Opinion
No. 11-09-00164-CV
Opinion filed April 7, 2011.
On Appeal from the County Court, Brown County, Texas, Trial Court Cause No. 2133.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury found that A.C. engaged in delinquent conduct by committing the offense of aggravated assault. The county court, sitting as a juvenile court, committed A.C. to the Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first birthday. We affirm.
I. Background Facts
T.N. lived in the same neighborhood as A.C. One evening, T.N. was riding his bicycle home when he went down an alley behind A.C.'s house. T.N. testified that A.C. and A.C.'s brother knocked him off his bicycle and hit him repeatedly. Eventually, A.C. and his brother stopped and went away. T.N. testified that he was bleeding a lot from his nose and mouth and that he was missing a few teeth. T.N. got back on his bicycle and rode home.
At home, T.N. told his grandmother that his injuries were caused by a bicycle accident. T.N. explained that he lied to his grandmother because he was afraid of being beaten up again but that his grandmother did not believe him. She took him to the emergency room in Brownwood. Hospital staff told them that T.N. would have to go to another hospital. They then drove to Cook Children's Medical Center in Fort Worth. From there, he was sent to John Peter Smith Hospital for surgery. As a result of the assault, T.N. lost three teeth and had a broken nose and a cracked jaw. T.N. told medical personnel at all three hospitals that he had been in a bicycle accident.
A few days later, T.N. revealed to his family that A.C. and A.C.'s brother assaulted him. They contacted the police. Officer Robert Mullins of the Brownwood Police Department investigated. Although he could not rule an accident out, Mullins did not think T.N.'s injuries were consistent with a bicycle accident because they were too centralized. T.N. told Officer Mullins that he was afraid of retaliation from A.C.
T.N. claimed that there were three other people in the alley at the time of the assault. Two of these people testified at the adjudication hearing. Both stated that they saw T.N. in the alley that night, but they also testified that they did not see or hear T.N. being assaulted.
The defense called several witnesses to testify that T.N. had given differing stories about the incident. T.N. admitted that he told several people that his injuries were caused by a bicycle accident. He also admitted telling people that his family forced him to say that his injuries were caused by an assault. Finally, there was testimony that T.N. was mentally slow and easily manipulated.
The jury found that A.C. engaged in delinquent conduct by intentionally, knowingly, or recklessly causing serious bodily injury to T.N. by striking him in the face.
II. Issues
A.C. raises five issues on appeal. First, he argues that the trial court erred by failing to grant a hearing on his motion for new trial alleging newly discovered evidence. In his second and third issues, he argues that his due process rights were violated when the trial court instructed the jury to find that he had engaged in delinquent conduct without requiring it to be convinced beyond a reasonable doubt of all of the required allegations. In his fourth issue, A.C. contends that the trial court erred by failing to include a definition of serious bodily injury in the jury charge. Fifth, A.C. argues that the trial court erred by failing to grant a hearing on his motion for new trial alleging jury misconduct.
III. Did the Trial Court err by Failing to Hold a Hearing on A.C.'s Motion For New Trial?
A.C. filed a motion for new trial alleging newly discovered evidence and jury misconduct and requested an evidentiary hearing. The trial court did not hold a hearing. A.C. argues that this was error.
A. Newly Discovered Evidence.
A.C. alleged he was entitled to a new trial because of newly discovered evidence and provided three supporting affidavits. A.C. alleged that this evidence was unknown to him at the time of trial, that his failure to discover the evidence was not owing to a lack of due diligence, that the evidence would probably bring about a different result at a new trial, and that it was not cumulative, corroborative, impeaching, or collateral.
First, David Franklin Chamberlain, a neighbor of A.C., testified by affidavit that, on the evening of the alleged assault, he saw T.N. have a bicycle accident in the alley in which he flew over the bicycle's handlebars and hit the ground face first. Chamberlain stated that he did not come forward sooner because he learned only after the adjudication hearing that A.C. was on trial for causing T.N.'s injuries.
Second, Arely Guadalupe Sandoval, a student at Brownwood High School and a defense witness at the adjudication hearing, submitted an affidavit alleging that, while he was waiting to testify, he saw T.N. exiting the courthouse. T.N. met his brother at the door. Sandoval stated that T.N.'s brother asked, "Did you lie?" T.N. responded, "Yes, but it's not working." Sandoval believed that T.N. meant that he had lied in court. Sandoval immediately told A.C.'s father what he had heard but did not tell the county attorney or A.C.'s attorney because he did not know that he was allowed to do so.
Third, Anthony Sanchez Sr., the father of a defense witness, submitted an affidavit stating that his former girlfriend, Sherry Nichols, was T.N.'s aunt. Sanchez and Nichols have a daughter. Their daughter is married and has a daughter of her own. After Sanchez separated from Nichols, he claimed that she accused him of molesting their daughter. Sanchez met with Brownwood Police Department officers and established that he had no access to his daughter during the time period in which the molestation allegedly occurred. Sanchez claimed that he learned Nichols accused him of molestation because her mother, T.N.'s grandmother, told her to do so. Thus, while he had no knowledge of the case, he was wary of any allegations coming from T.N.'s family. Moreover, just before trial, his daughter threatened to prohibit any visitation with his granddaughter if he allowed his son to testify at A.C.'s adjudication hearing. This threat reinforced his belief that T.N. may have been influenced to make false allegations against A.C.
In 2009, the legislature amended TEX. FAM. CODE ANN. §§ 51.17(a) and 56.01 (Vernon Supp. 2010) to provide that motions for new trials are governed by TEX. R. APP. P. 21. Act of June 19, 2009, 81st Leg., R.S., §§ 1-2, 2009 Tex. Gen. Laws 642 (relating to the rules governing a motion for new trial in juvenile cases). This amendment applies to all juvenile proceedings whose disposition takes place after September 1, 2009. Id. §§ 3-4. A.C.'s disposition order was signed on March 6, 2009. His motion for new trial is, therefore, not subject to the amendment. Under prior law, a motion for new trial was governed by the Texas Rules of Civil Procedure. See In re M.R., 858 S.W.2d 365, 366 (Tex. 1993) (juveniles are required to file a motion for new trial to assert evidentiary and procedural errors, including factual sufficiency and jury misconduct).
When a motion alleges facts that, if true, would entitle the movant to a new trial, a trial court is obligated to hear such evidence. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979). To obtain a new trial based on newly discovered evidence, a defendant must show that (1) the evidence was unknown to the defendant at the time of trial, (2) the failure to discover the evidence was not due to defendant's want of diligence, (3) the evidence has materiality in that it would probably bring about a different result in another trial, and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003). Each of these elements must be established by an affidavit of the party. In re Thoma, 873 S.W.2d 477, 512 (Tex. Rev. Trib. 1994, no appeal); Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 844 (Tex. App.-Dallas 2008, no pet.). Except when jury misconduct is alleged, the trial court's decision to hold an evidentiary hearing on a motion for new trial is reviewed for abuse of discretion. See TEX. R. CIV. P. 327(a); Hamilton v. Williams, 298 S.W.3d 334, 338 (Tex. App.-Fort Worth 2009, pet. denied). To determine whether the trial court abused its discretion, we must decide ultimately whether the trial court acted without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
A.C.'s motion for new trial did not establish that his failure to discover the evidence was not owing to a want of due diligence. While Chamberlain stated that he did not come forward earlier because he did not know about the allegations against A.C., the motion for new trial did not explain why A.C. could not have discovered Chamberlain's testimony earlier with the exercise of due diligence. Likewise, there is no explanation why the evidence provided by Sanchez, whose son was a witness for A.C. at the adjudication hearing, could not have been discovered before trial. In the absence of a showing of due diligence, the trial court was not required to hold a hearing. See Neyland v. Raymond, 324 S.W.3d 646, 652-53 (Tex. App.-Fort Worth 2010, no pet.). Moreover, the facts alleged in Sandoval's and Sanchez's affidavits primarily impeached the credibility of T.N. and, thus, would not be grounds for a new trial. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 132 (Tex. App.-Waco 2005, pet. denied) (newly discovered evidence alleging that a witness committed perjury was cumulative, impeaching, and not grounds for a new trial).
We cannot say that the trial court abused its discretion by failing to hold a hearing on A.C.'s motion for new trial based upon newly discovered evidence. A.C.'s first issue is overruled.
B. Jury Misconduct.
In support of his motion for new trial because of jury misconduct, A.C. presented the affidavit of Juror Adrian Negrete. On appeal, A.C. focuses on Negrete's allegation that the jury foreman failed to read the charge of the court aloud before beginning deliberations.
A trial court shall hold a hearing on a motion for new trial supported by an affidavit alleging jury misconduct. Rule 327(a). However, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations, nor may a juror testify in an affidavit about matters that are otherwise inadmissible. TEX. R. CIV. P. 327(b); TEX. R. EVID. 606(b) (prohibiting juror testimony as to matters occurring during jury deliberations but permitting juror to testify (1) as to whether outside influence was improperly brought to bear upon any juror and (2) to rebut a claim that a juror was not qualified to serve). Jury deliberations are the formal process beginning after the close of evidence and the jury charge, when the jury retires to weigh the evidence to arrive at a verdict. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 371 (Tex. 2000).
Here, Negrete's affidavit involved matters that occurred after the jury had retired to the jury room to deliberate. Thus, the affidavit involved matters that occurred during jury deliberations; it did not involve an outside influence or a juror's qualification to serve. As such, the affidavit was not competent to support a motion for new trial. See Rule 327(b); Rule 606(b). The trial court did not abuse its discretion by refusing to hold a hearing on the motion for new trial concerning the allegations of jury misconduct. A.C.'s fifth issue is overruled.
IV. Did the Trial Court Err in the Charge it Submitted to the Jury?
In Issues Two, Three, and Four, A.C. argues that the trial court committed reversible error in the charge it submitted to the jury.
A. "With a Closed Fist."
In Issues Two and Three, A.C. contends that the trial court erred by omitting from the jury charge the State's allegation that A.C. caused T.N.'s injuries "with a closed fist." He argues that the absence of this allegation expanded the grounds on which the jury could convict him, thereby depriving him of notice of the grounds on which he could be convicted and of his right to have all allegations in the petition proven beyond a reasonable doubt.
In effect, A.C. complains of a variance. In juvenile cases, we review variance error under the standard used in criminal cases. In re L.F.L.T.B., 137 S.W.3d 856, 858 (Tex. App.-Eastland 2004, no pet.). A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In this situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner different from the allegations in the charging instrument. Id. When reviewing a claim based upon a variance between the indictment and the proof, only a material variance will render the evidence produced at trial insufficient. Id. at 257. A variance is material if it fails to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial and if prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. at 248. A variance that is not prejudicial to a defendant's substantial rights is immaterial. Id.
The petition for adjudication alleged that A.C. intentionally, knowingly, or recklessly caused serious bodily injury to T.N. by hitting him in the face with a closed fist. The jury charge allowed a determination of delinquency if the jury found beyond a reasonable doubt that A.C. intentionally caused serious bodily injury to T.N. by striking him in the face. The jury charge's omission of the unnecessary allegation that A.C. caused the injury with a closed fist in no way surprised A.C. or impaired his ability to prepare a defense. His defense did not hinge on the means by which the alleged assault was committed. Rather, A.C. argued that there had been no assault and that T.N.'s injuries were caused by a bicycle accident. Moreover, the variance would not subject A.C. to being later prosecuted for the same crime. Thus, any variance was immaterial. A.C.'s second and third issues are overruled.
B. Instruction on Serious Bodily Injury.
A.C. next argues that the trial court erred by failing to include a definition of "serious bodily injury" in the jury charge.
If a phrase, term, or word that the jury must use to properly resolve an issue is statutorily defined, the trial court must submit the statutory definition to the jury. Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex. Crim. App. 1986). The petition for adjudication alleged that A.C. committed aggravated assault causing serious bodily injury. The Texas Penal Code defines "serious bodily injury" as "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. PENAL CODE ANN. § 1.07(a)(46) (Vernon Supp. 2010). Consequently, the trial court erred when it did not include the statutory definition of serious bodily injury in the charge.
However, A.C. admits that he did not object to the lack of a "serious bodily injury" definition at trial. In such situations, we reverse the judgment only if the error caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Egregious harm occurs when the error created such harm that the defendant has not had a fair or impartial trial. Id. To determine whether an appellant suffered egregious harm, we consider (1) the entire jury charge; (2) the state of the evidence, including the contested issues and the weight of the probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Id. This includes counsel's statements during voir dire. Fulcher v. State, 274 S.W.3d 713, 717 (Tex. App.-San Antonio 2008, pet. ref'd).
While giving an overview of the case during voir dire, the State explained:
Then you got that where it's a felony it's serious bodily injury. We're not going to get hung up on the definition of serious bodily injury now. We'll talk about it later. But those are the type of injuries that cause disfigurement, or permanent damage, breaking of bones, cuts that scar. Those are the types of things that we'll talk about for serious bodily injury, or of course, anything that's life threatening would be a serious bodily injury.
This effectively provided the jury with the statutory definition of serious bodily injury. In addition, the element of serious bodily injury was not in dispute. During closing argument, defense counsel admitted that T.N.'s injuries were serious. As noted above, A.C.'s defense was that the assault never happened and that T.N.'s injuries were caused by a bicycle accident. As such, his defense was not vitally affected by the failure to provide a definition of serious bodily injury in the jury charge. See Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Consequently, A.C. did not suffer egregious harm from the failure to include a definition of serious bodily injury in the jury charge. A.C.'s fourth issue is overruled.
V. Conclusion
The judgment of the trial court is affirmed.