Summary
rejecting contention that defendant's statement, "I don't need you bitch," when he threw a plate at the victim "expresses anger or frustration, as opposed to any threat or intent to injure"; the jury could consider the statement "as a threat to [the victim's] personal safety."
Summary of this case from Bailey v. State No. 05-07-00605-CR
Opinion Filed January 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F07-00462-L.
Before Justices O'NEILL, RICHTER, and LANG.
MICHAEL J. O'NEILL, Justice.
A jury convicted appellant Cameron Dean McCullough of aggravated assault with a deadly weapon. Appellant entered pleas of not true to two enhancement paragraphs. The trial court found the enhancement paragraphs true and set punishment at thirty-three years' confinement. In four points, he alleges the evidence is legally and factually insufficient to establish his actions caused bodily injury and to establish a broken glass piece is a deadly weapon. In a separate point, he asserts he was entitled to an instructed verdict because the State failed to prove he used a deadly weapon. In two final points, he asserts the trial court erred by not sua sponte granting a mistrial when the prosecutor engaged in prejudicial jury argument. We affirm.
Factual Background
On August 30, 2006 at approximately 7:40 a.m., complainant Lachunda Perry found a man sleeping on her couch, whom she did not recognize. Perry and appellant began arguing because Perry was upset that an unknown man was in the house with her and her children. She learned later the man was appellant's friend. During the argument, appellant started choking her, but she scratched his face and he released the choke hold. She then ran into the kitchen to get a knife and defend herself. He came after her, but appellant's friend intervened to stop the fight. She called 911 and said she was being assaulted; however, she could not complete the conversation because appellant pulled the cord out of the wall. He said "I don't need you bitch" and threw at plate at her. Perry fell and passed out for a couple of seconds. When she came to, she could not see because a shattered piece of the plate cut her above the eye, which caused profuse bleeding down her face. When appellant went outside, she followed him and tried to stab his car tires. They continued to argue, and she got in the car in an attempt to stop him from leaving. He pulled her out and started punching her. She then fell unconscious in the driveway. Officer James Standlee, an officer with the Irving police department, later found Perry in the driveway hysterical, crying, and covered in blood. He was concerned for her safety and any possible life-threatening injuries because of all the blood. He further observed she appeared to be in pain. Perry told Officer Standlee appellant threw a plate at her. She mentioned appellant had beaten her severely in the past. She also asked about getting a protective order because she wanted help. When Officer Standless checked the premises, he found the kitchen in disarray. He also observed blood on the wall, the broken plate, the knives on the floor, and the phone pulled out of the wall, which corroborated Perry's story. Perry was transported to the hospital, where she received twenty stitches to close the laceration. A doctor also ordered a CAT scan to rule out possible head trauma. According to nursing notes, Perry said she was assaulted by her significant other-specifically, getting hit in the face with a plate. Perry met with investigator Mona Gutierrez from the Irving police department the following day and again said appellant assaulted her. The interview lasted about an hour, and Gutierrez noted Perry still seemed scared. Perry acknowledged she was too scared to go home because she was afraid appellant would return and hurt her. On September 20, 2006 Perry signed a protective order affidavit in support of her application for protective order. She also admitted she requested assistance from the Crime Victims Compensation Fund to relocate. Despite telling an officer, a nurse, and an investigator that appellant assaulted and injured her by throwing a plate at her face, Perry later recanted her story after she began visiting appellant in jail. After approximately thirty visits, she filed an affidavit of non-prosecution on November 15, 2006. She continued to "beg" the State to drop the charges because she wanted to marry him. During trial, Perry denied talking to Officer Standlee or Investigator Gutierrez. She also denied making any accusatory statements to the nurse at the hospital. She explained she made up the story because she was mad at appellant for allowing someone she did not know to sleep on their couch without her permission. She also claimed she threw the plate at appellant and received injuries by the pieces flying back towards her. She admitted, however, that she requested money from the Crime Victims Compensation Fund and signed a protective order affidavit. The jury found appellant guilty of aggravated assault with a deadly weapon. After finding enhancement paragraphs true, the trial court set punishment at thirty-three years' confinement. This appeal followed. Sufficiency of the Evidence
In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's guilty verdict was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under both standards of review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). 1. Deadly Weapon
In his fourth and fifth points, appellant argues the evidence is legally and factually insufficient to establish a broken plate piece is a deadly weapon. To obtain a conviction for aggravated assault with a deadly weapon, the State was required to prove beyond a reasonable doubt that appellant used or exhibited a deadly weapon to intentionally, knowingly, or recklessly cause bodily injury to Perry. Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2007). "Deadly weapon" means "a firearm or anything manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury" or "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(A)-(B). A piece of broken plate is not a deadly weapon per se so the State was required to prove that, in the manner of its use or intended use, the broken plate was capable of causing death or serious bodily injury. Id. § 1.07(a)(17)(B). The provision's plain language does not require the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000) (emphasis added). Thus, we focus our analysis on whether the weapon was capable of causing death or serious bodily injury and not whether it actually caused serious bodily injury. Several factors are used in determining whether an object is capable of causing death or serious bodily injury. They include (1) physical proximity between the victim and object, (2) threats or words used by defendant, (3) size and shape of the weapon, (4) the weapon's ability to inflict death or serious injury, and (5) the manner in which the defendant used the weapon. Bailey v. State, 46 S.W.3d 487, 492 (Tex.App.-Corpus Christi 2001, pet. ref'd). No one factor is determinative, and each case must be determined on its own facts. Id. After considering these factors, we conclude the evidence is both legally and factually sufficient to establish that a broken piece of plate is a deadly weapon. Officer Standlee testified the kitchen area was approximately five feet wide; therefore, despite appellant's contentions that there is no evidence as to their physical proximity when he threw the plate, the jury heard it was a fairly small area. From this testimony, the jury was free to conclude the two were fairly close when the assault occurred. See, e.g., Harrod v. State, 203 S.W.3d 622, 629 (Tex.App.-Dallas 2006, no pet.) (noting jury is entitled to draw reasonable inferences and logical deductions from the evidence). Likewise, appellant was close enough to strike her in the face, which caused both a one inch laceration that bled profusely and a brief loss of consciousness. The jury also heard testimony that appellant said "I don't need you bitch," when he threw the plate. Appellant contends this statement expresses anger or frustration, as opposed to any threat or intent to injure Perry. Although this is one possible interpretation, the jury was free to consider the statement, in light of the circumstances, as a threat to her personal safety. See, e.g., Bailey, 46 S.W.3d at 492 (considering "After tonight you are not going to play with me anymore," as a threat in deadly weapon analysis); see also Harrod, 203 S.W.3d at 629 (noting jury is entitled to draw reasonable inferences from evidence). The size and shape of the broken plate piece cannot be determined because it was not entered into evidence. Because no single factor is determinative in our deadly weapon analysis, this lack of evidence does not preclude a deadly weapon finding by the jury. Id. at 491-92 ("A jury may determine a weapon is capable of causing death or serious bodily injury even if it is not in evidence."). Appellant argues the broken plate piece was incapable of causing death or serious bodily injury because Perry did not die, and she suffered no permanent disfigurement or loss of bodily function. His arguments are without merit. Officer Standless testified a broken piece of plate could be a deadly weapon. The jury also heard testimony the broken plate piece caused a one inch laceration above Perry's eye that bled profusely and required approximately twenty stitches. She briefly lost consciousness when it hit her, and the emergency room doctors performed a CAT scan to ensure there was no internal damage. Finally, considering all the above evidence, the jury could conclude appellant used the broken plate piece in a manner capable of causing serious bodily injury. Although Perry claimed she threw the plate, the jury was free to weigh the credibility of her testimony against Officer Standlee and Investigator Gutierrez. After considering the above factors, we conclude the evidence is legally sufficient for the jury to find that appellant used a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(B). We also hold the jury's finding is not clearly wrong or against the great weight and preponderance of the evidence as to be factually insufficient. Thus, we overrule appellant's fourth and fifth points. 2. Bodily Injury and Intent
In his first and second points, appellant claims the evidence is legally and factually insufficient to establish he caused bodily injury or alternatively, that he had the requisite intent to cause injury. As explained in detail above, the evidence is both legally and factually sufficient to establish appellant caused bodily harm by throwing a broken plate at Perry's face. The jury was free to reject Perry's testimony that she threw the plate, especially in light of testimony that she wanted appellant cleared of charges so they could continue their relationship. The jury instead could believe Investigator Gutierrez who testified it was common for a party to cooperate in a domestic violence investigation, but later recant because she realizes she is invested in the relationship. We likewise conclude the evidence is legally and factually sufficient to conclude appellant acted with the requisite intent to cause injury. See Tex. Penal Code Ann. § 22.01(a)(1) (intentionally, knowingly, or recklessly causing bodily injury). The accused's intent may be inferred from his words, acts, and conduct at the time of the offense. Donoho v. State, 39 S.W.3d 324, 328 (Tex.App.-Fort Worth 2001, pet. ref'd). Here, appellant threw the plate piece at Perry, while in close proximity, and said "I don't need you, bitch." Appellant then walked away and left Perry bleeding and temporarily unconscious on the kitchen floor. A rational jury could infer his intent to cause bodily injury from these actions. Thus, we overrule appellant's first and second points. 3. Instructed Verdict
In his third point, appellant challenges the trial court's denial of his motion for an instructed verdict on the grounds that the State failed to establish use of a deadly weapon. It is well-settled a challenge to the ruling on a motion for instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990); Gemoets v. State, 116 S.W.3d 59, 64 (Tex.App.-Houston [14th Dist.] 2001, no pet.). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling the motion for instructed verdict. Madden, 799 S.W.2d at 686. Because we have concluded the evidence is sufficient to support appellant's conviction, his third point is overruled. Jury Argument
In his sixth and seventh points, appellant argues the trial court erred by failing to declare a mistrial sua sponte when the State engaged in impermissible and prejudicial jury argument. He claims the argument was so extreme that it could not be cured by an instruction to disregard. During trial, the State attempted to elicit testimony regarding Perry's recent miscarriage. She testified she did not want to talk about it and did not remember stating in an affidavit for protective order that appellant caused her miscarriage. In closing argument, the State remarked, "That's the kind of man you're dealing with here. A man who would cause a miscarriage to his wife in the past, who would assault her while she's pregnant." Defense counsel objected because it presumed facts not in evidence, and the court sustained the objection. Counsel then requested that portion of the record be stricken, and the trial court stated "the jury will be instructed to disregard that last remark." To preserve error in cases of prosecutorial misconduct, the defendant must (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial. See Tex. R. App. P. 33.1(a); see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Defendant's failure to object to a jury argument or his failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Cockrell, 933 S.W.2d at 89. Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he must show he objected and pursued his objection to an adverse ruling. Id. Here, appellant obtained a favorable ruling on his request for an instruction to disregard; however, he failed to then request a mistrial. The Texas Court of Criminal Appeals has expressly refused to create an exception to this rule because an argument is "manifestly improper." Threadgill v. State, 146 S.W.3d 654, 670 (Tex.Crim.App. 2004). Based on the foregoing, we hold appellant has waived his argument on appeal. Thus, we overrule his sixth and seventh points. Having overruled all of appellant's points, we affirm the trial court's judgment.