No. 04-06-00293-CR
Filed: March 28, 2007. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-5044, Honorable Philip Kazen, Jr., Judge Presiding. AFFIRMED
Before CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
CATHERINE STONE, Justice.
Early Boutwell was convicted by a jury of assault on a public servant. In his sole issue on appeal, Boutwell complains that the trial court erred in failing to charge the jury on the lesser included offense of deadly conduct. We affirm.
Background
Boutwell is an inmate who suffers from mental illness and thus is assigned to the administrative segregation unit of the Bexar County jail. As an inmate assigned to this unit, Boutwell is strictly supervised, has no physical contact with other inmates, and is permitted outside of his cell for only one hour of recreation per day. During his recreation period, Boutwell is allowed to use a day room, which affords him access to hot water via a "hot water urn." On September 24, 2004, after Boutwell was released from his cell for his recreation period, he became involved in a dispute with Bexar County Sheriff Deputy Stephen Ramos. At some point during the argument, Boutwell grabbed a container full of hot water from the hot water urn and threw it on Deputy Ramos, causing Ramos permanent injury to his arm. Boutwell was subsequently charged with aggravated assault on a public servant. A jury, however, found Boutwell guilty of only the lesser included offense of assault on a public servant. The trial court sentenced Boutwell to a term of life imprisonment for his offense. Jury Charge on Lesser Included Offense
Boutwell contends the trial court erred by failing to instruct the jury on the lesser included offense of deadly conduct. The trial court's charge instructed the jury on aggravated assault on a public servant and on the lesser included offense of assault on a public servant, but did not include Boutwell's requested instruction on deadly conduct. To determine whether Boutwell was entitled to a charge on a lesser included offense, we apply a two-prong test. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Id. The State essentially concedes the first prong of the test for purposes of this appeal, i.e., that deadly conduct may be a lesser included offense of aggravated assault on a public servant. See Ford v. State, 38 S.W.3d 836, 845 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (concluding deadly conduct can be a lesser included offense of aggravated assault). The issue on appeal, therefore, is whether some evidence exists that would permit a jury to rationally find that if Boutwell is guilty, he is guilty only of the lesser offense of deadly conduct. When addressing the second prong of the test, we focus on whether any evidence exists in the record that would permit a rational jury to find Boutwell guilty only of deadly conduct. See Feldman, 71 S.W.3d at 750; Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). An accused is guilty of only a lesser included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996); Bradford v. State, 178 S.W.3d 875, 878 (Tex.App.-Fort Worth 2005, pet. ref'd). "It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense." Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). There must be some evidence directly germane to the lesser included offense for the jury to consider before an instruction on the lesser included offense is warranted. Id. In making our determination, we evaluate the evidence in the context of the entire record. Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005). However, the credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether the lesser included offense should be submitted. Id. Regardless of its strength or weakness, if more than a scintilla of evidence raises the issue that the defendant is guilty only of the lesser offense, the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). In the instant case, the only witnesses to testify at trial were those called by the State. The record shows that during the State's case-in-chief, the State called Richard Rutenberg to testify. Rutenberg testified he was a corporal with the Bexar County Sheriff's Department and was responsible for supervising Boutwell's unit on the day of the incident. Rutenberg testified that before Deputy Ramos released Boutwell from his cell for his recreation period, Ramos informed Boutwell that he was prohibited from providing hot water to other inmates upon his release. When Boutwell exited his cell, he appeared irritated and upset with the rule in question. According to Rutenberg, Boutwell began asking his fellow inmates if they wanted hot water. Deputy Ramos warned Boutwell that he would cancel the rest of Boutwell's recreation period if he continued with his conduct. Boutwell allegedly became "irate with [Deputy Ramos] and kept saying, This is my day room time. I'm going to do what I want." At this point, Deputy Ramos was preparing to terminate Boutwell's recreation period when Boutwell went to the hot water urn and began filling a cup with water. Boutwell told Deputy Ramos that he was "just going to get some hot water." However, when Boutwell finished filling his cup with water, he turned toward Ramos and "splashed" the water on the deputy. Boutwell then proceeded toward Deputy Ramos in an aggressive manner and a struggle ensued. Several deputies immediately responded to the situation and subdued Boutwell. Deputy Ramos likewise testified that on the day of the incident, he instructed Boutwell that he was prohibited from passing water to other inmates during his recreation period. Ramos testified that when Boutwell was released from his cell for his recreation period, Boutwell proceeded to the day room and began to yell. Ramos stated that Boutwell had his fist clenched and was yelling obscenities. Ramos told Boutwell that if he did not like the rules, he could forfeit his remaining recreation period and return to his cell. Boutwell responded by asking his fellow inmates if "anyone wants hot water, throw it out." At that point, an unknown inmate threw an empty soda bottle to Boutwell, who picked up the bottle and went to the hot water urn. Ramos then told Boutwell that "it's not worth it" and that he would return Boutwell to his cell if Boutwell continued his conduct. Boutwell responded by telling Ramos that he was just going to "refill the water." Boutwell, as he began to fill a pitcher full of water, then told Ramos that he "he would get [Ramos] when [Ramos] least expected it." After Boutwell filled the pitcher with water, he approached Ramos and threw the water on the deputy. A struggle ensued between Ramos and Boutwell, which required other deputies to intervene and restrain Boutwell. Deputy Joe Mascorro also testified on behalf of the State. He testified that he was one of the deputies who responded to the officer in distress call relating to Deputy Ramos. Upon responding, Deputy Mascorro observed water on the floor and Boutwell "wrapped around [Deputy Ramos's] legs." Deputy Mascorro stated that once Boutwell was subdued, he observed that Deputy Ramos was injured and had "large bubbles of puss, skin falling and peeling off"of his arm. He further stated that although there are cameras located in the area where the incident occurred, none were in a position to record the incident between the deputies and Boutwell. Finally, Deputy Juan Reyes and Dr. John Sparks testified on behalf of the State. Deputy Reyes testified that by the time he responded to the incident between Boutwell and Deputy Ramos, the situation was under control. He also stated that Boutwell did not appear injured during the incident, while he observed redness on the left arm of Deputy Ramos. Dr. John Sparks provided testimony that a container full of hot water can cause serious bodily injury if thrown onto an individual's face or skin. Boutwell essentially contends the evidence indicates he is guilty of only the lesser offense of deadly conduct because the State's witnesses lacked credibility concerning their recollections of the incident. Boutwell states that because the credibility of the State's witnesses was "seriously undermined" during trial, "the jury could have rationally found that . . . [Boutwell] did recklessly engage in the conduct of threatening to throw hot water at Deputy Ramos and placing him in imminent danger of serious bodily injury." Although the evidence to which Boutwell directs our attention might have a tendency to weaken the deputies' testimony concerning the commission of the assault, it does not affirmatively negate or rebut that evidence or prove the evidence is subject to different interpretations. The court of criminal appeals has expressly stated that "it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted." Bignall, 887 S.W.2d at 24. Because the record is devoid of any evidence suggesting Boutwell merely committed the offense of deadly conduct without committing assault on a public servant, we conclude the record evidence fails to raise the possibility that if Boutwell is guilty, he is guilty only of deadly conduct. Conclusion
We hold the trial court did not err in denying Boutwell's request for a lesser included offense charge on deadly conduct and affirm the court's judgment.