MIKE WILLSON JUSTICE

On Appeal from the 32nd District Court Mitchell County, Texas
Trial Court Cause No. 7179B

MEMORANDUM OPINION

The jury found Manuel Menjares guilty of the second-degree felony offense of aggravated assault with a deadly weapon. The jury found two enhancement allegations to be "true" and assessed punishment at confinement for thirty-five years. The trial court sentenced Appellant accordingly. We affirm.

I. Evidence at Trial

Because Appellant does not challenge the sufficiency of the evidence, we only outline those facts necessary to address his issues on appeal.

A. The Altercation

On the evening in question, James Anthony Augustus Arthur Hearin came home from work to help his wife with their children. After they put their children to bed, they went outside to the sidewalk in front of their house, where their neighbor, Antonio Gonzales, joined them. Appellant, who lived across the street, began yelling racial epithets at James and Gonzales. Appellant continued to yell at them as he approached James's yard; James warned Appellant not to come onto his property.

Appellant, however, came onto James's property, and Appellant and James began to fight. The fight began in James's yard, but quickly moved into the street. There, Appellant yelled to his wife, Patricia Esparza, who brought him a garden hoe with a metal blade. Appellant swung the garden hoe at James but missed and, instead, snapped the wooden handle over James's arm.

At this time, Gonzales and Kelly Hearin, James's brother, attempted to stop the fight. Appellant again swung the blade of the garden hoe at James, but this time Kelly blocked it with his hand. The palm of Kelly's hand was severely cut by the blade; James testified that he thought the blow from the garden hoe could have killed him, had Kelly not blocked it.

B. Defense Theories

Appellant's and Esparza's testimony differed substantially from other witnesses. First, they contended that Appellant was attacked by some combination of Gonzales, James, and Kelly and that Appellant had acted only in self-defense. Further, they asserted that Appellant was not physically capable of committing assault. They testified that Appellant had limited use of his right hand because of a prior injury and that he had a heart condition that affected his ability to defend himself. At trial, in an effort to rebut Appellant's claim of self-defense and his claim that he was not physically capable of committing assault, the State offered evidence that Appellant had twice been convicted of assault family violence.

II. Issues Presented

Appellant complains in the first and second of five issues that the trial court erred when it admitted into evidence two prior assault-family-violence convictions committed by Appellant. In his third issue, Appellant argues that the trial court erred when it denied his request to reopen testimony. Appellant maintains in his fourth issue that the trial court erred when it failed to provide the jury with a specific question on a deadly weapon finding. In his final issue, Appellant asserts that the trial court erred when it denied a motion for a mistrial that he had made based upon the fact that a member of the jury that convicted him had also been a member of the grand jury that indicted him.

III. Standards of Review

We review Appellant's first, second, third, and fifth issues for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (first and second issue); Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) (third issue); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (fifth issue); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (fifth issue). Under an abuse of discretion standard, we will reverse the trial court's decision only if the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. See Montgomery v. State, 810 S.W.2d 372, 390-92 (Tex. Crim. App. 1991). We will uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id. at 391. Appellant's fourth issue is reviewed under the standard of whether there was error in the jury charge and, if so, did the error cause actual harm. Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003) (harm analysis); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (error in charge); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (harm analysis).

IV. Discussion and Analysis

First, we will address Appellant's fourth issue.

A. Issue Four: Alleged Jury Charge Error

Appellant complains that the trial court erred when it did not give the jury the option to make, or not make, a specific weapon finding in the verdict form. In a case where the jury decides punishment, the jury is the proper factfinder to decide whether a deadly weapon was used. Polk v. State, 693 S.W.2d 391, 395 (Tex. Crim. App. 1985). A deadly weapon is defined as, "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." PENAL § 1.07(a)(17) (West Supp. 2015). The court will assume that the jury has made a deadly weapon finding in certain circumstances. Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009); Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003) (citing Polk, 693 S.W.2d at 394). In Crumpton, the Court of Criminal Appeals outlined the following circumstances:

1. when a jury affirmatively answers a special deadly weapon issue in the jury charge;

2. when the instrument used in the commission of the offense is a deadly weapon per se, such as a pistol or firearm;

3. when the indictment alleges the use or exhibition of a deadly weapon and the jury finds the defendant guilty of the offense as alleged in the indictment;

4. when the verdict is based on an application paragraph that expressly requires the jury to find the defendant used a deadly weapon; or

5. when the indictment alleges the defendant caused death or serious bodily injury.

In Appellant's case, the amended indictment alleged the following in "Count 1":

MANUEL MENJARES on or about the 17^th day of July, A.D. 2009, and before the presentment of this indictment, in said County and State did then and there intentionally, knowingly or recklessly cause bodily injury to Kelly Gerald Hearin by cutting his hand with a garden hoe and the defendant did then and there use or exhibit a deadly weapon, to-wit: a garden hoe, that in the manner of it[s] use and intended use was capable of causing death and serious bodily injury, during the commission of said assault[.]

The jury charge contained the definition of deadly weapon, and the jury found as follows: "We, the jury, find the defendant, MANUEL MENJARES, GUILTY of Aggravated Assault with a Deadly Weapon, as alleged in Count 1 of the indictment." The presiding juror signed the verdict. Under the precedent outlined in Crumpton, the jury made a deadly weapon finding when it found Appellant guilty of aggravated assault as alleged in "Count 1" of the indictment. See Crumpton, 301 S.W.3d at 664. We hold that the trial court did not err when it refused Appellant's request to include in the jury charge a separate question on the use of a deadly weapon. Because there was no jury charge error, we need not address the issue of harm. Middleton, 125 S.W.3d at 453-54; Hutch, 922 S.W.2d at 170; Almanza, 686 S.W.2d at 171. We overrule Appellant's fourth issue.

B. Issues One and Two: Admission of Assault-Family-Violence Convictions

Appellant argues that the trial court abused its discretion when it admitted evidence of Appellant's two previous assault-family-violence convictions that involved his wife, Esparza. One conviction was in Lubbock County in 2007, and the second conviction was in Scurry County in 2009. At trial, Appellant's trial counsel objected to relevance, objected to the character conformity nature of the evidence, and objected to the prejudicial nature of the evidence outweighing any probative value. On appeal, Appellant refers to the same objections in support of his argument that the evidence was inadmissible. Appellant also complains that the trial court improperly determined that an assault-family-violence conviction is a crime of moral turpitude.

1. Evidence Used to Rebut Defensive Theories

We review the trial court's admission or exclusion of evidence under an abuse of discretion standard. De La Paz, 279 S.W.3d at 343. Evidence of an individual's bad character is generally not admissible to show that he acted in conformity therewith. See TEX. R. EVID. 404; Montgomery, 810 S.W.2d at 386-88. But extraneous offense evidence can be admissible if it is relevant for another purpose and its probative value substantially outweighs the danger of unfair prejudice. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983).

Such evidence can be used to rebut a defensive theory such as self-defense. Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref'd). In Render, we held that extraneous offenses were admissible to show that the defendant was the first aggressor where the defendant had claimed self-defense in response to an assault charge. Id. Such evidence also may be used to rebut a defense of physical inability. See Ivey v. State, 212 S.W.2d 146, 148 (Tex. Crim. App. 1948). In Ivey, the court held that a witness could testify as to the defendant's strength and fighting prowess and the injuries the witness had suffered at the defendant's hands because the defendant claimed he was physically incapable of fighting or committing an assault. Id.

Appellant asserted that he acted in self-defense and that he was not physically capable of an assault on the victim. The State offered evidence of two assault-family-violence convictions arising from prior assaults committed by Appellant against Esparza; the State wanted to use this evidence to rebut Appellant's claim of self-defense and his claim that he was not physically capable of committing assault. The trial court, after hearing the evidence and arguments from counsel, ruled that the evidence on the assault-family-violence convictions was a direct rebuttal of the claim that Appellant was physically incapable of assaulting someone. The trial court ruled that the evidence was relevant and that the probative value of the evidence outweighed any prejudicial effect that it might have. Therefore, the trial court ruled that the evidence was admissible.

Appellant's two assault-family-violence convictions were admissible to rebut his claim that, due to his physical condition, he was incapable of assaulting anyone. Esparza testified that Appellant had injured his right hand and had a heart condition that rendered him incapable of committing an assault. The State sought to rebut that testimony and, in an effort to do that, elicited from Esparza facts regarding two prior occasions on which Appellant had assaulted her; both incidents occurred prior to the altercation with James and Kelly. In De La Paz, the State was allowed to offer testimony of prior sexual assaults of girls by the defendant to rebut the defendant's claim that the complainant had fabricated her claim of sexual assault. De La Paz, 279 S.W.3d at 345. In an older case, Ivey, the court held that evidence of a prior victim's severe injuries and of the defendant's strength was admissible to rebut the defensive theory that the defendant was incapable of inflicting severe injury in an assault. Ivey, 212 S.W.2d at 148. But even if the trial court was incorrect on this theory, under our own precedent, the prior convictions were admissible to rebut the defensive theory of self-defense by showing that Appellant was a first aggressor. See Render, 347 S.W.3d at 921.

2. Rule 403 Balancing Test

Appellant asserts that Rule 403 still barred the assault-family-violence convictions because their probative value was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. The approach under Rule 403 is to "admit relevant evidence unless the probative value of that relevant evidence is substantially outweighed by the danger of unfair prejudice to a defendant." Montgomery, 810 S.W.2d at 389 (quoting Crank v. State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988)). So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be. Id. at 390. The balancing test under Rule 403 requires us to review:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;

(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

In the case now before us, the assault-family-violence convictions that were used to rebut Appellant's claims of physical incapability and self-defense were compelling evidence, and the convictions showed that he committed the offenses. In addition, the evidence was not likely to impress the jury in an irrational way, and the time to develop the evidence was minimal. Finally, the State's need for the evidence to rebut the defensive theories of physical incapacity and self-defense were pronounced, and the lack of similar probative evidence, given the nature of the case, weighed in favor of the inclusion of the evidence. After a review of the record, we cannot say that the trial court abused its discretion when it admitted evidence of the two assault-family-violence convictions.

In light of the trial court's ruling and our holding on the admissibility of the prior assault-family-violence convictions, we need not address Appellant's issue about whether assault family violence is a crime of moral turpitude. We overrule Appellant's first and second issues.

C. Issue Three: Motion to Reopen Testimony

Appellant argues that the trial court abused its discretion when it denied his request to reopen testimony so that he could recall James and cross-examine him a third time. We review the trial court's decision not to reopen testimony for an abuse of discretion. Peek, 106 S. W.3d at 78-79. We will not disturb the trial court's ruling as long as it is correct under any theory of law applicable to that ruling. De La Paz, 279 S.W.3d at 343.

Article 36.02 of the Texas Code of Criminal Procedure provides that the "court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007). In Peek, the Court of Criminal Appeals interpreted "necessary to a due administration of justice," under Article 36.02, to mean that "a judge should reopen the case if the evidence would materially change the case in the proponent's favor." Peek, 106 S.W.3d at 79. Relevancy is insufficient; the evidence must be material such that the evidence would make a difference in the case and not merely be cumulative of evidence already admitted. Id.

Appellant had the opportunity to question James twice: once when the State called him to testify and a second time when Appellant's counsel called him in Appellant's case-in-chief. When Appellant's counsel requested to recall James again, the trial court noted that the testimony Appellant sought to elicit was already in the record. Appellant's counsel admitted that he had already questioned James twice about the sequence of events. Appellant's counsel also conceded that he had a copy of James's affidavit before he called James to testify in Appellant's case-in-chief.

Appellant's counsel noted differences from James's trial testimony and argued that his third attempt to impeach James would give the jury a "more full picture" of what "really happened" and a "more complete picture" of that night. Appellant's counsel argued that the impeachment evidence would show that Appellant grabbed the hoe after he was on the ground and being beaten by others, but Appellant and Esparza had already given their accounts of that night. Appellant's counsel did not explain how the sought-after testimony, if it could be elicited, would materially change the case in Appellant's favor. After a review of the record, we cannot say that the trial court abused its discretion when it determined that the reopening of testimony to question James a third time would not elicit testimony that would materially change the case in Appellant's favor. We overrule Appellant's third issue.

D. Issue Five: Denial of Motion for Mistrial

Appellant argues that the trial court abused its discretion when it denied his motion for mistrial, which he claims was necessary because a juror who sat on the jury that convicted him had been a member of the grand jury that indicted him. Appellant argues that harm is presumed because the trial court made no inquiry into harm. We review the trial court's ruling on a motion for mistrial under an abuse of discretion standard. Webb, 232 S.W.3d at 112. We view the evidence in the light most favorable to the trial court's ruling and uphold that ruling if it is within the zone of reasonable disagreement. Id. (citing Wead, 129 S.W.3d at 129). A trial court abuses its discretion when it denies a motion for new trial only when no reasonable view of the record could support its ruling. Id. (citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).

Article 35.16(a)(7) of the Code of Criminal Procedure provides that a defendant may challenge for cause a panelist that served on the grand jury that returned the indictment against him. CRIM. PROC. art. 35.16(a)(7); see Webb, 232 S.W.3d at 112. Prior service on the grand jury raises a question of implied bias, which may be challenged or forfeited. Webb, 232 S.W.3d at 113 (citing Mitchell v. State, 27 S.W.2d 800 (Tex. Crim. App. 1930)).

In Mitchell, the defense, during voir dire, timely and properly raised the question of implied bias of a panelist that had served on the grand jury that returned the indictment; the defendant did not forfeit the question and exercised his statutory right to challenge the venireman. Mitchell, 27 S.W.2d at 800. In contrast, here, Appellant did not question the veniremembers about prior service on the grand jury and did not raise the issue until after the verdict had been returned—but before the verdict had been entered. Thus, Appellant did not timely raise the issue and forfeited his complaint regarding the possibility of implicit bias of that juror. Webb, 232 S.W.3d at 113. Because Appellant has forfeited his right to complain about this issue, we overrule Appellant's final issue.

I. This Court's Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE May 27, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.