Wallace v. State

Full title: BILLY WAYNE WALLACE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Apr 14, 2004

No. 04-03-00129-CR (Tex. App. Apr. 14, 2004)

Opinion

No. 04-03-00129-CR.

Delivered and Filed: April 14, 2004. DO NOT PUBLISH.

Appeal from the 240th Judicial District Court, Fort Bend County, Texas, Trial Court No. 34,956, Honorable Thomas R. Culver, III, Judge Presiding. Affirmed

Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.

MEMORANDUM OPINION

CATHERINE STONE, Justice.

A jury found appellant, Billy Wayne Wallace, guilty of aggravated assault. The trial court sentenced Wallace as a habitual offender to life in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Wallace challenges the legal and factual sufficiency of the evidence. He also contends the trial court erred in denying his requested jury instruction on the lesser included offense of assault. We disagree and affirm the judgment of the trial court.

Factual Background

Dr. Larry Largent works in Fort Bend County, Texas at the Jester III medical clinic, a unit of the Texas Department of Criminal Justice. On March 6, 2001, Dr. Largent met with Wallace in Largent's office. Largent testified that as Wallace turned to leave, Wallace came around the desk, grabbed Largent, and cut his neck. After Largent pushed Wallace away, Wallace turned around and left the office. Largent testified that he never saw a weapon during the attack. Delores Thomas, a nurse at Jester III, heard a fellow employee scream and ran into Dr. Largent's office. She saw Wallace coming towards her as he exited the office and Dr. Largent bleeding and saying, "He tried to choke me to death." Thomas screamed for Officer Kelly who detained Wallace. Thomas then helped Dr. Largent apply bandages to his cuts on his neck. Officer Earsel Kelly, a correctional officer, was serving as the security officer at Jester III that day. After hearing a worker scream, Kelly observed Wallace leaving Dr. Largent's office. Then he saw Dr. Largent clasping his neck with both hands saying, "He tried to choke me." Kelly escorted Wallace out of the infirmary. When Kelly made Wallace turn and face a wall, he saw Wallace drop a shank¹ onto the floor, and he noticed blood on Wallace's hand Corrections officers Clyde Morales and Billy White were also present and observed Wallace throw down the shank. At that point, officers handcuffed Wallace and took him to administrative segregation.

Legal and Factual Sufficiency

On appeal Wallace challenges the legal and factual sufficiency of the evidence as to whether Wallace used or exhibited a deadly weapon. When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is `legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex.Crim.App. 1996). In reviewing the factual sufficiency of the evidence, the court of appeals must view "`all the evidence without the prism of `in the light most favorable to the prosecution.' . . . [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Clewis, 922 S.W.2d at 129 (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.-Austin 1992, pet. ref'd, untimely filed)). An appellate court, however, must defer to a jury's findings and cannot reverse just because it disagrees with such findings. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). A finding of factual insufficiency may be made only where it is necessary to prevent a manifest injustice, and even then a detailed explanation of the finding must be provided. Id.; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). After a neutral review of all of the evidence, both for and against the finding, the appellate court must determine if "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. The State charged Wallace with the following indictment:

Billy Wayne Wallace . . . did then and there intentionally, knowingly or recklessly cause bodily injury to Larry Largent by cutting Larry Largent and . . . did then and there use or exhibit a deadly weapon, to-wit: a razor attached to a handle.

The Texas Penal Code defines a "deadly weapon" as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(17)(B) (Vernon 2003 Supp. 2004). Wallace contends the evidence is insufficient to prove he used or exhibited a deadly weapon. He supports his argument by the fact that multiple witnesses testified that Largent stated that Wallace had tried to choke him and that Largent testified that he did not even realize he had been cut until afterwards. Wallace also noted that he personally was never injured, which Fred Cabral, a registered nurse at the University of Texas Medical Branch, confirmed in an examination. Wallace also relies on the testimony of Robin Freeman, the DNA section supervisor for the crime lab in Houston, who stated that she would have expected the attacker to have cut himself with the object. In addition, Wallace emphasizes that the blood found on the shank was not Largent's, but that of an unidentified male. Finally, Wallace points out, not only did he consistently deny the shank was his, but also Officer Kelly searched him before entering the infirmary and found nothing. Wallace contends that this evidence creates a reasonable doubt as to whether he used a deadly weapon and to convict him of such would be clearly wrong and unjust. The evidence presented, however, is legally and factually sufficient for a jury to find that Wallace committed aggravated assault with a deadly weapon against Largent. First, the evidence provided by the officers regarding the alleged weapon is sufficient to prove it meets the definition of a "deadly weapon." Thomas v. State, 825 S.W.2d 758, 759 (Tex. App.-Houston [14th Dist.] 1992, no pet.) (holding that the evidence was sufficient to find a shank could cause serious bodily injury based on the testimony of two prison guards). Officer Kelly, Lieutenant Salazar, and Deputy Thomas Casey testified that in their experiences working with inmates they have known shanks to cause serious bodily injury, and they believe it could even cause death. Largent confirmed their testimonies by stating that if enough pressure were applied, a shank would be capable of causing serious bodily injury or even death. Second, as to the evidence proving Wallace assaulted Largent with the shank, witnesses testified they heard a scream and then observed Largent clasp his throat as Wallace exited his office. Nurse Thomas explained how she helped Largent clean the blood from his neck and apply a bandage. Additional witnesses testified that they saw blood on Wallace's hand as he dropped a shank in the hallway. Although Largent may not have realized initially that he had been cut during the attack and may have stated that Wallace tried to choke him, he was clearly bleeding and cut afterwards, which the jury chose to believe was a result of the attack with the weapon later found, a shank. Wallace correctly states that Freeman (DNA supervisor) did not find evidence of Largent's blood on the shank; however, Freeman also testified that it is not unusual if the victim's blood is not on the weapon. Finally, although Officer Kelly did perform a pat down search on Wallace through his clothes when he first entered the infirmary, Kelly testified that Wallace had been wearing prison whites with thermal underwear underneath and an overjacket on top. His testimony infers he may not have felt the item due to the layered clothing, an inference that the jury appears to have believed. "The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it." Rachal v. State, 917 S.W.2d 799, 805 (Tex.Crim.App. 1996). From reviewing the record and the evidence presented, it is evident that the jury chose to believe the testimonies supporting the fact that Wallace used or exhibited a deadly weapon, in this case a shank, when he attacked Largent. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that Wallace assaulted Dr. Largent with a deadly weapon. In addition, viewing the evidence in a neutral light, we hold that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust concerning the conviction of aggravated assault.

Jury Charge on Lesser Included Offense of Assault

Wallace contends the trial court erred in denying his requested jury charge on the lesser included offense of assault. There is a two prong test to determine if a jury charge on a lesser included offense is necessary. "[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). "In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense." Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). Further, the credibility or the strength of the evidence must not be considered, but a charge must be given if there is any evidence that "raises the issue that the defendant was guilty only of the lesser offense." Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim. App. 1992). The first prong is met since assault is included within the proof necessary to establish aggravated assault. Tex. Pen. Code Ann. § 22.02 (Vernon 2003 Supp. 2004). Wallace's argument does not meet the second prong, however, since there is no evidence to prove that he is guilty only of assault. The evidence reveals that Largent's throat was cut and that Wallace was later seen dropping a shank on the floor. Largent testified that his wound was definitely not consistent with a fingernail scratch, and Nurse Thomas testified that Largent's shirt was cut and that he had a couple of cuts on his neck that were bleeding "pretty good." Wallace has not suggested what non-deadly object he may have used that would allow him to be convicted only of assault. Wallace refers to Largent's alleged statement that Wallace tried to choke him as evidence of assault. The evidence of Largent's wounds, however, shows that more than choking occurred. Something cut Largent and there is no evidence to suggest something other than the retrieved shank was used. Wallace also argues that because (1) Largent's blood was not identified on the shank, (2) Wallace was never injured, and (3) Wallace denied the shank was his, the record supports his contention that Wallace could be guilty only of assault. As previously discussed, these contentions do not disprove that the shank was used, and certainly do not provide evidence that only an assault occurred since there is no dispute that Largent was cut on his neck.

Conclusion

Overruling Wallace's issues, we affirm the judgment of the trial court.