Coleman v. State

Full title: DEMETRICE THINE COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Sixth District, Texarkana

Date published: Jan 7, 2004

No. 06-03-00148-CR (Tex. App. Jan. 7, 2004)

Opinion

No. 06-03-00148-CR

Submitted: December 10, 2003.

Decided: January 7, 2004. DO NOT PUBLISH.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court No. F02-73242.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice, CARTER.

Demetrice Thine Coleman appeals from his conviction by a jury for aggravated assault. The jury assessed his punishment at five years' confinement. On appeal, he contends the evidence is legally and factually insufficient to support the verdict, that the instructions given were not applicable to this offense, and that one of the trial court's jury instructions was a comment on the weight of the evidence. We affirm the judgment of the trial court. The State alleged Coleman threatened Melvin Brooks with imminent bodily injury and used or exhibited a firearm during the incident. The evidence presented at trial shows that Coleman, along with his friend, Samuel West, III, went to an apartment where Michael and Richard Brooks were helping their brother, Melvin Brooks, move. (Their sister, Donna, has a child fathered by Coleman). Sam was evidently angry with Michael because some car repairs he had attempted as a favor had failed, and Sam walked off separately with Michael, pulled a pistol on him, they had a discussion, and Sam hit Michael in the head with the pistol. The pistol discharged, "grazing" Michael. Michael then ran back to his brothers, and as he collapsed at their feet, he told them Coleman had brought Sam to the apartment to shoot him. There is evidence that, at that point, Coleman pulled a revolver, pointed it at Melvin and Richard and told them, "[D]on't move or [I'll] shoot." Melvin nonetheless called 9-1-1 on his cell phone. In the meantime, Sam entered his car, drove back to the scene, jumped out of his car, and ran toward them waving a pistol. Melvin told Sam and Coleman he had called the police, and Sam yelled to Coleman, "Let's go," and they ran to Sam's car and drove away. Coleman testified at trial, and his version of events matched that set out above to the point they testified he pulled a gun. Coleman testified that he did not pull a pistol and that, after Sam talked with Michael, Sam drew a gun on both him and the Brookses. Coleman states he then ran to a friend's apartment and asked for a ride.

Sufficiency of the Evidence A. Threat of Immediate Bodily Injury

Coleman raises two sufficiency arguments involving different aspects of the same analysis. First, he contends that the evidence was inadequate to show the victims were threatened with immediate bodily injury and second, that the evidence was inadequate to show his actions were with the requisite level of intent. In reviewing the legal sufficiency of the evidence, we view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In reviewing factual sufficiency, we view the evidence in a neutral light, favoring neither party. Id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. As indicted, the statutory elements of aggravated assault applicable in this case are:

(2) intentionally or knowingly threatens another with imminent bodily injury [the assault];

. . . .

(2) uses [ and] exhibits a deadly weapon [to wit, a firearm,] during the commission of the assault.

Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004). In connection with the contention the State did not prove threat of imminent bodily injury, counsel argues that, because Coleman only warned them that if they moved he would shoot them, the threat was not immediate, but was instead — mediate. Aggravated assault by threat is described as a nature-of-conduct offense. See Guzman v. State, 988 S.W.2d 884, 887 (Tex. App.-Corpus Christi 1999, no pet.). Accordingly, our focus is not on a victim's perception of the defendant's behavior; rather, we look at the acts and culpability of the defendant, that is, whether the defendant intended to cause or knowingly "cause[d] in the victim a reasonable apprehension of imminent bodily injury." Edwards v. State, 57 S.W.3d 677, 680 (Tex. App.-Beaumont 2001, pet. ref'd); see Trevino v. State, 752 S.W.2d 735, 736-37 (Tex. App.-Eastland), pet. dism'd, 759 S.W.2d 142 (Tex.Crim.App. 1988). The State, therefore, was required to prove beyond a reasonable doubt Coleman intentionally or knowingly placed Melvin in reasonable apprehension of imminent bodily injury when he pointed a pistol at him and Richard and ordered them not to move. Imminent means near at hand; "mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989); In re S.B., No. 2-01-350-CV, 2003 WL 22069764, at *7 (Tex. App.-Fort Worth Aug. 29, 2003, no pet. h.); In re A.C., 48 S.W.3d 899, 904 (Tex. App.-Fort Worth 2001, pet. denied). In connection with the "imminence" argument, the Fort Worth Court of Appeals recently wrote that conditioning a threat of harm on the occurrence or nonoccurrence of a future event does not necessarily mean that the harmful consequences threatened are not imminent. Rather, the focus of the inquiry should be whether the complainant was afraid of imminent serious bodily injury at the time of the offense. Neagle v. State, 91 S.W.3d 832 (Tex. App.-Fort Worth 2002, pet. ref'd); A.C., 48 S.W.3d at 904. In the present case, two of the brothers, Melvin and Richard, testified that Coleman pointed a revolver at them, threatened them, and that they felt threatened and scared for their lives because they believed he was going to shoot them. This evidence is legally sufficient to support the jury's finding. The evidence also does not show conclusively to the contrary, and we also find it factually sufficient to support the verdict. See Green v. State, 567 S.W.2d 211 (Tex.Crim.App. [Panel Op.] 1978) (threat to "cave in" victim's head if he did not give money was sufficient to prove statutory requirements, including imminent bodily injury). The contention of error is overruled.

B. Proof of Requisite Mental State

The separate issue as set out by counsel is whether the evidence is factually insufficient to prove Coleman possessed the requisite intentional or knowing mental state at the time he threatened Melvin. The contention focuses on Coleman's position that his intent was not to harm them, but to assist him to escape. As already discussed, aggravated assault by threat is described as a nature-of-conduct offense. See Guzman, 988 S.W.2d at 887. Accordingly, our focus is not on a victim's perception of the defendant's behavior; rather, we look at the acts and culpability of the defendant, that is, whether the defendant intended to cause or knowingly "cause[d] in the victim a reasonable apprehension of imminent bodily injury." Edwards, 57 S.W.3d at 680. There is evidence of an apprehension of imminent injury. In light of the fact that Coleman was brandishing a pistol, and that another brother had already been shot by Coleman's friend, we cannot say the jury's finding on this matter was error. Looking at the evidence in the required neutral posture, we also cannot say there is evidence showing conclusively that Coleman did not have the necessary intent. The contention of error is overruled.¹

C. Proof of Use of Deadly Weapon

Coleman also contends the evidence is legally insufficient to prove that the deadly weapon used or exhibited during the assault was a firearm, because the evidence shows he used or exhibited a "gun," and the two terms are not necessarily interchangeable. As pointed out by the State, a firearm is, per se, a deadly weapon. However, a "gun" is not necessarily a firearm. Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003) defines a firearm as "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." We have reviewed the testimony. Although, obviously, the shorthand term "gun" could mean anything from a grease gun to a BB gun to an electron gun to a toy gun, the testimony of those looking down its barrel in this case consistently described it as a revolver, probably .38 caliber. Melvin stated that it was a "real gun" and that it "looks to be like maybe a .38 special. . . ." Richard testified "Demetrice came up with a .45 or a .38 or something." That is evidence from which a jury could conclude the device was a gun of the firearm variety. There is no evidence to the contrary. The evidence is factually and legally sufficient to allow the jury to conclude the device was a firearm. The contention of error is overruled.

Jury Instruction A. Conduct Elements

Coleman next contends the trial court erred by failing to properly instruct the jury on the conduct elements applicable to this offense. The jury charge read:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

As discussed above, assault by threat is treated as a "nature of conduct" offense, rather than a "result of conduct" offense. The instruction is thus erroneous, because the wrong portion of the definition of those two forms of intent was given to the jury by the court. See Tex. Pen. Code Ann. § 6.03 (Vernon 2003); Guzman, 988 S.W.2d at 887. The portion of Section 6.03 that would properly have reflected the evidence and charge in this case reads as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct . . . when it is his conscious objective or desire to engage in the conduct. . . .

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.

Tex. Pen. Code Ann. § 6.03. However, there was no objection to the charge. The standard of review for errors in the jury charge depends on whether the defendant properly objected. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g); Gornick v. State, 947 S.W.2d 678, 680 (Tex. App.-Texarkana 1997, no pet.). If a proper objection was raised, reversal is required if the error "is calculated to injure the rights of defendant." Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is reversible unless it is harmless. Id. If a defendant does not object to the charge, reversal is required only if the appellant shows this Court that harm is so egregious the appellant did not receive a fair and impartial trial. Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.-Texarkana 1996, pet. ref'd). Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim. App. 1991); Hall v. State, 937 S.W.2d 580, 583 (Tex. App.-Texarkana 1996, pet. ref'd). We determine harm in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole. Mann, 964 S.W.2d at 641; Rudd, 921 S.W.2d at 373. The purpose is to illuminate the actual, not just the theoretical, harm to the accused. Rudd, 921 S.W.2d at 373; Hines v. State, 978 S.W.2d 169, 175 (Tex. App.-Texarkana 1998, no pet.). In this case, our review of the record thus focuses on whether the jury could conclude Coleman intended to cause or knowingly caused in the victim a reasonable apprehension of imminent bodily injury. There is evidence of a fear of imminent injury. The mere presence of a deadly weapon, under proper circumstances, can be enough to instill fear and threaten a person with bodily injury. DeLeon v. State, 865 S.W.2d 139, 142 (Tex. App.-Corpus Christi 1993, no pet.). As previously discussed, in light of the fact that Coleman was brandishing a pistol, and that another brother had already been shot by Coleman's friend, we cannot say that, under the hypothetically correct jury charge construct, the evidence is insufficient to support a finding of guilt based on the nature of Coleman's conduct or that egregious harm has been shown. The contention of error is overruled.

B. That Intent might be Inferred

Coleman next contends the trial court erred by including language in the charge stating that "intent may be inferred from acts done, words spoken, or both." He takes the position that this constitutes a comment on the weight of the evidence and that he therefore suffered egregious harm because of the inclusion of this language in the charge. The language was taken from Tex. Pen. Code Ann. § 6.03(a), (b). Coleman directs our attention to cases in which a court selected a single inference and directed the jury's attention to this language in connection with that inference, and in which the court concluded that doing so was error because it suggested the court's desired result to the jury. See Browning v. State, 720 S.W.2d 504, 507 (Tex.Crim. App. 1986). The court in this case provided a statutory definition to inform the jury it could draw inferences from the evidence. We addressed this issue directly in Peterson v. State, 942 S.W.2d 206 (Tex. App.-Texarkana 1997, pet. ref'd). In that case, we recognized that the Texas Court of Criminal Appeals had addressed the propriety of instructing a jury on inferences, holding that, "when the trial court, the only source of law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference." Browning, 720 S.W.2d at 507. We recognized that the court had concluded singling out one inference would be improper because it constitutes a comment on the weight of the evidence.² We then noted that the Texas Court of Criminal Appeals reviewed a jury charge similar to the charge in Peterson, and in the present case, in Garcia v. State. The trial court in Garcia instructed the jury that "intent or knowledge may be inferred by acts done or words spoken." Garcia v. State, 919 S.W.2d 370, 396 (Tex.Crim.App. 1996). We recognized that both Garcia and Peterson had timely objected to the included phrase as an impermissible comment on the evidence. The court assumed, without addressing the merits of Garcia's assertion, it was error to include the disputed phrase in the jury charge. Id. Because of the court's ruling, we concluded we were constrained to hold that the charge in Peterson, 942 S.W.2d at 207-08, was an improper comment on the weight of the evidence and we moved on to a harm analysis. Since that time, several other courts reviewed this same scenario and came to differing conclusions. The San Antonio and Fort Worth courts tended to agree with our initial conclusion that the jury should not be given such an instruction.³ The Dallas court held to the contrary in Brown v. State, 92 S.W.3d 655, 663 (Tex. App.-Dallas 2002, pet. granted), reasoning that, because Garcia did not rule on the question, it was not controlling, and concentrated on the logic employed in the cases predating Garcia, which focused on the question whether the instruction improperly directed the jury's attention to particular evidence. The Texas Court of Criminal Appeals has now released its opinion in Brown v. State, No. 0059-03, 2003 Tex.Crim. App. LEXIS 910 (Tex.Crim.App. Dec. 3, 2003). In that opinion, it has redirected the discussion to the central point, which is whether giving the instruction constitutes an improper judicial comment. In connection with how to determine if the instruction reaches that level, the court has devised a sliding "improper-judicial-comment" scale for our use in analyzing the issue. The court delineated a sort of scale between the high end — a comment that imposes a mandatory presumption on a jury's decision-making process, through instructions on nonstatutory presumptions like those used by appellate courts to analyze evidence for sufficiency or singling out a specific type of evidence and telling the jury it may infer an element of the crime from that evidence, to the low end — that being an instruction neutral in itself, but that does not directly connect to specific evidence. Brown, 2003 Tex.Crim. App. LEXIS, 910 at *23. After this discussion, the court then reviewed an instruction reading: "intent or knowledge may be inferred by acts done or words spoken." The court reasoned it was a "benign" instruction — providing no presumption that could be improperly applied by the jury and that also did not link itself directly to any specific set of facts or pluck out any particular piece of evidence for its application. The court decided that the instruction was marginally on the wrong side of the scale because it was simply unnecessary and failed to clarify the law for the jury, and that it was indeed improper. Therefore, the court found error in giving the instruction to the jury, but further held such error was not harmful. The instruction in this case is not materially different. It reads: "Intent may be inferred from acts done, words spoken, or both." Thus, we must also find error in this case. We now turn to a review of harm. The standard of review for errors in the jury charge depends on whether the defendant properly objected. Mann, 964 S.W.2d at 641; Almanza, 686 S.W.2d at 171; Gornick, 947 S.W.2d at 680. If a proper objection was raised, reversal is required if the error "is calculated to injure the rights of defendant." Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is reversible unless it is harmless. Id. If a defendant does not object to the charge, reversal is required only if the harm is so egregious the defendant has not had a fair and impartial trial. Rudd, 921 S.W.2d at 373. Where there has been no objection, we will reverse only if the appellant has shown that the error caused him or her egregious harm. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994); Peterson, 942 S.W.2d at 208. In this case, Coleman argues that the instruction constitutes a comment on the weight of the evidence, and as submited, assumes the existence of an element of the offense and instructs the jury as to what facts support that conclusion. Therefore, he suggests, the instruction invited the jury to give more weight to the testimony of the State's witnesses, because they were the only witnesses to testify about matters from which intent could be inferred (since the defendant testified he did not commit the act). However, that same situation also existed in Brown. The court found, even in a situation where the claimed error was preserved by objection, that the instruction was "mild, neutral, and an obvious common-sense proposition." Brown, 2003 Tex.Crim. App. LEXIS, at 910 *23. The court concluded the error was not in any sense harmful under Almanza and affirmed. If this instruction did not meet the test of causing some harm to the defendant in Brown, the same instruction here cannot constitute egregious harm. We find the error to be harmless. We affirm the judgment of the trial court.