10-06-00185-CR
Opinion delivered and filed August 15, 2007. DO NOT PUBLISH.
Appeal from the 89th District Court Wichita County, Texas Trial Court No. 42, 859-C.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurring).
FELIPE REYNA, Justice.
A jury convicted Shantacus Carta Clark of aggravated assault and sentenced him to eighteen years in prison. Clark's appellate counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel notified Clark that he had filed an Anders brief, sent him a copy of the brief, and informed him of his right to file a pro se brief. Although notified of his right to do so and having indicated his intent to do so, Clark did not file a pro se brief. We affirm.
STANDARD OF REVIEW
In an Anders case, we "always conduct an independent review of the record to determine whether there are any arguable grounds for appeal." Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex.App.-Waco 2006, no pet.) (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991)). "[I]f counsel in an Anders brief or the appellant in a pro se response points out a potential issue, we must determine whether it is arguable or frivolous." Id. at 242. If "arguable grounds" exist, we must "remand the cause to the trial court so that new counsel may be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005); see Villanueva, 209 S.W.3d at 243. POINTS PRESENTED
Counsel presents three potential points of error addressing whether the trial court: (1) violated the Double Jeopardy Clause; (2) abused its discretion by admitting evidence of a prior conviction; and (3) erred by failing to instruct the jury regarding note-taking. In a fourth potential point, counsel addresses whether the evidence is legally and factually sufficient to support Clark's aggravated assault conviction. LEGAL AND FACTUAL SUFFICIENCY
We begin with counsel's fourth potential point addressing the legal and factual sufficiency of the evidence to support Clark's aggravated assault conviction. Standards of Review
Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Under factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Analysis
A person commits aggravated assault if he intentionally, knowingly, or recklessly caused bodily injury to another and used or exhibited a deadly weapon during commission of the assault. See TEX. PEN. CODE ANN. § 22.01 (Vernon Supp. 2006); see also TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2006). Deadly Weapon
"Deadly weapon" means "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 Supp. 2006). Clark stabbed the complainant, Rolanda Heidelberg, in the chest with a knife. Heidelberg believed that the knife came from her kitchen. Crime scene consultant Vicky Blair testified that the knife is of the type commonly found in a kitchen. Both Officer Daniel Zimpel and Dr. Alan Scott Myers, one of Heidelberg's treating physicians, testified that the knife was capable of causing serious bodily injury or death. Heidelberg suffered two stab wounds from the knife. We cannot say that the evidence is legally and factually insufficient to support a deadly weapon finding. See Garcia v. State, 17 S.W.3d 1, 4-5 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Serious Bodily Injury
"Serious Bodily Injury" means 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. TEX. PEN. CODE ANN. § 1.07(46) (Vernon Supp. 2006). The relevant issue is the quality of the injury as it was inflicted, not the quality of the injury after its effects are ameliorated with medical treatment. Gonzales v. State, 191 S.W.3d 741, 753 (Tex.App.-Waco 2006, pet. ref'd). Dr. Myers testified that Heidelberg's injuries amount to serious bodily injury because the knife could have punctured any one of several vital organs and the stab wounds caused her lungs to collapse. Dr. Myers believed that the knife entered the right side of Heidelberg's chest, crossed through the center of her chest, and entered the left side of her chest. He believed "significant force" must have been used to "cross that much tissue." Dr. Myers testified that Heidelberg would have died without medical treatment. This evidence is legally and factually sufficient to support a finding that Heidelberg suffered serious bodily injury as a result of stab wounds inflicted by Clark's use of the knife. See Garcia, 17 S.W.3d at 5-6. Intent
The record contains conflicting evidence regarding Clark's intent. Heidelberg testified that she thought Clark wanted to frighten her with the knife and she did not expect him to use it. Clark testified that he did not aim the knife at Heidelberg or intend to stab her. However, Dr. Myers's testimony that "significant force" was necessary to cause Heidelberg's injuries indicates that the knife did not accidentally enter Heidelberg's chest. Moreover, Heidelberg testified that Clark threatened her with the knife and stated his intent to kill her unless she followed his instructions. Heidelberg further testified that, following the offense, Clark hugged her, apologized, and asked her not to tell anyone what happened. The jury was entitled to disregard Clark's contrary testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997); see also Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd). The evidence is legally and factually sufficient to support a finding of intent. In summary, the evidence is legally and factually sufficient to sustain Clark's conviction for aggravated assault with a deadly weapon. We agree with Clark's counsel that this is not an issue that might arguably support an appeal. DOUBLE JEOPARDY
In his first potential point of error, counsel addresses whether the trial court violated the Double Jeopardy Clause by granting a second trial. The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 2087, 72 L. Ed. 2d 416 (1982). "[R]etrial after a defense-requested mistrial is jeopardy-barred only when the prosecutorial `conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the defendant into moving for a mistrial.'" Ex parte Masonheimer, 220 S.W.3d 494, 506 (Tex.Crim.App. 2007) (quoting Kennedy, 456 U.S. at 679, 102 S. Ct. at 2091). Two juries were empanelled to hear Clark's case. During the first trial, a juror failed to appear. At Clark's request, the trial court granted a mistrial. Having resulted from a juror's conduct in failing to appear for trial, the mistrial clearly did not result from any misconduct on the part of the prosecution and Double Jeopardy did not bar Clark's second trial. See Masonheimer, 220 S.W.3d at 506; see also Kennedy, 456 U.S. at 679, 102 S. Ct. at 2091. We agree with Clark's counsel that this is not an issue that might arguably support an appeal. INTRODUCTION OF PRIOR CONVICTION
Counsel's second potential point addresses whether the trial court abused its discretion by allowing the introduction into evidence of a prior forgery conviction. A prior conviction is admissible for purposes of attacking a witness's credibility if the conviction involves a felony or crime of moral turpitude and its probative value outweighs its prejudicial effect. See TEX. R. EVID. 609(a). We review the trial court's decision to admit or exclude evidence for abuse of discretion. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). "A non-exclusive list" of factors to be considered in balancing probative value against prejudicial effect includes: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992). Impeachment Value
The "impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice." Theus, 845 S.W.2d at 881. A crime of forgery involves deception. See Denman v. State, 193 S.W.3d 129, 136 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). This factor weighs in favor of admissibility. See id. Temporal Proximity
This factor favors admission "if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law." Theus, 845 S.W.2d at 881. Clark was convicted of forgery in 1996; the conviction became final in 1998, approximately seven years before the instant offense and 8 years before the date of trial. The temporal proximity of Clark's forgery offense relative to his current offense was within Rule 609's ten-year time limit and shows his propensity to run afoul of the law. See TEX. R. EVID. 609(b); see also Theus, 845 S.W.2d at 881. This factor favors admissibility. Similarity to Charged Offense
The fact that a prior conviction is similar to the present offense weighs against its admissibility because the similarity might lead a jury to "convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense." Theus, 845 S.W.2d at 881. Clark's prior forgery conviction is dissimilar to the aggravated assault offense for which Clark was on trial. This factor favors admissibility. Importance of Defendant's Testimony/Credibility
When a case involves the testimony only of the defendant and the State's witnesses, the importance of the defendant's testimony and credibility escalates. Theus, 845 S.W.2d at 881. As the importance of the defendant's credibility escalates, so does the need to allow the State the opportunity to impeach the defendant's credibility. Id. These factors favor admissibility. Conclusion
We accord the trial court "wide discretion" in determining whether to admit a prior conviction for impeachment under Rule 609. Theus, 845 S.W.2d at 881. Because the five factors weigh in favor of admissibility, we cannot say that the trial court abused its discretion by admitting Clark's prior forgery conviction. See id.; see also McDonald, 179 S.W.3d at 576. We agree with Clark's counsel that this is not an issue that might arguably support an appeal. JURY INSTRUCTION
In his third potential issue, counsel addresses whether the trial court erred by failing to instruct the jury on note-taking until after the State's third witness had taken the stand. Counsel discusses why the trial court's instruction was not an abuse of discretion, but at no time did Clark object to either the juror's note-taking or the trial court's instruction. See Shannon v. State, 942 S.W.2d 591, 596 (Tex.Crim.App. 1996); see also Mata v. State, 939 S.W.2d 719, 726 (Tex.App.-Waco 1997, no pet.). We agree with Clark's counsel that this is not an issue that might arguably support an appeal. INDEPENDENT REVIEW
We have conducted an independent review of the record and have determined that no other arguable grounds for appeal exist. Accordingly, we agree with counsel that Clark's appeal presents no issues of arguable merit. Counsel must advise Clark of the disposition of this appeal and of his right to file a pro se petition for discretionary review. See Villanueva, 209 S.W.3d at 249; see also Meza v. State, 206 S.W.3d 684, 689 (Tex.Crim.App. 2006). We grant counsel's motion to withdraw as Clark's appellate counsel, effective upon his notifying Clark of our decision and of his right to file a pro se petition for discretionary review. See Villanueva, 209 S.W.3d at 249; see also Meza, 206 S.W.3d at 689. The judgment is affirmed.
TOM GRAY, Chief Justice.
CONCURRING OPINION
In Villanueva v. State, 209 S.W.3d 239 (Tex.App.-Waco 2006, no pet.), the majority made many of the same mistakes which are repeated in their opinion in this case. I explained my disagreement with their procedure in my concurring opinion in that proceeding. Id. at 249-252 (Gray, C.J., concurring). For the same reasons, I concur only in the judgment in this proceeding.