Balentine v. State

Full title: BRIAN KEITH BALENTINE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Jul 13, 2011

No. 09-09-00354-CR (Tex. App. Jul. 13, 2011)

Opinion

No. 09-09-00354-CR

Submitted on March 22, 2011.

Opinion Delivered July 13, 2011. DO NOT PUBLISH.

On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 08-05-04682 CR.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

MEMORANDUM OPINION

DAVID GAULTNEY, Justice.

Brian Keith Balentine appeals from his conviction for robbery (enhanced by three prior felonies). The jury assessed punishment at life in prison. Balentine raises seven issues on appeal.

COMPETENCY TO STAND TRIAL

In issue one, Balentine argues the trial court erred by allowing the trial to proceed without a judicial determination of Balentine's competency to stand trial. Balentine's attorney filed a motion in the trial court that raised the issue of competency and that requested an examination. Based on a psychologist's conclusion that Balentine was not competent to stand trial, the trial court signed an order committing Balentine to a state mental health facility for up to 120 days. The superintendent of Rusk State Hospital subsequently wrote the trial judge a letter explaining that Balentine was then competent to stand trial. The record also contains a report from a psychologist who concluded Balentine was competent. The case proceeded to trial. Article 46B.084 of the Code of Criminal Procedure requires that, after a defendant has been adjudicated incompetent to stand trial and has been criminally committed to a mental hospital, the trial court must make a judicial determination that the defendant has regained competency before the criminal proceedings against him may be resumed. Tex. Code Crim. Proc. Ann. art. 46B.084(a), (d) (West Supp. 2010). The trial judge may, absent a timely objection, make a competency determination based on the report filed by the head of the facility where the defendant was committed and discharged. Id. arts. 46B.079, 46B.084(a) (West Supp. 2010); Bradford v. State, 172 S.W.3d 1, 5 (Tex. App.-Fort Worth 2005, no pet.). When the defendant is found competent to stand trial, the criminal proceedings may be resumed. Tex. Code Crim. Proc. Ann. art. 46B.084(d). The record must reflect that the trial court made a determination of competency. Cooper v. State, 333 S.W.3d 859, 862 (Tex. App.-Fort Worth 2010, pet. ref'd) (citing Schaffer v. State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh'g)). In Schaffer, the Court of Criminal Appeals explained that the transcript "failed to show us any judgment, order, docket sheet entry, or other evidence that the court ever made a determination of competency after the appellant's return from the State hospital." Schaffer, 583 S.W.2d at 631. Similarly in Bradford, the record did not contain any of those items. The Bradford court abated the appeal and remanded the case to the trial court to make a judicial determination regarding competency at the time of the adjudication hearing. Bradford, 172 S.W.3d at 5-6. Here, the judgment expressly states that it "appeared to the Court that Defendant was mentally competent[.]" The trial court's conclusion about Balentine's competency could have been based on the letter from the superintendent of Rusk State Hospital. The trial judge also observed Balentine during trial and described him as alert and "communicating with [his] attorney[.]" Considering the statement in the judgment and the observation reflected in the record, we conclude that the record shows a determination of Balentine's competency by the trial judge. There is no need to abate the appeal for a finding from the trial court. We overrule issue one.

INDICTMENT

In issue two, Balentine argues the trial court erred by allowing the State to amend the indictment after trial began. Article 28.10 of the Code of Criminal Procedure provides as follows:

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006). The indictment initially read as follows:

Brian Keith Balentine . . . did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to Robert Rhodes, by resisting arrest by Robert Rhodes and causing Robert Rhodes hand to be sprained during the resisting.

The State sought to delete the phrase — "and causing Robert Rhodes hand to be sprained during the resisting[.]" Balentine objected to the State's proposed change to the indictment. Finding the phrase to be surplus language, the trial court permitted the deletion. The State contends that the alteration to the indictment was a non-substantive "abandonment," rather than an amendment. An amendment is a substantive change. Chavis v. State, 177 S.W.3d 308, 311 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Balentine argues this language is not surplusage and does not constitute an abandonment, because the language describes the method by which he allegedly caused bodily injury to Rhodes. He contends that permitting the State to amend the indictment during trial was error under article 28.10(b). Under the indictment in this case, a person commits the offense of robbery if the person, in the course of committing theft, and with intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02(a)(1) (West 2003). The phrase the State sought to delete in the indictment was a statement of one of the means of causing bodily injury. "An alteration to the charging instrument that constitutes abandonment, rather than amendment of the instrument, does not invoke the requirements of article 28.10(c)." Chavis, 177 S.W.3d at 311 (citing Eastep, 941 S.W.2d 130, 133 (Tex. Crim. App. 1997)). An indictment must provide notice of the offense to allow a defendant to prepare a defense. Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995). In a single paragraph of an indictment, the State may charge more than one manner of committing an offense. See Badillo v. State, 255 S.W.3d 125, 128 (Tex. App.-San Antonio 2008, no pet.). When more than one manner or means is alleged, the State is required to prove only one. See id. (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)). The indictment for robbery stated Balentine caused bodily injury and alleged two means by which it was caused: by resisting arrest and by causing Rhodes's hand to be sprained. The alteration did not prejudice the "substantial rights of the defendant[.]" Tex. Code Crim. Proc. Ann. art. 28.10(c). The indictment provided notice to Balentine of the allegation that he caused bodily injury to Rhodes when he (Balentine) resisted arrest. Along with the elements of the offense, as alleged in the indictment, the allegation that while in the course of committing theft Balentine caused "bodily injury" to Rhodes by Balentine's "resisting arrest" effectively charged Balentine with the offense of robbery. We overrule issue two.

SUFFICIENCY OF EVIDENCE

In issue three, Balentine contends there was insufficient evidence Rhodes's hand was sprained. Balentine's argument is predicated upon issue two and the change to the indictment being considered an amendment. We have concluded the deletion of the phrase regarding the sprain did not prejudice the substantial rights of the defendant. We overrule issue three. In issue four, Balentine argues the evidence was insufficient to establish the "essential element" of reckless conduct. The indictment alleged that Balentine intentionally, knowingly, or recklessly caused bodily injury "by resisting arrest[.]" Balentine argues that "by resisting arrest" is the only language in the indictment that could be an allegation of reckless conduct. Balentine maintains that the evidence is insufficient to show Rhodes tried to arrest him. Under article 18.16 of the Code of Criminal Procedure, a person is authorized to make a citizen's arrest "to prevent the consequences of theft — the escape of the thief and the disappearance of the property stolen." Miles v. State, 241 S.W.3d 28, 41 (Tex. Crim. App. 2007); Tex. Code Crim. Proc. Ann. art. 18.16 (West 2005). Under the facts here, Rhodes had the authority to make a citizen's arrest. The testimony relating to the arrest is as follows:

Q. [STATE]: From your observation that day, was it obvious from the start that . . . he wasn't going to let you arrest him?

A. [RHODES]: Yes, it was obvious.

Q. . . . You said you're trying to hang on. So, if you could just try to describe a little bit more. What were you trying to do to detain — to arrest the defendant?

A. Basically, I was trying to hold on to him so he couldn't basically put his hands into his pockets or throw his arms to hurt somebody.

. . . .

A. I remember I was actually very fearful of the situation. He was very strong in trying to break away.

. . . .

A. At that point in time, I was afraid for my life.

. . . .

Q. And how did his conduct change when Officer Davis showed up?

A. It was 120 degree turnaround. The resisting and everything else stopped right there. And once the police officer identified himself and everything else, . . . the other handcuff went on. It was done.

As the sole judge of the facts, the jury evaluates the credibility and weight to be given the witness's testimony. Tex. Code Crim. Proc. Ann. arts. 36.13 (West 2007), 38.04 (West 1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). From the officer's description and the videotape of the occurrence (admitted into evidence without objection), the jury could reasonably conclude that Balentine intentionally, knowingly, and recklessly "caused bodily injury by resisting arrest." We overrule issue four.

JURY CHARGE

In issue five, Balentine argues the trial court erred by submitting a jury charge that failed to include all the essential elements of the offense contained in the indictment. He asserts that, because the indictment alleges reckless conduct and specifies the acts of reckless conduct with the "by resisting arrest" language, the charge also had to include that language. Balentine relies on article 21.15 of the Code of Criminal Procedure, which provides as follows:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009). Because the application paragraph in the jury charge did not require the jury to consider whether he had resisted arrest, Balentine argues that the jury was permitted to find he acted recklessly without identifying the manner of such action. He contends there is a fatal variance between the indictment, the proof, and the jury charge. The State argues that the variance between the indictment language ("by resisting arrest") and the jury charge (which did not include this phrase) is immaterial. Relying on Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983), the State contends it was not required to plead a specific reckless act. Crawford held that when all three of the culpable mental states are alleged in the indictment, and no specific reckless act is alleged, the indictment is nonetheless sufficient, because the indictment contained two other mental states — "knowingly" and "intentionally." Crawford, 646 S.W.2d at 937. Article 21.15's requirement of pleading the acts relied upon to constitute recklessness or criminal negligence does not apply to the "intentional" or "knowing" allegations. See id.; Bartlett v. State, 249 S.W.3d 658, 671-73 (Tex. App.-Austin 2008, pet. ref'd). Crawford involved the indictment, not the jury charge. Crawford, 646 S.W.2d at 937. Here, the indictment contains an allegation of reckless conduct, along with the alternate "intentional" and "knowing" culpable mental states. The abstract portion of the jury charge contains definitions of "intentional," "knowing," and "reckless," but the application paragraph of the jury charge does not require the jury to consider the reckless act that is specified in the indictment. Assuming, without deciding, that the omission in the jury charge is error, the error does not require a reversal of the judgment. Balentine did not object to the jury charge. Unobjected-to error in the jury charge will not result in a reversal unless it is so egregious and created such harm that the defendant did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "'[T]he presence of overwhelming evidence of guilt plays a determinative role in resolving the issue,' and is indeed a factor that can be considered when looking at jury charge error." Sanchez v. State, No. PD-0961-07, 2010 WL 3894640, at *9 (Tex. Crim. App. Oct. 6, 2010) (not yet released for publication) (quoting Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989)). "[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. In Sanchez, the Court of Criminal Appeals addressed harmless error in a jury charge with alternative theories. Sanchez, 2010 WL 3894640, at *9. The Court considered Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), "which measure[d] the harm 'at least in part, against the likelihood that the jury's verdict was actually based upon an alternative available theory of culpability not affected by erroneous portions of the charge.'" Id. (quoting Atkinson, 923 S.W.2d at 27). Here, the charge provided other culpable mental states ("intentionally" and "knowingly") and the definitions of each. In a harm analysis, we also consider the arguments of counsel. Almanza, 686 S.W.2d at 171. During closing argument, the prosecutor told the jury that Balentine intended to leave Wal-Mart with the CDs, intended not to pay for the CDs, and intended to commit theft. During opening argument, defense counsel agreed that Balentine was shoplifting, but argued he did not commit robbery. In explaining the bodily injury element of robbery, the State characterized Balentine's culpable mental state as reckless, rather than intentional or knowing. Although argument of counsel is a factor in harm analysis, we also consider the state of the evidence. Id. The jury viewed a videotape of the incident and heard Rhodes's testimony. A person "acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Tex. Pen. Code Ann. § 6.03(b) (West 2011). Rhodes, who works security or "asset protection" for Wal-Mart, testified he saw Balentine select five CDs from the electronics department, walk over to the grocery freezer isle, place the five CDs down the front of his pants, and exit the store through the side doors. Rhodes followed Balentine and identified himself. Rhodes testified Balentine "kind of flung backwards." "[H]e kind of threw his arm backwards so that — I placed my right hand on his right shoulder because I was trying to identify myself as Asset Protection." "And he immediately threw the shoulder and from there, I basically grabbed on and held on . . . [trying to] keep myself and him from getting hurt." Rhodes testified it was obvious that Balentine was not going to let Rhodes arrest him. Rhodes described the struggle as "one of the most violent things I dealt with. . . . I never dealt with somebody that strong before." "He kept attempting to try and break away from me." "And he tried to break to the left. And then we end[ed] up going to the ground." Rhodes explained that he "was afraid for [his] life[,]" and described Balentine's conduct as fighting Rhodes "constantly." Louis Sanchez, Wal-Mart's assistant manager, responded to Rhodes's call for assistance and waited outside the store. Sanchez testified that after Rhodes asked Balentine to stop, Balentine "all of a sudden shoved [Rhodes] and from there it just escalated." Sanchez described Balentine as being "[v]ery angry, very violent, very aggressive." He was "shoving, jumping, pushing his arms, shoulders anything that he could to — bobbing his head all kind of which ways, just anything he could to try to break the hold that we had on him." Given the alternate theories of mental culpability in the jury charge, the videotape of the event, a record establishing Balentine knowingly caused bodily injury, and the overwhelming evidence of guilt, we conclude there is no egregious harm in the omission of "resisting arrest" in the application paragraph of the jury charge. The jury charge, if erroneous, did not impact the outcome at Balentine's jury trial. We overrule issue five.

CONSECUTIVE SENTENCES

In issue six, Balentine argues the trial court abused its discretion by ordering his sentence to run consecutively to the sentence from his 1984 convictions. Article 42.08(a) provides in pertinent part as follows:

(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly. . . .

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2010). Balentine focuses on the "ceased to operate" language. He relies on section 508.150(b) of the Government Code which defines "ceases to operate" for purposes of article 42.08 as the date on which the original sentence is served out in actual calendar time or the date on which a parole panel approves the inmate for parole release. See Tex. Gov't Code Ann. § 508.150(b) (West 2004). Balentine asserts that he was still on parole for the prior offense. Subject to exceptions not applicable here, article 42.08(a) permits the trial court, in its discretion, to run sentences for subsequent convictions either consecutively or concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08(a). Section 508.150(b) does not limit the trial judge's discretion in deciding to stack the sentence with a prior sentence for which a defendant is still on parole. See Ex parte Wrigley, 178 S.W.3d 828, 830-31 (Tex. Crim. App. 2005); Hill v. State, 213 S.W.3d 533, 538 (Tex. App.-Texarkana 2007, no pet.) ("A trial court has the authority to stack a new sentence onto a prior sentence for which the defendant is then on parole."); see also Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.-Amarillo 1993, pet. ref'd). We conclude the trial court was within its discretion to cumulate the sentence in this case with the sentence for which Balentine was on parole. We overrule issue six. In issue seven, Balentine contends the cumulation order was void and unenforceable, because the trial court's oral cumulation order was vague, and the oral pronouncement and the written judgment vary. During the punishment phase of the trial, the trial judge announced that "it would be my wish that this sentence run consecutively to the others." Then the trial judge stated, "[Y]ou're still on parole for the other, is that correct?" At the conclusion of the punishment phase, the trial court ordered the sentence to run consecutively. Balentine argues that the oral pronouncement was too vague, because the trial court did not identify any of the following: (1) the trial court number, (2) the trial court name, (3) the date of conviction, (4) the term of years, or (5) the offense of conviction. Balentine argues there was no information provided to identify what sentence or sentences the trial court was ordering to run consecutively, and he asserts that the trial court could not "fix this later" in a judgment nunc pro tunc. Essentially, Balentine argues that the judgment nunc pro tunc, which states that "this sentence shall run consecutively to the three life sentences in Freestone County Cause No. 84-117-CR; Cause No. 84-114-CR; Cause No. 84-116-CR," cannot be considered in determining whether the trial court's order was sufficiently specific. Relying on Ex parte Madding, he asserts that the oral pronouncement of sentence controls over the written judgment. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). In Madding, the oral pronouncement of sentence was "I will let [the sentences] run concurrent." Id. at 133. The written judgment stated that the sentences would run consecutively. Id. The Court of Criminal Appeals explained that the trial court did not have authority to orally pronounce one sentence and enter a substantively different sentence at a later date outside the defendant's presence. Id. at 136. Here, the trial judge reminded Balentine at the sentencing hearing that he "had pled true to enhancement Paragraphs A, B and C." Those enhancement paragraphs from the indictment identify the three prior convictions by cause number, date, offense, and district court, and the judgments on which the enhancements are based are exhibits in the record. After referencing the prior convictions, the trial judge ordered the consecutive running of the sentences. The nunc pro tunc judgment did not change the trial court's decision to cumulate the sentence. The written judgment specified the prior convictions (judgments admitted into evidence) to which the robbery conviction would run consecutively. See generally Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998); Hill, 213 S.W.3d at 535-37 (The oral pronouncement that the sentences will "run consecutive with whatever charge he is now being held on" and the written judgment with specific information on which convictions would run consecutively amounted to a sufficiently specific cumulation order.). The oral pronouncement does not conflict with the written judgment. We conclude the cumulation order is enforceable. Issue seven is overruled. In his reply brief, Balentine argues his trial counsel was ineffective, because he failed to object to the jury charge, request an instruction, and preserve error. To prevail on an ineffective assistance claim, the appellant must show that (1) counsel's performance was deficient by falling below an objective standard of reasonableness, and (2) there is a probability, sufficient to undermine the confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). We have concluded any error in the jury charge was harmless and would not have affected the outcome of the trial. Balentine's issue claiming ineffective assistance of counsel is overruled. The judgment is affirmed. AFFIRMED.