Opinion
04-21-00383-CR
10-26-2022
Zepatrick Lee CARTER, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the County Court at Law No. 13, Bexar County, Texas Trial Court No. 573322 Honorable Rosie S. Gonzalez, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Challenging the sufficiency of the evidence and claiming the trial court improperly commented on the evidence during trial, appellant Zepatrick Lee Carter appeals his conviction of family assault. See Tex. Penal Code Ann. § 22.01(a)(1); Tex. Code Crim. Proc. art. 38.05. We affirm the trial court's judgment.
Background
Eleazar Alvara Jr. testified Carter is his sister's boyfriend and at the time of the incident, they all lived together. Alvara explained he called 911 after he, Carter, and his sister had a verbal confrontation regarding expenses in the house, Carter "escalated," and Alvara noticed blood and water running down his forehead after seeing "stars[.]" Alvara stated his head was injured by being hit by a Yeti cup, thrown by Carter. Because of the injury sustained, Alvara sought medical attention at the hospital.
During the investigation, when police asked whether Alvara believed Carter intended to hit him with the cup or whether Carter was just throwing it and it hit Alvara, Alvara testified he could not remember completely, but thought he told police maybe both. Alvara refreshed his memory with body-camera footage from the police's investigation, then testified he told police that Carter told him he wanted to fight, he refused, Carter told him he was "tired of [his] BS[,]" he looked down, and then he was hit with the cup. During cross-examination, Alvara clarified Carter stated he wanted to fight during the incident, and that Carter was angry. Moreover, Alvara testified that he told the doctor at the hospital, the 911 dispatcher, and the police responding to his 911 call that Carter threw the cup at his head assaulting him.
Despite testifying to the details of the incident, Alvara also explained he had previously told the State he did not want to proceed with the case. Specifically, Alvara acknowledged the incident occurred as he had explained, but because he and Carter "reconciled our differences and we're on good terms" Alvara did not want to proceed with the case.
In addition to Alvara's testimony, his 911 call was played for the jury wherein Alvara spoke with the 911 dispatcher and informed her that Carter assaulted him, and he possibly needed stitches or a staple. Moreover, one of the officers conducting the police investigation, Detective Eliseo Zavala with the San Antonio Police Department, testified about responding to a 911 call. Detective Zavala identified Alvara as the victim and witnessed blood on his shirt and a cut and bump on his forehead area. Detective Zavala stated a large "Yeti tumbler" cup was the weapon used to injure Alvara, and that Alvara told him who had assaulted him.
Sufficiency of the Evidence
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we consider 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 crime beyond a reasonable doubt." Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (emphasis omitted). Under this standard, "we defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotations omitted). "Furthermore, the trier of fact may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence." Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
Here, to convict Carter of family assault as charged, the State had to prove that Carter intentionally, knowingly, or recklessly caused Alvara bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1). "The State may prove a defendant's identity and criminal culpability by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence." Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). The testimony of the complainant, standing alone, is sufficient to sustain the conviction. See Everett v. State, 707 S.W.2d 638, 639-40 (Tex. Crim. App. 1986).
Application
Although Carter acknowledged on appeal Alvara was injured after being hit in the head with the cup, Carter asserts in his first issue the evidence is insufficient to support his conviction. Namely, Carter attempts to argue Alvara did not identify Carter as the person who threw the cup based on alleged inconsistent statements made by Alvara. To support his position, Carter points to Alvara's trial testimony when Alvara explained the incident and said he looked downward during his argument with Carter, only to look up about the time the cup hit him in the head, affirming he did not actually see Carter throw the cup.
Based on our review of the record, Alvara's statements were consistent. Alvara's testimony and the other supporting evidence never suggested another person threw the cup. Despite Alvara expressing his desire that the State not prosecute Carter, Alvara testified that on the day of the incident, he and Carter got into an argument, Carter was angry and wanted to fight, and Alvara ended up with an injury to his head after being hit with the cup. Alvara clarified he told the doctor at the hospital, the 911 dispatcher, and the police responding to Alvara's 911 call that Carter threw the cup at his head assaulting him. Alvara's reluctancy to testify did not make this a case about changing stories or about a victim being unclear as to the identity of the defendant. Moreover, Alvara's testimony at trial along with the other evidence, were consistent in reporting Carter throwing the cup at Alvara's head. No evidence suggested otherwise.
Having viewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Carter was the person who threw the cup at Alvara's head, causing bodily injury. Nisbett, 552 S.W.3d at 262. The jury was able to assess the credibility and demeanor of the witnesses who testified at trial, and we presume the jury resolved all conflicts in testimony, if any, weighed the evidence, and drew reasonable inferences from the evidence in a manner that supports the verdict. Isassi, 330 S.W.3d at 638. The jury's conclusion "was not a determination so outrageous that no rational trier of fact could agree." Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012).
We overrule Carter's first issue.
Improper Comments on Weight of Evidence
Standard of Review and Applicable Law
Article 38.05 instructs a trial court, when ruling upon the admissibility of evidence, to "not discuss or comment upon the weight of the same or its bearing on the case," or at any time prior to the verdict "make any remark calculated to convey to the jury [the trial court's] opinion of the case." Tex. Code Crim. Proc. Ann. art. 38.05. Whether a trial court violated article 38.05 is a question of law, that we review de novo. Simon v. State, 203 S.W.3d 581, 590-92 (Tex. App.- Houston [14th Dist.] 2006, no pet.) (stating appellate courts first inquiry under statute is deciding whether challenged remarks constitute comments on the weight of the evidence based on their independent review of the record). If the trial court errs by violating article 38.05, the error requires reversal if the trial court's comments were reasonably calculated to benefit the State or prejudice the defendant's rights. Proenza v. State, 541 S.W.3d 786, 791 (Tex. Crim. App. 2017).
Application
Carter asserts in his second issue that the trial court violated article 38.05 of the Texas Code of Criminal Procedure when it made "improper and harmful comments" to the jury by not allowing Carter's counsel to suggest his commission of the offense was accidental. Specifically, Carter's complaint stems from the trial court's alleged comments made in voir dire and continuing throughout the remainder of trial.
During voir dire, Carter's counsel brought up accidental behavior and even defined "accident" to the venire. Carter's counsel also tied the concept of his actions being accidental back to the State's burden of proof regarding the culpable mental states by stating:
So we're all on the page that accidents happen. In order for the State of Texas to prove a case of a criminal charge, it has to be one of those criminal mental states.
In this particular case it either has to be intentionally, knowingly, or recklessly. Now, does that . . . clear up the difference between all of these three, does that formulate better in your mind?
Carter's counsel continued questioning the venire about being mad and accidental behavior when the State objected to Carter's counsel misstating the law and asking improper commitment questions, at which time, a bench conference ensued. During the bench conference, the State objected to Carter's counsel referring to whether Carter's throwing of the cup could be viewed as accidental as a potential mental state because "accident" is not contained within the Penal Code and not part of the case. The trial court agreed and instructed the venire that "accidental does not come into play. You're either going to find that it happened or it didn't happen. Motive is irrelevant." Both Carter's counsel and the State discussed accidental conduct further during voir dire, but each clarified the State bore the burden to show Carter's actions as intentionally, knowingly, or recklessly made to convict Carter.
While Carter's counsel explained the State's burden on the culpable mental states during opening statements, Carter's counsel also asked the question about whether the case could be one about an accident and the State objected. The trial court sustained the objection and instructed the jury "to disregard the comment on the possibility of an accident." Carter's counsel continued her opening statement immediately stating, "Even if you're going to disregard the possibility of an accident, [the State] still ha[s] to prove to you that whatever actions happened on that day, it was done intentionally, knowingly, or recklessly."
Next, during their examinations, both Carter's counsel and the State asked Detective Zavala and Alvara about whether Alvara told police the incident could have also been an accident. Carter's counsel and the State were each able to elicit testimony from the witnesses about whether Alvara told police it could be an accident, but neither was able to expand on the testimony, including the State who attempted to admit evidence from a body-camera. Only when Carter's counsel began the same line of questioning with Alvara during his recross-examination, to which the State objected, did the trial court at the bench instruct Carter's counsel to stop the line of questioning or jeopardize being held in contempt. At the conclusion of the bench conference, the trial court instructed the jury "to disregard any comment regarding any accidental actions. So just-I'm just reminding you-all of that."
Finally, during closing argument, Carter's counsel, without objection or interruption by the trial court stated:
Fact of the matter is, ladies and gentlemen, nobody can read a person's mind. And then even [Detective Zavala] admitted while he was on the stand that he-at the scene that day, after getting the information from [Alvara], that he even had a conversation with [another officer] to whether or not this could have been an accident.
Initially, we address any of the comments the trial court made during bench conferences conducted outside the jury's hearing or presence. Discussion or commentary that occurs outside the jury's presence or hearing neither benefits the State nor prejudices the defendant's rights and they cannot constitute reversible error. See Becknell v. State, 720 S.W.2d 526, 532 (Tex. Crim. App. [Panel Op.] 1986); see also Baca v. State, 223 S.W.3d 478, 481-82 (Tex. App.-Amarillo 2006, no pet.) (holding statements made by trial court outside jury's presence could not have tainted presumption of innocence); Murchison v. State, 93 S.W.3d 239, 262 n.4 (Tex. App.- Houston [14th Dist.] 2002, pet. ref'd) (concluding comments made by the trial court outside jury's presence could not have affected right to impartial jury trial). Therefore, under article 38.05, comments made outside the jury's presence or hearing, harmless or not, cannot constitute reversible error.
With respect to the trial court's rulings and instructions to counsel and the jury regarding Carter's counsel's suggestion that Alvara's injuries resulted from an accident, we note the Texas Penal Code does not provide a defense theory of "accident." See Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003) (citing Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)). As noted in Williams, "[t]here is no law and defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term 'accident' in connection with offenses defined by the present penal code." 630 S.W.2d at 644. Rather, the Penal Code provides that "a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." See Tex. Penal Code Ann. § 6.01(a). "Voluntariness" within the meaning of section 6.01(a) refers only to one's physical bodily movements and means the absence of an accidental act, omission, or possession. See Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993); see also Tex. Penal Code Ann. § 6.01(a).
Carter's counsel appears to be asserting that Alvara's injury was an accident because it was an unintended or unexpected result. As such, Carter's counsel's assertions that Alvara's injury was an accident is a challenge to the mens rea required to support his family assault conviction. See Rogers, 105 S.W.3d at 637-39; see also Williams, 630 S.W.2d at 644 (noting "accident," under the former Penal Code, described multiple defenses, included an unexpected result). However, the trial court's instructions to the venire and jury about disregarding Carter's counsel's use of the word "accident" in the context of a possible mental state was valid in accordance with the Penal Code and caselaw. The Court of Criminal Appeals has gone as far as instructing the bench and bar against using the word itself. Moreover, Carter's counsel, on many occasions was allowed to comment or question witnesses about the possibility of Carter's actions being viewed as "accidental." And, both Carter's counsel and the State clearly conveyed to the venire and jury that Carter could only be convicted if he was found to have intentionally, knowingly, or recklessly caused Alvara bodily injury. Reviewing the entire record, we cannot conclude that any of the trial court's comments made in the presence and hearing of the jury benefited the State or prejudiced Carter's rights. See Proenza, 541 S.W.3d at 791. The trial court did not violate article 38.05. See Tex. Code Crim. Proc. Ann. art. 38.05.
Harm Analysis
Nevertheless, even if we were to conclude that some of the trial court's statements were improper comments on the weight of the evidence, the statements were not harmful. To constitute reversible error under article 38.05, the trial court's improper comments must be reasonably calculated to benefit the State or prejudice Carter's rights. Proenza, 541 S.W.3d at 791. We review statutory error under article 38.05 under the non-constitutional-harm standard of the Texas Rules of Appellate Procedure 44.2(b), which states, "Any other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b); Proenza, 541 S.W.3d at 801. "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). "[A]n error had a substantial and injurious effect or influence if it substantially swayed the jury's judgment." Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). The proper inquiry is "whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765. But, if "the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. at 764.
Carter failed to present any evidence suggesting the cup being thrown and injuring Alvara resulted from an involuntary act. See Alford, 866 S.W.2d at 624; see also Tex. Penal Code Ann. § 6.01(a). Rather, the evidence clearly supports Carter's actions were voluntary and the conclusion Carter intentionally, knowingly, or recklessly caused Alvara bodily injury when he threw the cup. Thus, reviewing the entire record, including the testimony, the physical evidence, the "nature of the evidence supporting the verdict, the character of the alleged error[,] and how it might be considered in connection with other evidence in the case," we have fair assurance that the trial court's avoidance of using the word "accident" as it pertains to the cup being thrown and hitting Alvara in the head did not influence the jury in its decision-making. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see also Simon, 203 S.W.3d at 593. Furthermore, also considering the jury instructions, closing arguments, voir dire, the theories advanced by the State and Carter, and whether the State emphasized the error, we conclude the trial court's comments, if error, did not influence the jury. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see also Simon, 203 S.W.3d at 593.
We therefore overrule Carter's second issue.
Conclusion
Having overruled all of Carter's issues, we affirm the trial court's final judgment.