No. 05-04-01513-CR
Opinion issued March 26, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the County Court at Law No. 2 Collin County, Texas Trial Court Cause No. 002-82016-02.
Before Chief Justice THOMAS and Justices BRIDGES and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, JUSTICE ASSIGNED.
A jury found appellant Kenneth King guilty of assault causing bodily injury to his biological daughter, a family member. The trial court assessed appellant's punishment at 49 days in the Collin County Jail. This appeal followed, in which appellant presents a sole issue: whether the trial court erred by refusing appellant's request for a jury instruction regarding parental discipline under section 9.61 of the Texas Penal Code. See Tex. Pen. Code Ann. § 9.61 (Vernon 2003). Concluding no reversible error has been shown, we affirm the judgment.
The date of the offense was April 5, 2002 and the jury trial was held on October 6, 2004.
Background
The State's witnesses were all reluctant witnesses. Jeanette King testified she had been appellant's wife since 1982. They had three children. She, her two daughters, Jeminesse and Kennethea, a friend, and appellant were all present in their home on April 5, 2002. At the time of trial, Jeminesse was twenty-two years old; Kennethea was eighteen. When asked what appellant had been consuming on April 5, Jeanette invoked the Fifth Amendment. Outside the jury's presence a hearing was held on the admission of a 911 tape. After Jeanette authenticated the tape, it was admitted into evidence over objection. In the jury's presence, Jeanette tesified she did not recall the events of April 5 except for hearing her daughters screaming. The tape was played for the jury. On the tape, Jeanette told the 911 operator appellant was drinking and on controlled substances. Jeanette testified she called 911 because the "situation was out of control." She could not handle it. Jeanette was in the back room when she heard yelling and screaming between her husband and two daughters. Everything was in chaos and turmoil; everyone was upset. It was "just insane." Following the offense, Jeanette gave a written statement. When it was offered at trial, defense counsel objected on hearsay grounds. The State then offered it for the purpose of impeachment. The trial court disallowed the contents of the statement before the jury. Through Jeanette, the State offered pictures of Jeminesse and Kennethea taken the evening of the offense. On cross-examination, Jeanette testified she had never called 911 before. Her husband and her youngest daughter had bad tempers and it was "not a real good mix." On redirect examination, the State offered, and the trial court admitted, Jeanette's statement under rule 803. See Tex. R. Evid. 803. The statement was read to the jury. Jeanette did not see any of the events. Both she and her husband disciplined the children. Their discipline was usually to take away privileges; they did not use corporal punishment. Benjamin Thurmond testified he had been a police officer for the City of Plano for five years. Thurmond was trained in domestic violence. On April 5, 2002, he was working routine patrol when he received a domestic violence call. He responded to the call and was backed up by Officer Shaughnessy. The two officers went to 3620 Wandering Trail in Plano, arriving about the same time but in separate cars. Shaughnessy made the initial contact with the people inside the residence; Thurmond confronted the appellant outside. Appellant appeared intoxicated. Thurmond asked appellant what happened. Appellant was upset that his daughters had been disrespectful to his wife and he wasn't going to stand for it. Thurmond understood appellant referred to verbal, not physical, disrespect. Thurmond observed belt marks across the abdomen of one of the daughters. Thurmond made the decision to arrest appellant. Shaughnessy took statements from the witnesses. Shaughnessy has since resigned from the Plano police department. Kennethea King testified she was eighteen years old, but on April 5, 2002, she was sixteen years old. Kennethea was in her home on that date. There was verbal shouting on both sides between her and her father. They were arguing back and forth. Kennethea identified State's Exhibit 7 as her written statement, which was admitted into evidence without objection. In her statement Kennethea said appellant whipped her with a belt. Kennethea testified at trial that no one actually saw "it go on between us." She was not being disciplined. She had not been disrespectful to anybody. Her parents usually discipline her by "lecturing" her. Kennethea had never before been physically punished. On cross-examination, Kennethea testified nobody saw what went on with the belt. She did not remember being hit in the head. Kennethea "thinks she was provoking her father a little bit." Appellant struck her twice with the belt. Kennethea testified she and her father were both out of line but she was out of line first. When asked whether physical punishment was "not completely off the radar," Kennethea responded, "I felt like I never thought that it would even get to that point. So me, like, pushing and pushing and pushing, like, I wasn't doing it because I thought I could get away with it. That had never happened before so I didn't — it was something completely, like, bizarre to me. Everything was kind of a blur, I think." On recross-examination, the following exchange occurred between defense counsel and Kennethea: Q. [by defense counsel]: Did he tell you during the course of the altercation and as things were escalating that if you didn't start behaving that you were going to be physically disciplined?
A. [by Kennethea]: I'm sure he did. I really can't remember specifically what he would have said but-
Q. Right. Maybe not exact words but did he give you some sort of indication or warning?
A. I'm sure he did.
Q. And did you believe that he would follow through on that warning?
A. That really wasn't going through my head. I didn't really-
Q. So he did give you a warning.
A. Uh-huh.
Q. And you disregarded it?
A. Yes.
Q. Continued with your behavior.
A. Uh-huh. Yes.
Q. And he subsequently followed through on his warning of physical punishment?
A. Right.
Jeminesse King testified as follows. Jeminesse is twenty-two years old and was present with her friend on the evening of April 5, 2002. After Jeminesse testified she could not remember the events of that evening, her written statement was admitted into evidence without objection. The statement was read to the jury. Jeminesse had earlier drawn a diagram of the house before she testified. That diagram was used during her testimony and was admitted into evidence, over objection. Jeminesse was shown two pictures of her that were taken on the date of the offense. She discounted any injuries, stating at one point, "[t]o be honest with you, it looks like nothing. I mean, unless the ruler is covering it or something, but I don't see anything-[.]" She also testified there was no scratch on her arm in the picture. Jeminesse acknowledged what she had said in her statement; however, she testified she did not remember the events of April 5. When asked if she was saying the document was wrong, she replied, "[y]es, I think so." When asked if the events of the evening of April 5 caused her pain, she replied, "[n]o." On cross-examination, Jeminesse clarified that she could not confirm what was in the statement. She also reiterated she did not feel any pain. Jeminesse and her father have a good relationship now. She did not want to see him get convicted, but she would not lie to protect him. Appellant rested and closed without presenting any evidence. A charge conference was held. The initial draft of the court's charge contained a parental discipline charge; however, the State objected to that instruction as not having been raised by the evidence. The trial court asked defense counsel what evidence there was that was raised by anybody or anything that the defendant used the force and reasonably believed that it was necessary. Not being convinced by counsel's response, the trial court sustained the State's objection and removed the parental discipline instruction from the court's charge. That omission is the basis of appellant's complaint on appeal. The jury found appellant guilty of assaulting Kennethea King and not guilty of assaulting Jeminesse as instructed by the trial court. Appellant elected to have the trial judge set his punishment. Appellant pleaded true to the enhancement paragraph of the indictment that Kennethea King was a family member. Both the State and defense rested and closed on punishment without presenting any additional evidence. At the conclusion, the trial court assessed appellant's punishment at " 49 days confinement in the Collin County Jail and a zero fine. The court does not suspend the confinement." The trial court also made an affirmative finding of family violence. Procedural Background
The initial draft of the jury charge included an instruction on the parental discipline defense found in section 9.61 of the penal code. See Tex. Pen. Code Ann. § 9.61 (Vernon 2003). After the State objected on grounds parental discipline was not raised by the evidence, the trial judge removed the parental discipline instruction from the court's charge. Appellant requested that the instruction remain in the charge and presented arguments to the trial judge in support of his position. The defensive instruction was not included in the charge. Preservation of Error
The State contends error is not preserved. After the State's objection to the defensive instruction of parental discipline, the propriety of the instruction was discussed among the trial judge, the defense counsel and the prosecutor. After the trial court sustained the prosecutor's objection that the parental discipline instruction was not raised by the evidence, the instruction was removed from the charge. The record shows the trial court was aware of the appellant's objection to its removal as evidenced by the following comment of the trial court: "All right. Are there any objections to the charge other than the obvious one that you disagree with the court's ruling on the raising of the defense, but is there any other objections or requests for charge from the defense?" We conclude error on this issue has been sufficiently preserved. We now address the merits. Merits
On appeal, appellant contends the trial court reversibly erred by removing the parental discipline instruction. Appellant contends there was "plenty of evidence" to support its inclusion in the charge. Appellant is the complainant's biological father. The complainant was sixteen years old at the time of the offense. Appellant contends the trial judge focused on the subjective belief of appellant that he used the force because he subjectively believed it was necessary. Appellant contends the test is an objective, not a subjective, one and that the evidence raised the issue of whether a reasonable person would have believed the force was necessary to discipline the child or to safeguard or promote the child's welfare. Appellant cites Assiter v. State, 58 S.W.3d 743, 748 (Tex.App.-Amarillo 2000, no pet.). Appellant contends the following evidence raises the issue: The complainant was disrespectful of her father during the day by yelling and being "smart-alecky" with him. She was provoking him. Appellant was "getting sick of" the complainant's being "smart-alecky." Appellant warned complainant about her behavior. Because the complainant had never been physically punished before, she felt she could get away with "talk[ing] at" and bickering back and forth with appellant. The complainant was "out-of-line" with her father before he whipped her with the belt. The complainant disregarded appellant's warning she would be physically disciplined if she did not start behaving. Appellant followed through on his warning and whipped the complainant. Because the above evidence raised the defensive issue, the trial judge erred in not giving the parental discipline instruction. Appellant specifically points to the prosecutor's argument to the jury that it could not consider any justification appellant may have had for whipping his daughter. The State responds appellant was not entitled to an instruction on the parental discipline defense because there was no evidence he used non-deadly force when he used a buckled belt to twice hit the complainant in the abdomen as hard as he could and a reasonable person would not have believed that such degree of force was necessary to discipline her. In the alternative, the State argues appellant was not harmed by the omission of the defensive instruction because appellant's hitting the complainant in a fit of out-of-control anger was so far out of the realm of parental discipline a jury would not possibly have acquitted him under the instruction. Law
A defendant in a criminal prosecution has the right to a jury instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. See Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006); Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999) (op. on reg'g). If, however, viewed in the light most favorable to giving the instruction, the evidence does not establish the defensive issue, a defendant is not entitled to an instruction on the issue. See Granger, 3 S.W.3d at 38. The court of criminal appeals has concluded that only those defenses recognized by the legislature as either a defense or as an affirmative defense warrant a separate instruction. Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1147 (1999). Because the parental justification defense is a statutory defense recognized by the legislature, an instruction is required if there is some evidence to support it. See Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App. 2000) (op. on reh'g). Section 9.61 provides that the use of force, but not deadly force, against a child younger than 18 years is justified when and to the degree the actor reasonably believes the force is necessary to discipline the child. See Tex. Pen. Code Ann. § 9.61(a)(2) (Vernon 2003). "Deadly force" is "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Tex. Pen. Code Ann. § 9.01(3) (Vernon 2003). The State contended in the trial court and contends on appeal there was no evidence raising the parental justification defense. Appellant contends the defense was raised by the evidence at trial and by failing to include the instruction in the charge, the trial court reversibly erred. An appellate court reviews the trial court's denial of a jury instruction for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App. 2004). If the denial was error, then we must determine whether the error is reversible. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). The degree of harm required is determined by whether there was an objection to the court's charge. If there was an objection, reversal is required if "some harm" is found. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998). We first determine if the trial court erred. We first note the parental discipline defense does not apply to deadly force. It applies only to nondeadly force. Appellant did not testify at trial claiming the defense of parental discipline. We have set out in the opinion the only testimony possibly raising the issue of parental discipline. The only evidence of the degree of force used was from Kennethea. Kennethea's testimony was that appellant hit her in the abdomen with a belt with a buckle so hard it felt to her as if he had hit her as hard as he could. She fell to the couch in pain. Red welts on her abdomen were observed by the police. There was no evidence that such a blow was not capable of causing serious bodily injury in the manner of its use. Cf. Ferrel v. State, 55 S.W.3d 586 (Tex.Crim.App. 2001) (court of criminal appeals reviewed record to determine whether there was evidence appellant did not use deadly force). In other words, there was no evidence the force used was nondeadly force. We further note there is no evidence appellant reasonably believed the force used was reasonably necessary to effect discipline. The reasonable belief standard is objective, not subjective. In other words, it is the belief of a reasonable person. See Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex.App.-Fort Worth 2005, pet. ref'd). No evidence was presented that a reasonable person would have believed the force used was reasonably necessary. Appellant was drinking and using drugs at the time of the offense. His wife described his conduct as "totally out of control," "insane," and that he was "going crazy" on Kennethea. Viewing the evidence in the light most favorable to giving the defensive instruction, we conclude it falls short of raising the defense of parental discipline. Although counsel used the term "discipline" in questioning Kennethea, the evidence does not raise the issue. The core evidence needed to raise the defense was that the degree of force appellant used was not deadly, and that appellant, objectively, reasonably believed the force used was necessary to effect discipline. There was no evidence the force used was not capable of causing death or serious bodily injury. And there was no evidence that a reasonable person under the same or similar circumstances would have reasonably believed that degree of force was necessary to effect discipline. Viewing the evidence in the light most favorable to giving the instruction, we conclude the evidence falls short of raising the defensive issue of parental discipline; therefore, the trial court did not abuse its discretion in omitting such defensive instruction from the charge. See Granger, 3 S.W.3d at 38. Because we find no error occurred, we do not reach the issue of harm. See Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App. 1998) (if no error in jury charge reviewing court does not conduct harm analysis). We affirm.