No. 05-01-01749-CR.
Opinion Issued May 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th District Court, Collin County, Texas, Trial Court Cause No. 199-80195-01. AFFIRMED.
Before Justices JAMES, FITZGERALD, and LANG.
Opinion By Justice LANG.
Nemorio Carbajal-Morales appeals his conviction, after a jury trial, of burglary of a habitation. The jury assessed punishment at ten years confinement, probated for ten years, and a $5000 fine. In two points of error, appellant argues (1) the jury charge contained error, and (2) the trial court erred in denying a hearing on his motion for new trial. For reasons that follow, we overrule appellant's two points of error and affirm the trial court's judgment.
This Court now resolves issues, but because appellant's brief refers to points of error, we use the term "point of error." See Tex.R.App.P. 38.1(e).
Factual and Procedural Background
Appellant was married to Patricia Carbajal for about ten years. In March 1999, the couple separated and divorced. Ms. Carbajal continued to live in the couple's home with their three children. Appellant was not allowed a key to the house nor any access to the home after the divorce, as he had physically assaulted Ms. Carbajal on at least two occasions. In the early morning hours of Sunday, December 9, 2000, appellant broke into Ms. Carbajal's home, where she was sleeping in the same room with the three young children. Appellant grabbed her by the hand and led her to the living room, claiming he wanted to talk to her about getting back together. When Ms. Carbajal threatened to call police, appellant pulled a gun from his jacket and said that "he did not know what was going to happen there" if she did. The gun, a .380 caliber pistol, was loaded with a shell in the chamber but had the safety on. Ms. Carbajal recognized the gun as one that belonged to appellant while they were married. One of the children, an eleven-year-old boy, called Ms. Carbajal's father and told him what was happening. Ms. Carbajal's brother then phoned police. Appellant saw a police car drive up to the house and tucked his gun behind the back of a living room sofa. Police questioned both appellant and Ms. Carbajal at the scene but let appellant go because Ms. Carbajal, who speaks little English, did not immediately tell officers about the gun. After appellant left, Ms. Carbajal's brother was asked to act as interpreter so that police could obtain a statement from Ms. Carbajal. Her statement revealed that appellant had displayed a gun. After Ms. Carbajal consented to a search of the house, officers found the weapon. Appellant was arrested four days later. He was indicted for burglary of habitation, with the underlying felony an aggravated assault. Improper Jury Charge
In his first point of error, appellant argues the jury charge incorrectly stated the law applicable to his case because it allowed the jury to convict him based on an aggravated assault definition that included the phrase "uses or exhibits a deadly weapon" rather than simply "uses a deadly weapon." A.
Standard of Review In reviewing a claim of charge error, we must first determine whether the jury charge contains error. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); see also Tex.R.App.P. 44.2. If the charge does contain error, we must then determine whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641. Where there has been a timely objection made at trial, an appellate court will search for only "some harm." Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). B.
Applicable Law A person commits the offense of burglary if, without the effective consent of the owner, he "enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault . . . or enters a building or habitation and commits or attempts to commit a felony, theft, or an assault." Tex. Pen. Code Ann. § 30.02 (Vernon 2003). A person commits assault if he "intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse." Id. § 22.01. Finally, one commits aggravated assault if he "commits assault as defined in [Penal Code] Section 22.01 and the person . . . uses or exhibits a deadly weapon during the commission of the assault." Id. § 22.02. C.
Application of Law to the Facts The charge read to the jury contained the following language pertaining to the offense of burglary of a habitation: "Our law provides that a person commits an offense if, without the effective consent of the owner he enters a habitation with intent to commit a felony or attempted to commit a felony or did commit a felony." After several definitions, the charge then addressed the underlying felony in this case, aggravated assault: A person commits the offense of assault if he intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse. A person commits aggravated assault if the person commits an assault, as defined above, and the person uses or exhibits a deadly weapon during the commission of the assault. We conclude the jury charge contains no error. The charge appropriately and correctly tracked the applicable penal code provisions, which clearly state that a person commits aggravated assault if he commits assault and "uses or exhibits" a deadly weapon during the offense. See id. § 22.02(a)(2) (emphasis added). Appellant's request that the charge contain only the term "uses" instead of "uses or exhibits" would have incorrectly charged the jury with the applicable law in this case. Having found no error, we need not examine whether appellant was harmed. We overrule appellant's first point of error. Trial Court's Denial of Hearing On Motion For New Trial
In his second point of error, appellant argues the trial court erred by denying him a hearing on his motion for new trial. Appellant urged in his motion that the trial court had incorrectly charged the jury by employing the "uses or exhibits" definition of assault instead of simply "uses." Also, attached to the motion was an affidavit from a juror, James Ducatelli, which stated that although Ducatelli believed appellant had "exhibited" a firearm, he did not think that appellant had "threatened" Ms. Carbajal with the firearm or "by any means." A.
Applicable Law A defendant is not entitled to a hearing on a motion for new trial as an "absolute right." Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). A trial court is required to conduct a hearing on a motion for new trial only if the defendant raises a matter "not determinable from the record." Id. at 816; Mendoza v. State, 935 S.W.2d 501, 503 (Tex.App.-Waco 1996, no pet.). A hearing on a motion for new trial is to ensure "a meaningful appeal by creating a record that can be reviewed." Mendoza, 935 S.W.2d at 503. A defendant invokes the right to a hearing by submitting an affidavit showing "reasonable grounds" for a new trial. Id. B.
Application of Law to the Facts There appears to be some disagreement between the parties as to whether appellant's motion for new trial, filed on November 29, 2001, was timely. In its response to appellant's second point of error, the State argues that the trial court did not err in denying the hearing because appellant's motion was untimely. Rule 21.4 requires a defendant to file a motion for new trial "before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court." Tex.R.App.P. 21.4(a). However, the record does not clearly indicate whether judgment was entered on October 24, when the trial ended, or whether it was entered on November 1 when the court entered its order of community supervision. The reporter's record does not reflect that the trial court ever entered sentence after the jury's recommendation was read on October 24; instead, the court simply "accepted" the jury's verdict and discharged their service. Moreover, the clerk's record contains conflicting evidence as to which date sentence was imposed. Nevertheless, we need not resolve the issue because appellant was not entitled to a hearing even if his motion was timely. Appellant's motion presented no reasonable grounds for new trial. Instead, he argued the jury charge was incorrect because it employed the phrase "uses or exhibits," the same argument he now asserts in his first point of error on appeal. Because it is clear the trial court did not err in giving the charge with the "use or exhibit" language, as discussed above, appellant did not present reasonable grounds for granting a new trial. Therefore, the trial court did not err in denying the hearing on appellant's motion for new trial. Furthermore, we note that the juror's affidavit attached to appellant's motion is incompetent evidence in light of this Court's decision in Ford v. State, No. 05- 02-00065-CR, slip op. at 6, 2003 WL 176355, at *6 (Tex.App.-Dallas Jan. 28, 2003, no pet. h.). Appellant's second point of error is overruled. Conclusion
Having overruled appellant's two points of error, we affirm the judgment of the trial court.