No. 05-08-01512-CR
Opinion Filed December 14, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-55884-QY.
Before Justices O'NEILL, FRANCIS, and LANG.
Opinion By Justice LANG.
After a jury trial, appellant Kenneth Thomas was found guilty of aggravated assault and sentenced to twenty-five years' confinement. In his sole issue on appeal, Thomas contends his due process rights were violated by the trial court's refusal to submit to the jury the issue of whether Thomas had a "family relationship" with the victim. Based on the record and analysis below, we decide his sole issue against him. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2007, Kenneth Thomas struck Nydia Hicks with his car outside of her house located in Dallas, Texas. Hicks testified that at the time of the incident she had been dating Thomas for about a year, and that he occasionally stayed over at her house. Hicks testified that on the day of the incident, she and Thomas had an argument that began inside the house and continued in her driveway. According to her testimony, they were "yelling" outside of Thomas's car and "tussling" over her cell phone. Thomas grabbed her cell phone and got into his car. Hicks noticed two men "coming down the street," and walked to the end of the driveway to ask if she could use their phone. At that time, Thomas reversed his car towards her, but Hicks "jumped out of the way." Thomas "shifted gears" and drove forward towards Hicks's two children who were standing in the lawn. Thomas hit the children with his car, and then proceeded to run over Hicks. As a result of the collision, Hicks suffered "serious bodily injuries." Thomas was charged with aggravated assault in the first degree for using a deadly weapon and causing serious bodily injury to a person with whom he had a "dating relationship" or was a member of his household or family. On October 27, 2008, Thomas entered a plea of not guilty. At trial, Thomas requested a special issue in the jury charge on "family violence," and again at the close of the evidence, he requested a special issue on "family violence," and argued that the State "should be forced to elect between a state of mind." The court overruled Thomas's objection. In the punishment phase of the trial, the jury was charged only on the punishment range for a first degree felony. Thomas objected to the jury charge and stated that he was "renew[ing] [his] previous objection on the charge about the special issue and the range of punishment." The court overruled the objection. After the jury returned a verdict of twenty five years' confinement, Thomas timely filed a notice of appeal. II. JURY CHARGE ERROR
In his sole issue, Thomas contends his due process rights were violated by the trial court by refusing to submit a special issue on whether Thomas had a "family relationship" with the victim. He argues the failure to submit a special issue on the family relationship violated his due process rights. A. Standard of Review
An appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (citing Hutch v. State 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). Then, if error is found, the appellate court must determine whether the error caused sufficient harm to require reversal. Middleton, 125 S.W.3d at 453; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), rev'd on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2010); Ngo, 175 S.W.3d at 743. Error in the charge, if timely objected to in the trial court, requires reversal if the error was "calculated to injure the rights of defendant." See Tex. Code Crim. Proc. Ann. art. 36.19. This means that if the charge contains error and the error has been properly preserved by objection, reversal is mandated as long as the error is not harmless. Almanza, 686 S.W.2d at 171. However, if no objection was made at trial, reversal is proper only if the error is so egregious and created such harm that it might be fairly said the defendant did not have a fair and impartial trial. Id. B. Applicable Law
Under the Texas Penal Code, a person commits aggravated assault in the first degree if the "actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship or association with the defendant is described by section 71.0021(b), 71.003, or 71.005, Family Code. . . ." Tex. Penal Code Ann. § 22.02(b) (Vernon 2008); see Tex. Fam. Code Ann. §§ 71.002(b), 71.003, 71.005 (Vernon 2008) (defining "dating relationship," "family," and "household"). Specifically, the Texas Family Code defines a dating relationship as a "relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature." Tex. Fam. Code Ann. §§ 71.002(b) (Vernon 2008). Although aggravated assault is a second degree offense, if the prosecution can prove the defendant was in a "dating relationship" or was a member of the complainant's "family" or "household," the defendant may be convicted of aggravated assault in the first degree. See Tex. Penal Code Ann. § 22.02(b) (Vernon 2008). If a defendant is convicted of first degree aggravated assault, the defendant faces a punishment range of five to ninety-nine years or life imprisonment. Tex. Penal Code Ann. § 12.32 (a) (Vernon 2008). The punishment for a second degree felony is limited to "not more than 20 years or less than 2 years" imprisonment. Tex. Penal Code Ann. § 12.33 (a) (Vernon 2008). C. Application of Law to Facts
Thomas argues that the trial court's failure to submit the special issue of whether Thomas and Hicks had a "family relationship" violated his due process rights. He contends that the family relationship issue should have been given to the jury at some point in the trial and that it was harmful error for the court not to submit the issue to the jury. The State concedes in its brief before this Court that the relationship of the parties was a fact that would affect the range of punishment and that Thomas was entitled to have the relationship issue determined by the jury. However, the State argues the error was harmless and does not warrant reversal. The "dating" or "family relationship" element distinguishes first degree from second degree aggravated assault. See Tex. Penal Code Ann. § 22.02(b) (Vernon 2008). Because the relationship between the defendant and the victim affects the degree of the offense, Thomas was entitled to have the jury consider the relationship between him and Hicks before being sentenced under the first degree felony range. See Calton v. State, 176 S.W.3d 231, 233 (Tex. Crim. App. 2005) (when the plain language of a statute delineates facts or circumstances that distinguish between degrees of an offense the distinguishing circumstance should be treated as an element of the offense and must be proven in the guilt or innocence stage). We agree with Thomas and the State that the court should have included the relationship issue in its charge to the jury. See id. The trial court erred in not submitting the family relationship issue to the jury. See Apprendi v. New Jersey, 530 U.S. 473, 476-77 (2000). Despite the trial court's error, we will not disturb the trial court's judgment unless there was sufficient harm. See Almanza, 686 S.W.2d at 171. The degree of harm necessary for reversal depends on whether the error was preserved. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. 1996) Thomas contends the error was properly preserved because he requested a special issue as to "family violence" in the guilt and innocence phase as well as the punishment phase. Although Thomas requested a special issue based on the family code, he did not make a due process objection to the trial court. Because he complains on appeal that his due process rights were violated, but did not make a trial objection on the basis of due process, he did not preserve the error for appeal. We apply the "egregious harm" standard. Id. In determining whether harm resulted from the trial court's omission of the relationship element in the application paragraph of the jury charge, we must determine the actual harm in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record. Ngo, 175 S.W.3d at 750 (citing Almanza, 686 S.W.2d at 171). In the case before us, the evidence about Thomas and Hick's relationship was undisputed and uncontradicted. Hicks testified that, at the time of the incident, she and Thomas had been in a relationship for about a year and were intimately involved. During the State's closing argument, the prosecutor argued all the elements of the offense, including the relationship between Thomas and Hicks. Moreover, in its closing statement, the defense characterized the event as a "lover's quarrel" at the time of the incident. Consequently, the record suggests the issue seems to have been taken as "given" at trial. See Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1986) (concluding defendant was not harmed when the court's charge failed to include punishment range if enhancements found not true because record showed all parties, including defendant, assumed fact of prior conviction which was proven beyond a reasonable doubt). If the evidence of the family relationship had not been as strong, or if the appellant had contested it in any fashion, this issue would not be as clear cut. Id. However, this record clearly establishes that all parties, including Thomas, understood the relationship between the appellant and Hicks to be a dating relationship. As such, we cannot conclude appellant was egregiously harmed by the trial court's error in failing to submit the issue to the jury. See id. III. CONCLUSION
We decide Thomas's sole issue against him and affirm the trial court's judgment.