Opinion
No. 05-05-00199-CR
Opinion issued April 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00181-KU. Affirmed.
Before Justices MOSELEY, LANG, and MAZZANT.
OPINION
Delmar Joe Stover appeals his conviction for injury to an elderly person. In three issues, he claims (1) that he did not properly waive his right to a jury trial; (2) the evidence is factually insufficient to support the trial court's rejection of his self-defense claim; and (3) the sentence is void. We affirm the trial court's judgment.
Background
Seventy-three year old Howard Beathe testified that on the evening of August 19, 2003, he was walking outside his home in Mesquite, Texas, accompanied by his miniature Australian Shepherd. The dog saw a cat and chased it onto a nearby property. When Beathe finally caught up with the animal, it was whimpering as if it had been kicked. Seventeen year old Jonathan Stover, appellant's grandson, and his friend Rodney (Eric) Jenkins were standing nearby. Beathe and Jonathan became involved in a confrontation that escalated after appellant intervened. Beathe testified that appellant ran up and told Jonathan to "get out of the way . . . I'll take care of this." Appellant hit Beathe's extended hand. Then, according to Beathe, appellant struck him without warning in the forehead. Beathe did not recall how many times appellant hit him. He said he tried to defend himself but could not stop appellant from hitting him. Beathe said the next thing he could remember was lying on the ground with appellant standing over him, hitting him, and yelling at him. At some point, Beathe lost consciousness. Beathe's injuries consisted of an orbital wall fracture to his left eye, a torn retina in his right eye, a small broken bone in his foot, and a minor injury to his head. He also required eighteen sutures to his right cheek. He remained in the hospital for two days before being released. Mesquite police officer Jerry Wasel testified that when he arrived on the scene, he found Beathe in shock, with lacerations on the right side of his face and eye, and blood running from both eyes. Wasel noticed appellant had a slight abrasion or bruised area on the left side of his face around the eye. After reviewing his report, Wasel recalled that Beathe could not remember who struck first but said that appellant hit him with a closed fist. Appellant blamed Beathe for throwing the first punch. Wasel recalled that when he spoke to appellant about the incident, appellant said, "I knocked him out." Later in the interview, appellant told Wasel that "I hit him twice and knocked him out." Matthew Kirklin lives in the same neighborhood as Beathe and is a friend of his son. Kirklin testified that he was driving home on the evening of August 19, 2003, with his girlfriend, Stephanie Hazelwood, and witnessed the assault. Kirklin said he "could see both of them under the lights standing there." Kirklin estimated that he saw appellant hit Beathe at least ten times. Kirklin said he never saw Beathe hit appellant. Stephanie Hazelwood gave a written statement to the police that was read to the court. In that statement, Hazelwood claimed that after she and Kirklin got out of their car, she asked appellant what had happened, and appellant responded that Beathe "had been asking for it for years." Jonathan Stover testified that he was scared when Beathe's dog ran up to him. Jonathan recalled warning Beathe to come and get his dog and that he would kick the dog if it bit him. He said that when the dog approached him he lifted his leg as if he were going to kick the animal but did not. Beathe walked over to Jonathan, and the two of them got into an argument. Jonathan claimed Beathe slapped him. At this point, appellant came over to investigate, asking Beathe if he had hit his grandson. In response, Beathe struck appellant with a right hook to the face. When Jonathan attempted to come to appellant's aid, he told Jonathan and his friend, Eric Jenkins, not to intervene. As appellant turned his attention back to Beathe, he was struck again. According to Jonathan's testimony, Beathe challenged appellant to "take your best shot." Appellant then struck Beathe. He fell to the ground but then tried to grab appellant's leg, at which point appellant struck Beathe a second time. Jonathan said that appellant threw only two punches. Eric Jenkins and his brother, Zack, testified to the same facts as Jonathan. Eric and Zack claimed they saw Beathe hit appellant twice before appellant hit Beathe, and that appellant hit Beathe only twice. Eric testified that Kirklin did not appear on the scene until after the fight was over and the ambulance had arrived. Appellant, sixty-one years old at the time of trial, testified that prior to the confrontation with Beathe he had never been arrested or convicted of a felony or misdemeanor. Appellant testified that he had sent his grandson over to a neighbor's house to retrieve a cordless telephone. Through the storm door of his home, appellant watched Jonathan walk across the street, retrieve the phone, and then stop and talk to Jenkins. Appellant saw a black dog run across the street. He could see his grandson raise his leg while saying something to Beathe. He then saw Beathe walk across the street to where his grandson was standing and talk to him. When appellant saw Beathe take a "swipe" at his grandson, he got dressed and went outside to investigate. Appellant said that he asked Beathe why he had hit his grandson, and Beathe responded by asking appellant what he was going to do about it. Then, without warning, Beathe "socked" him. When his grandson attempted to intervene, appellant told him to stay back. Appellant claimed that after he returned his attention to Beathe, Beathe struck him again. Appellant responded by hitting Beathe. Beathe immediately fell to the ground. However, as he was lying on the ground, Beathe tried to grab appellant's leg. Appellant then struck Beathe a second time. Appellant maintained he hit Beathe only twice. The case was tried before the court. After considering the evidence, which included photographs of Beathe and appellant's injuries, the trial court found appellant guilty of injury to an elderly person. On October 12, 2004, the trial court orally assessed punishment at two years' confinement in state jail, probated for three years, and a $1,500 fine.Discussion
In his first issue, appellant argues that he did not waive his right to a jury trial in writing as required by article 1.13 of the Texas Code of Criminal Procedure. In order to waive the right to a trial by jury, a defendant in a criminal prosecution must make such waiver in person and in writing, in open court, with the consent and approval of the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2004-05). Before trial, the trial court questioned appellant about his right to trial by jury:THE COURT: Mr. Stover, you have been charged with injury to an elderly person. Do you understand what you are charged with?THE DEFENDANT: Yes, ma'am.
THE COURT. Are you giving up your right to a jury trial — you understand you have a right to a jury trial in this case?THE DEFENDANT: Yes.
THE COURT: Are you giving up that right freely and voluntarily?THE DEFENDANT: Yes, ma'am. THE COURT: Do we have a waiver?
[DEFENSE COUNSEL]: There is a written waiver filed-stamped in there.
THE COURT: Do you waive arraignment, enter a plea of not guilty?[DEFENSE COUNSEL]: We do. After his conviction and sentence, appellant filed a motion for new trial in which he argued that he did not properly waive his right to a jury trial because his trial counsel signed the written waiver. During the hearing on appellant's motion, defense counsel testified and admitted that he, not appellant, had signed the jury waiver. Counsel explained that he did so because, based on his previous discussions with appellant, he was under the impression appellant wanted a trial before the court and not a jury trial. This is why counsel placed the letters "SWP" or "Signed With Permission" underneath the signature line where he signed appellant's name. Counsel admitted that he knew article 1.13 required the jury waiver to be signed by the defendant personally, but he believed he had permission to sign the waiver on appellant's behalf. In making this decision, counsel said he believed appellant was competent and understood the difference between a jury trial and a trial before the court. Appellant also testified at the motion for new trial hearing. He denied he had signed the jury waiver, pointing out he was not even at the courthouse on June 10, 2004, which is the date on the jury waiver form. He also pointed out that he signs his legal documents "Delmar Joe Stover" not "Joe Stover," which is the name on the signature line of the jury waiver. Appellant said he met with his attorney just prior to trial, and counsel told him to respond in the affirmative when the district court asked him if he wanted to waive his right to trial by jury. There was no discussion about the merits of a trial before the court versus a jury trial. Appellant asserted that if he had been properly advised of his right to trial by jury, he would have asked for a jury trial because he felt more comfortable having the issue of guilt/innocence determined by private citizens. Under cross-examination, appellant admitted that he spoke and understood the English language, that he was not taking any type of medication which would have affected his ability to understand the trial court's questions, and that he understood what the term "jury trial" meant. In Johnson v. State, the Texas Court of Criminal Appeals held that even where there is a violation of article 1.13, the error is harmless if the record reflects that the defendant was aware of his right to a jury trial. Johnson v. State, 72 S.W.3d 346, 349-50 (Tex.Crim.App. 2002). Such is the case here. Appellant told the trial court before trial that he understood he had a right to a jury trial and that he knowingly and voluntarily waived that right. The only evidence suggesting the waiver was not voluntary is appellant's testimony at the hearing on the motion for new trial. Although article 1.13(a) was violated because appellant did not waive his right to a jury in writing in open court, he was not harmed by the violation. Appellant's first issue is overruled. In his second issue, appellant argues that the evidence is factually insufficient to support the trial court's rejection of his self-defense claim. In finding appellant guilty of injury to an elderly person, the trial court told appellant it was rejecting his claim of self-defense. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991) (jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory). According to the Texas Penal Code, a person commits the offense of injury to an elderly person if he intentionally or knowingly causes bodily injury to a person over the age of sixty-five. Tex. Penal Code Ann. § 22.04(a)(3), (c)(2) (Vernon 2004). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Id. § 9.31(a). In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self-defense, we review all the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the claim does not meet the beyond-the-reasonable doubt standard. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In conducting this review, we must bear in mind that the fact finder may draw reasonable inferences, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Zuniga, 97 S.W.3d at 595; Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Johnson v. State, 959 S.W.2d 284, 287 (Tex.App.-Dallas 1997, pet. ref'd). Viewing the evidence in a neutral light, we conclude the State's evidence taken alone is not too weak to support the finding of guilt beyond a reasonable doubt and the evidence supporting the defense is not so strong that the rejection of the claim does not meet the beyond-a-reasonable-doubt standard. Appellant notes that only one witness saw him strike first and that witness's testimony is contradicted by other testimony which suggests he arrived on the scene after the altercation and, therefore, was not in a position to see who struck the first blow. Appellant also points out that all of his witnesses, not to mention appellant himself, testified that Beathe struck the first blow and appellant hit back only in self-defense. By returning a verdict of guilty, the court implicitly rejected this testimony. As the sole judge of the witnesses' credibility and weight given to their testimony, the trial court was free to do so. Furthermore, appellant overlooks the general rule that the amount of force must be in proportion to the force encountered. See Kelley v. State, 968 S.W.2d 395, 399 (Tex.App.-Tyler 1998, no pet.). At the conclusion of the trial, the trial court examined the photographs of Beathe and appellant's injuries. After looking at the pictures, the trial court told appellant it was rejecting his self-defense claim:
Your lawyer did a good job trying to plead your case to defend your actions of what happened that night. Based on the evidence you can't get past these pictures. You have one scratch on your eye and then you have a man who is just black and blue and pretty severely injured here . . .
The law says you have a right to defend yourself but you are not to use excessive force and that's what happened here . . .The trial court could have reasonably concluded, based on the evidence presented, either appellant used greater force than necessary to protect himself or appellant continued to use force after he no longer needed to do so. Given the deference we must accord the trier of fact in these situations, the dramatically conflicting accounts of the altercation, and the disparate injuries of the two parties, we conclude the evidence is factually sufficient to support the trial court's rejection of appellant's self-defense claim. We overrule appellant's second issue. In his third issue, appellant contends he is entitled to a new punishment hearing because his sentence is void. Appellant was charged with intentionally causing bodily injury to an elderly person. Under section 22.04 of the Texas Penal Code, this offense is a third degree felony. Tex. Pen. Code Ann. § 22.04(a)(3), (f) (Vernon 2004). A third degree felony is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for any term of not more than ten years or less than two. Id. § 12.34(a). At the conclusion of the punishment hearing in this case, the trial court assessed appellant's punishment at "two years' confinement in the state jail," probated for three years, and a $1,500 fine. The written judgment, however, describes the correct sentence as two years' confinement in the institutional division of the Texas Department of Criminal Justice, probated for three years, and a fine of $1,500. Confinement in a state jail facility is not an authorized punishment for appellant's third-degree felony offense. See Tex. Pen. Code Ann. § 12.34 (Vernon 2004). The Fourteenth District Court of Appeals has held that the place of confinement is part of the sentence imposed, and when the trial court sentences a defendant to confinement in an unauthorized place, the sentence is void. Banks v. State, 29 S.W.3d 642, 644-45 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant asserts that where a conflict exists between the oral pronouncement and written memorialization of a sentence, the oral pronouncement controls, citing State v. Coffey, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). Nothing in Coffey, however, suggests a void oral sentence prevails over an enforceable written judgment. See Ribelin v. State, 1 S.W.3d 882, 885 (Tex.App.-Fort Worth 1999, pet. ref'd). Here, as in Ribelin, the trial judge's error arises not from the imposition of a void sentence but from a variance between the oral pronouncement of sentence and the court's written judgment. See id. Under such circumstances, we can only reverse if the variance affected appellant's substantial rights. See Tex.R.App.P. 44.2(b); Ribelin, 1 S.W.3d at 885. In this case, as previously noted, the written judgment sets forth the proper place of confinement. Appellant is not currently confined to either the institutional division of the Texas Department of Corrections or state jail. Rather, his sentence was probated for three years. The probationary period is correctly set forth in both the oral pronouncement of sentence and the written judgment. Given these facts, we do not see how appellant's substantial rights have been affected. Nor do we see how appellant has been harmed by the variance between the oral pronouncement and the written judgment. We therefore disregard the variance and overrule appellant's third issue. See Ribelin, 1 S.W.3d at 885. We affirm the trial court's judgment.