Opinion
No. 05-17-00415-CR
05-31-2018
CLAYTON ELLIOTT BRIGGS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-80634-2015
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Brown
A jury convicted appellant Clayton Elliott Briggs of aggravated assault with a deadly weapon, set punishment at three and a half years' confinement, and recommended probation. The trial court assessed punishment at three and a half years' confinement probated for two years. In three issues, appellant contends: (1) the jury charge definition of deadly weapon was over-broad and not supported by the evidence; (2) the State's closing argument impermissibly lowered its burden of proof; and (3) his constitutional right to confrontation was violated by use of video evidence of the arresting officer when the officer did not testify at trial. For the following reasons, we affirm the trial court's judgment.
BACKGROUND
James Lockridge was mowing a field he leased in McKinney, Texas, when he noticed fencing debris near a damaged backyard fence of an adjacent residence. The debris appeared to have been thrown into the field, and Lockridge picked it up and threw it into the residence's backyard. He reported the debris to the City of McKinney's code compliance department later that day. A few evenings later, Lockridge returned to the field to bale hay and noticed the debris was back in the field. He was collecting and throwing the debris into the backyard again when appellant emerged from the residence and told Lockridge to not touch his property. A confrontation ensued.
Lockridge testified that appellant was "getting aggressive" and Lockridge said he would call the police if appellant threw the debris into the field again. Appellant went back into his house, and Lockridge continued to collect the debris. Very shortly thereafter, Lockridge heard "click, click" and stood up to find appellant had returned and was pointing a gun right in Lockridge's face. Appellant said, "I hope your last day on earth was good because this is your worst." Scared, Lockridge ran, hid behind a hay bale, and called 9-1-1. Eventually, appellant walked back to his house, and police arrived. Lockridge was confident that appellant raised a firearm to Lockridge's head. Lockridge did not see appellant with a hammer that night.
Appellant testified that he had recently begun to repair the fence, which a storm had damaged several months earlier. He had not observed anyone working in the field that time of year, so he had no reason to believe there would be any harm if some of the materials he was using were on the other side of the fence. That night, appellant heard a loud banging and went outside to find Lockridge throwing things over his fence. Lockridge yelled and cussed at appellant, and appellant tried to defuse the situation. Lockridge said he was going to call the police for illegal dumping and trespassing. Appellant went inside to put shoes on and then returned to gather his materials, picking up pickets and tools from his side of his fence. Lockridge was throwing rocks over the fence near appellant's head, and appellant said, "be careful of what you're doing." Lockridge then headed off down the field saying he was calling the police. Appellant was holding a hammer, but never lifted the hammer, pointed it at Lockridge, or threatened Lockridge. According to appellant, Lockridge lied about appellant pointing a gun.
McKinney Police Officer Robert Ensor responded to the call and was present when the arresting officer asked appellant if he had any handguns on his person. Appellant responded, "No. And I didn't then." Based on appellant's response, it was Ensor's opinion that appellant knew why the officers were there and was trying to "divert as to the truth of the matter." Appellant told Ensor about the confrontation and denied making any threats or having a weapon during the incident. He had picked up a hammer in his backyard and thought Lockridge might have misidentified it as a weapon or handgun. When Ensor asked if appellant had any guns, appellant stated that he had an unloaded and locked GLOCK 19 in a range bag. Appellant related that he kept the gun unloaded because his children were in the house. Appellant also told Ensor that he had a Mossberg 12-guage shotgun, a Ruger 10/22, and a .38 Special. At trial, appellant also testified to owning a GLOCK 26, but he did not tell Ensor about that firearm when Ensor questioned him.
McKinney Police Officer Eric Fromhold, who also assisted at the scene, testified that Lockridge was very excitable and nervous. Based on Fromhold's experience, Lockridge exhibited the signs of someone who had been a victim of an aggravated assault. Appellant told Fromhold there was a gun on the nightstand in appellant's master bedroom. Fromhold took custody of the firearm, which was a loaded and unlocked GLOCK 19.
CHARGE ERROR
In his first issue, appellant contends the jury charge's definition of deadly weapon was overbroad and not supported by the evidence. Specifically, appellant complains the trial court erred by including the full statutory definition of a deadly weapon when the indictment specified a firearm and the evidence only supported a firearm finding. Appellant contends the broader definition, "at least in theory" could have allowed the jury to convict him for brandishing a hammer.
We follow a two-step process in reviewing jury charge error; we first determine if the jury charge was erroneous and, if so, determine whether the error caused sufficient harm to warrant reversal. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). To obtain a reversal if, as in this case, an appellant objects to the charge at trial, the record must show the error was calculated to injure the appellant's rights, meaning the error resulted in some harm to the appellant. See TEX. CODE CRIM. PROC. art. 36.19 (West 2006); Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Ngo, 175 S.W.3d at 743-44. We must find that the appellant "suffered some actual, rather than merely theoretical, harm from the error." Reeves, 420 S.W.3d at 816. In analyzing harm, we consider the entire charge, the state of the evidence, including contested issues and the weight of the probative evidence, arguments of counsel, and any other relevant information revealed by the trial record as a whole. Id.; Vasquez v. State, 389 S.W.3d 361, 368-69 (Tex. Crim. App. 2012).
A jury charge must instruct the jurors on all of the law applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Vasquez, 389 S.W.3d at 366. The charge must include statutory definitions that affect the meaning of the crime's elements, but the trial court also must tailor the charge to the facts presented at trial. Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017) (concluding trial court erred in submitting portions of the statutory definition of "intoxicated" that were not supported by the evidence).
The penal code includes two alternative definitions of a deadly weapon: (1) "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" (a deadly weapon by design); or (2) "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury" (a deadly weapon by use). See TEX. PEN. CODE ANN. § 1.07(a)(17)(A), (B) (West 2011); Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008). Here, the abstract portion of the trial court's jury charge, tracking the statutory definition of a deadly weapon by design, defined a deadly weapon as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." See TEX. PEN. CODE ANN. § 1.07(a)(17)(A). The charge's application paragraph more specifically narrowed the definition of the deadly weapon to "a firearm":
Now, if you find from the evidence beyond a reasonable doubt that on or about the 3rd day of November, 2014, in Collin County, Texas, the defendant, CLAYTON ELLIOTT BRIGGS, did then and there intentionally or knowingly threaten James Lockridge with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault, then you will find the defendant guilty of the offense of Aggravated Assault With a Deadly Weapon as charged in the indictment.To the extent the trial court erred in not more narrowly tailoring the abstract paragraph's deadly weapon definition too, we conclude the error did not result in some harm to appellant because the application paragraph included the correct definition and the State did not present or argue the case otherwise.
The abstract, or definitional, portion of a jury charge "helps the jury understand the meaning of concepts and terms used in the charge's application portions." Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.—Dallas 1998, pet. ref'd); Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). The charge's application paragraph, and not the abstract portion, authorizes a conviction. Vasquez, 389 S.W.3d at 366-67; Crenshaw, 378 S.W.3d at 466. If the application paragraph correctly instructs the jury, an erroneous abstract definition is not egregious. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Toler v. State, 546 S.W.2d 290, 293-94 (Tex. Crim. App. 1977); Glockzin v. State, 220 S.W.3d 140, 150 (Tex. App.—Waco 2007, pet. ref'd) ("[A]bstract statements of law that go beyond the allegations in the indictment will not present reversible error when the court's application of the law to the facts effectively restricts the jury's deliberation to the allegation in the indictment.") (internal quotation and citation omitted)).
Reviewing the charge as a whole, the trial court properly tailored the deadly weapon definition to a firearm, as supported by the evidence, in the application paragraph. Thus, the jury charge did not authorize conviction for an offense for which appellant was not indicted. See Crenshaw, 378 S.W.2d at 466. Further, a hammer can be a deadly weapon by use only, and is not a deadly weapon by design. See TEX. PEN. CODE ANN. § 1.07(17)(b); see, e.g., Bethel v. State, 842 S.W.2d 804, 806-07 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Accordingly, the jury could not have convicted appellant of aggravated assault with a hammer under the deadly weapon definition provided in either the abstract paragraph or application paragraph of the jury charge.
To prove its case, the State only presented evidence to support a jury finding that appellant assaulted Lockridge with a firearm. And, in closing argument, the State never argued the possibility that appellant could be convicted if he had brandished a hammer. Instead, the State argued that Lockridge's version of events, describing appellant pointing a firearm at Lockridge's face, was the only credible version of events. Indeed, appellant's counsel argued the jury necessarily would have reasonable doubt on the aggravated assault with a deadly weapon offense if it concluded that Lockridge had mistaken a hammer for a firearm: "If you just think it's possible in general that [appellant] was just holding a hammer, that's reasonable doubt."
Appellant argues the alleged charge error "at least in theory" could have allowed the jury to convict him for brandishing a hammer. However, an appellant must have suffered actual, and not theoretical, harm for reversal due to charge error. Reeves, 420 S.W.3d at 816. Based on the entire record, the jury charge as a whole, and the arguments of counsel, we conclude that any error in the deadly weapon definition set out in the abstract portion of the jury charge did not result in some harm to appellant. We overrule appellant's first issue.
JURY ARGUMENT
In his second issue, appellant contends the State's closing argument impermissibly altered its burden of proof. Specifically, appellant asserts the State's argument improperly focused on "comparing testimony" and urged the jury to "Believe us and convict; or believe Defendant and acquit."
Proper jury arguments fall within four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel's argument; and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). We review a trial court's ruling on an objection to jury argument under an abuse of discretion standard. See York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref'd). When examining challenges to jury argument, we consider the argument as a whole and in context to determine whether it was improper. See Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007).
Appellant complains of the following portions of the State's closing argument:
What I want to point out right now is that on cross-examination, the guy says he has five guns. He's got two handguns. He's got three rifles. The three rifles are in a safe. Those two handguns - he knows when this officer is asking him questions - he's trying to make up this story on the fly, right? He knows he's got two handguns. He knows one is locked. One's unloaded. One is in a range bag. And that's the gun that he did not point at the victim's head that night.
So when officers asked, you know, where's this gun, of course, naturally, he wants to direct their attention to the one place in the house where the one handgun he has that's locked is actually located. He doesn't want to tell them the
truth. Oh, yeah - hey, well, the gun I pointed at the victim's head, it's loaded. Yea, it's not locked. Yeah, it's sitting on my nightstand right next to my bed. And this is another attempt that he made to try to get officers to believe that this is just one incredible set of coincidences, one incredible set of circumstances.Defense counsel objected to the first two argument excerpts, asserting the State was trying to shift the burden to the defense, but did not object to the third excerpt.
And I want to point out that that's kind of the theme and theory of this table's case and it's been that way from beginning to middle to end.
* * *
And one of the last things I want to cover is the Second Amendment. I understand that everybody has a constitutional right to own a firearm, carry a firearm. And that's the way it should be. Period. But being able to carry and own a firearm is not only a right, it's a privilege. You shouldn't be allowed to have that firearm if whenever you get mad in an argument, whenever you haven't been physically touched or harmed but somebody's hurt your feelings or is not listening to what you tell them to do, you go inside and grab a gun and you point it to their head just to teach them a lesson. Not - just to scare them. No big deal. Can't do it.
We also can't wait until he actually pulls the trigger and puts a bullet in somebody's skull before he's prosecuted and held accountable for his actions. Can't do that.
* * *
Victim's story, consistent. Super detailed. In fact, that's why Officer Ozias arrested the Defendant. She came back to the house and was like, "Look, man. All right. He's given us - James has given us a pretty detailed story of what's going on here. He's given us details. He's very descriptive. Makes a lot of sense. And what you're telling us makes no sense."
And I want you to evaluate all of the facts in that fashion. Compare one story versus the other. And know that, again, conflicts in testimony does not equal reasonable doubt. Bottom line, who's telling the truth and who's lying. And all we have to prove are the elements of the offense. We have to prove nothing else. Other than that, when you sit down and you look at these two stories, it is clear as day who's lying and who's telling the truth....
By not objecting at trial to the allegedly improper jury argument in the third excerpt, appellant has not preserved error with respect to that excerpt for our review. See TEX. R. APP. P. 33.1(a); Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010).
Because appellant took the stand and testified, the State was free to attack his testimony as long as the State's argument was based upon the facts and inferences raised by the evidence. See Bradley v. State, 359 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (conflict between complainant's testimony and appellant's testimony was enough to sustain inference that appellant had lied); Gonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Reading the jury argument as a whole and the complained-of excerpts in context, we conclude the State simply provided a summation of the evidence, including drawing attention to the differences between Lockridge's and appellant's testimony and the inconsistencies in appellant's statements regarding the guns he owned. The State also argued appropriately reasonable deductions from the evidence that appellant initially attempted to divert the police officers' attention from the loaded gun on his bedside table and, generally, that his version of events was not truthful. See, e.g., Bradley v. State, 359 S.W.3d at 919. The State's argument also included an appropriate plea for law enforcement in cases, such as this aggravated assault, in order to prevent other offenses resulting in serious injury or death.
The State's jury argument did not suggest, as appellant argues, that he "was required to prove something that he was not." Indeed, the State advised the jury that it had the burden of proving the elements of the offense. Accordingly, we conclude the trial court did not abuse its discretion in overruling appellant's objections to the State's jury argument.
CONFRONTATION CLAUSE
In his third issue, appellant contends his constitutional right to confrontation was violated when the State used an in-car video recording of the arresting officer, who was not present at trial to be cross-examined. The Sixth and Fourteenth Amendments of the United States Constitution guarantee a criminal defendant a right "to be confronted with the witnesses against him." U.S. CONST. amend. VI; Lee v. State, 143 S.W.3d 565, 569 (Tex. App.—Dallas 2004, pet. ref'd). However, a defendant claiming a violation of his right to confrontation must preserve error for appellate review. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). To preserve error, the defendant must make his complaint to the trial court by a timely request, objection, or motion that states the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a). A defendant's failure to object on Confrontation Clause grounds at trial waives that complaint for appellate review. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (defendant failed to preserve Confrontation Clause complaint for appellate review when trial objection was solely on hearsay grounds).
Here, the State offered an in-car video recording of McKinney Police Officer Ozias into evidence at the outset of trial. Then, during trial, the State played portions of the video during Officer Ensor's testimony and questioned him about events shown in the video. Ozias, who had moved out-of-state, did not testify at trial, but appellant never objected at trial that admitting the video into evidence and playing it for the jury constituted a violation of his right to confrontation. Therefore, we conclude appellant has failed to preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a); Davis, 313 S.W.3d at 347. Accordingly, we overrule appellant's third issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170415F.U05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-80634-2015.
Opinion delivered by Justice Brown; Justices Bridges and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 31st day of May, 2018.