighting," "out of there," and "going crazy." He immediately put Rivers into a van and took her to the hospital. Although Rivers had some scratches on her, she did not have any swelling on her face when he took her to the hospital.
Jackson denied hitting Rivers or that he had been a boxer. He stated that, in June 2009, he was bench pressing almost 400 pounds and had twenty-six-inch arms. According to Jackson, Rivers "would be messed up bad" if he hit her. Jackson believed Rivers's allegations were due to his infidelity.
Rivers's medical records show she arrived at the hospital at 3:11 a.m. and was diagnosed with a facial contusion and a corneal abrasion. Prior to being discharged from the hospital, Rivers was given an eye test based on a "chart on the wall." Rivers's medical records state "R 20/30," "L 20/10," and "B 20/40." Although Rivers initially agreed with Jackson's counsel that these numbers indicated she had exceptional vision, she later testified she did not know the meaning of these numbers.
Rivers testified she had vision loss as a result of the assault. She did not have to wear glasses or contact lenses prior to June 5, 2009, but now has to wear a contact lens in her left eye. She can wear the contact lens for only four hours at a time and must plan her activities around the period she is wearing the contact lens. Rivers also uses eyedrops on a daily basis, but is still experiencing blurred vision in her left eye. Rivers has received treatment from Cornea Associates of Texas for her left eye. Her medical records from that treatment indicate Rivers had a corneal infection that has resolved, leaving a corneal scar. Rivers has been told it might be necessary for her to have a corneal transplant.
Rivers testified she was also told at the hospital that she had nerve damage to her face that was causing her to stutter. She was taking oral medication and doing relaxation exercises for this condition and was told it should improve over time. Rivers's medical records from the hospital do not contain a diagnosis of nerve damage.
The jury charge included instructions on aggravated assault/family violence, a first degree felony, and aggravated assault with a deadly weapon, a second degree felony. The trial court denied Jackson's request for an instruction on misdemeanor assault. The jury convicted Jackson of aggravated assault/family violence. Sufficiency of the Evidence
In his first issue, Jackson contends the evidence is insufficient to support the finding that his hands met the definition of a deadly weapon. Jackson specifically argues the evidence did not establish that Rivers suffered serious bodily injury or that Jackson "used his hand or hands in a way that was intended to cause Rivers either death or serious bodily injury" (emphasis in original).
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied (U.S. Mar. 19, 2012) (No. 11-944). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury").
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (West 2011). As charged in this case, a person commits aggravated assault if he uses or exhibits a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the person is described by section 71.0021(b), 71.003, or 71.005 of the family code. Id. § 22.02(b)(1). Jackson challenges only whether there was sufficient evidence to support a finding he used or exhibited a deadly weapon.
A "deadly weapon" is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B); see also McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). "Serious bodily injury" is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46). A hand or fist is not a deadly weapon per se, but may become a deadly weapon if used in a manner capable of causing death or serious bodily injury. Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004) (citing Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983)). Even without expert testimony, "the injuries suffered by the victim can by themselves be a sufficient basis for inferring that a deadly weapon was used." Tucker v. State, 274 S.W.3d 688, 691-92 (Tex. Crim. App. 2008); see also Lane, 151 S.W.3d at 191.
Rivers testified that Jackson hit her once in the face "like a boxer" and hit her at least fifteen times on her head and body with his hands and fists. Rivers suffered a facial contusion, nerve damage to her face that caused stuttering, and a corneal abrasion. Due to an infection, the cornea was scarred. Eighteen months after the incident, Rivers still had blurry vision and was stuttering, was taking medication for nerve damage and damage to her cornea, was using eyedrops and a contact lens in her eye, and faced the possibility of a corneal transplant.
Jackson argues that Rivers's medical records from the hospital did not show any impairment to her vision and there was no evidence that any subsequent vision loss was related to the assault. Jackson further contends there is no scientific evidence of vision injury and Rivers's "vision loss was self-reported, as opposed to forensically verifiable." In support of his argument, Jackson relies heavily on the eye examination performed at the hospital that showed "L 20/10" and further examinations at Cornea Associates that showed "20/40, 20/50, and 20/60." However, there was no explanation to the jury as to the meaning of these test results. Further, Rivers's medical records from Cornea Associates show that Rivers had a corneal scar resulting in blurry vision and that Rivers needs a contact lens due to this corneal deformity. Finally, Rivers testified she did not have vision problems prior to the assault and was still having vision problems eighteen months after the assault.
It was the role of the jury to resolve the conflicts in the evidence, and we must defer to its determination. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could find beyond a reasonable doubt that Jackson intended a use of his hand in a manner capable of causing death or serious bodily injury and that Rivers suffered serious bodily injury. We resolve Jackson's first issue against him. Lesser-Included Offense
In his second issue, Jackson argues the trial court erred by denying Jackson's request that an instruction on the lesser-included offense of assault be included in the jury charge. Jackson argues the evidence was insufficient, or at least equivocal, as to whether Rivers suffered serious bodily injury, as opposed to bodily injury. Jackson further asserts the only opportunity for the jury to find "bodily injury" was in connection with a deadly weapon finding in the aggravated assault instruction. Jackson argues he was entitled to an instruction that allowed the jury to determine that Rivers suffered only bodily injury and that Jackson did not use a deadly weapon in the commission of the offense.
"Bodily injury" means "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (West 2011).
Assuming, without deciding, that Jackson was entitled to the requested instruction, we conclude any error was harmless. In this case, the jury was instructed as to aggravated assault/family violence and aggravated assault. Before finding Jackson guilty of aggravated assault/family violence, a first degree felony, the jury was required to find that Rivers had one of the statutorily defined relationships with Jackson and suffered serious bodily injury and that Jackson used a deadly weapon, a hand or hands, during the commission of the offense. See Tex. Penal Code Ann. §§ 22.01, 22.02(b)(1). If the jury had reasonable doubt that Jackson committed aggravated assault/family violence, it was instructed to consider whether Jackson was guilty of aggravated assault. To find Jackson guilty of aggravated assault, a second degree felony, the jury was required to find he caused bodily injury to Rivers and used a deadly weapon, a hand or hands, during the commission of the offense. See id. §§ 22.01, 22.02(a)(2), (b). Jackson's requested instruction on assault, a misdemeanor, would have required the jury to find that Jackson caused Rivers to suffer bodily injury. See id. § 22.01(a)(1). The jury found Rivers guilty of aggravated assault/family violence and did not reach the lesser-included offense of aggravated assault.
A jury's failure to find a defendant guilty of an intervening lesser-included offense, i.e. an offense between the requested lesser-included offense and the charged offense, may render the trial court's failure to give the requested charge harmless. Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005). This is true because the harm from denying a lesser-included offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer. Id. An intervening lesser-included offense is an available compromise, giving the jury the ability to hold a wrongdoer accountable without having to find him guilty of the charged (greater) offense. Id. The existence of an instruction regarding an intervening lesser offense does not automatically foreclose harm because in some circumstances that intervening lesser offense may be the least plausible theory under the evidence. Id. However, an appellate court can conclude that the intervening offense instruction renders the error harmless if the jury's rejection of that offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense. Id. at 171-72.
At trial, Jackson vigorously contested the extent of Rivers's injuries. Therefore, if the jury did not believe Rivers suffered serious bodily injury, aggravated assault was a realistic option for the jury. The jury's decision to convict Jackson of aggravated assault/family violence despite the opportunity to convict him of aggravated assault shows that the jury determined Rivers suffered serious bodily injury, rather than bodily injury. After convicting Jackson of the greater offense, the jury had no reason to consider whether Jackson was guilty of a lesser offense based on Rivers suffering only bodily injury. See Stafford v. State, 248 S.W.3d 400, 415 (Tex. App.-Beaumont 2008, pet. ref'd) (jury's rejection of intervening manslaughter instruction indicates jury legitimately believed defendant was guilty of greater, charged offense); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd) ("Once the jury convicted appellant of aggravated assault, having been properly charged on that offense, it had no reason to consider whether appellant might be guilty of the lesser-included offense of assault."). Further, after it found the alleged punishment enhancements were true, the jury was charged on a punishment range from twenty-five to ninety-nine years or life imprisonment. Rather than assess the minimum of twenty- five years, the jury sentenced Jackson to forty years' imprisonment, showing it believed Jackson was guilty of the greater offense. See Partida v. State, 279 S.W.3d 801, 804-05 (Tex. App.-Amarillo 2007, pet. ref'd) (citing Campos v. State, No. 05-05-00492-CR, 2006 WL 1461155, at *2 (Tex. App.-Dallas May 30, 2006, pet. ref'd) (not designated for publication) (jury's action in assessing punishment more than minimum sentence is indicative of intent to punish defendant for greater offense)). Accordingly, we conclude that any error by the trial court in refusing to include a lesser- included offense instruction for misdemeanor assault was harmless. See Masterson, 155 S.W.3d at 172; Partida, 279 S.W.3d at 804-05. We resolve Jackson's second issue against him.
We affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101601F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01601-CR
Appeal from the 283rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 56143-T).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 23, 2012.
ROBERT M. FILLMORE
JUSTICE