Opinion
No. 05-15-01234-CR
03-08-2017
BRIAN CLONINGER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1359896-V
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Stoddart
Appellant Brian Cloninger waived his right to a jury trial and pleaded no contest to a charge of injury to a child causing serious bodily injury. After hearing evidence, the trial court convicted him and assessed punishment at forty-five years in prison. Cloninger raises three issues on appeal, arguing insufficiency of the evidence, that he proved the affirmative defense of involuntary intoxication, and there was no evidence to support an adverse finding on that defense. We affirm.
BACKGROUND
Eight-year-old D.J. testified late one afternoon, he noticed a truck he had never seen before in the parking lot of his apartment building. Cloninger was standing at the rear of the truck. As D.J. approached and stopped to tie his shoe, Cloninger told him to "Keep on walking." D.J. was scared because he did not know the man. D.J. continued walking, but turned around when he heard a noise. D.J. saw Cloninger pull a gun out of the truck. Cloninger walked a few steps toward D.J. and shot him in the face. D.J. saw blood on his shirt, and his mouth felt hot and stinging. As D.J. began running home, covering his face with his hands, he saw Cloninger get back in the truck. D.J. was taken to the hospital where he underwent reconstructive surgery.
D.J. suffered permanent bone loss, teeth loss, scaring, and nerve damage as a result of the shooting. A bone and skin graft from his leg was required to reconstruct his jaw. Following the surgery, D.J. spent two weeks in intensive care. He has no feeling in his lip and will always drool when he eats. One of D.J.'s doctors testified D.J. suffered permanent injury and permanent disfigurement as a result of the shooting. If D.J. had not received immediate medical treatment, his airway would have swollen, rendering him unable to breathe. Future surgeries will be required to align his jaw and insert custom dental implants to replace his missing teeth.
After the shooting, a neighbor at the apartment confronted Cloninger, asking why he shot the boy. Cloninger responded, "Because I wanted to." Earlier that afternoon, witnesses saw Cloninger in the parking lot standing beside the truck. They described him as "drunk," mumbling and rocking back and forth. After the shooting, Cloninger got into his truck as if about to leave, but then kicked the door open, got out, and started shouting at the crowd that had gathered.
Police responded to a report that an eight-year-old boy had been shot. An officer arrived within minutes of the shooting and saw Cloninger standing next to his truck. The officer asked Cloninger "where [D.J.] was." Cloninger responded, "The kid said he was going to kill me." The officer testified Cloninger was stumbling and smelled of alcohol. Cloninger appeared intoxicated.
At the time of the offense, Cloninger had been treated for an alcohol problem and was taking prescription medication for ADHD. Cloninger's doctor instructed him not to drink alcohol while taking the medication. Cloninger testified he may have taken an extra dose of medication the morning of the shooting. He also testified he had been drinking before the shooting.
A transsexual escort going by the name "Roxie" testified Cloninger contacted her the day of the shooting and arranged to come by her apartment, which was in the same complex where D.J. lived. Cloninger told her on the phone that he had been drinking and wanted a massage. According to Roxie, Cloninger was nervous when he arrived, but did not seem extremely intoxicated. Cloninger brought beer and wine and immediately began drinking. After a while, he began stumbling and fell onto the couch. Roxie testified Cloninger was intoxicated at this point, his speech was slurred, he was stumbling, and his perception was "off." She said Cloninger had about four beers at her apartment. Roxie told Cloninger he was too drunk to do anything and tried to get him to leave. She started video recording Cloninger so it would not be "my word against his." Eventually she helped him out of the apartment and into the parking lot. Roxie denied giving Cloninger any type of drug or putting anything in his drinks.
Cloninger testified he had five beers at home before going to Roxie's apartment. He bought beer and wine on the way, and began drinking a beer as soon as he was inside her apartment. He felt like he "drank a whole pot of coffee" that day and drinking beer would help him get to a "base level." He finished the beer, took off his shirt and shoes and lay down on the couch. He felt hands rubbing his shoulders, then it was "like somebody turned the lights out."
Cloninger did not recall anything after he lay down on the couch in Roxie's apartment. He explained that he vaguely remembered later being reclined in the driver's seat of his truck and someone sneaking up on him, but he blacked out. His next memory was standing in front of a police car with two officers, but he blacked out again. Ultimately, he woke up alone in a room crying and asking, "What are you holding me for? What are you charging me with?"
Cloninger's explanation for the shooting was that he must have been startled inside his truck and felt threatened. He must have reached for his weapon and fired through the passenger window. The window was shattered and glass and blood were found on the ground. Cloninger believed that Roxie drugged him with Rohypnol, GHB, or some other substance.
A medical expert for Cloninger testified that Cloninger's behavior, as shown on the video recording taken by Roxie, was not caused by alcohol alone, but was more consistent with drugs like Rohypnol, Gama Hydroxybuterate (GHB), or Ambien. The expert explained that a person blacking out for five or six hours is more consistent with ingesting one of those substances than with alcohol. The ADHD medication Cloninger was taking would make a person more resistant to the sedating effects of alcohol and a double-dose of the medication could have significant effects on a person's behavior.
STANDARD OF REVIEW
The entry of a valid guilty plea has the effect of admitting all material facts alleged in the formal criminal charging instrument. Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986); McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.). With one exception not applicable here, a plea of nolo contendere or "no contest" has the same legal effect as a guilty plea. TEX. CODE CRIM. PROC. ANN. art. 27.02(5).
Nevertheless, article 1.15 of the Texas Code of Criminal Procedure permits the court to render a conviction only after the admission of sufficient evidence establishing a defendant's guilt, even if he has entered a plea of guilty or no contest. TEX. CODE CRIM. PROC. ANN. art. 1.15; Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). When a defendant waives his right to a jury trial and enters a plea of guilty or no contest, the State is not required to prove the defendant's guilt beyond a reasonable doubt. McGill, 200 S.W.3d at 330 (citing Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988)). Rather, article 1.15 requires only substantiation of the plea. Menefee, 287 S.W.3d at 14. We are, therefore, required to determine whether the evidence embraces each essential element of the offense charged. Id. at 13; McGill, 200 S.W.3d at 330. We affirm the trial court's judgment if the State met its burden under article 1.15. Wright v. State, 930 S.W.2d 131, 132 (Tex. App.—Dallas 1996, no pet.).
Cloninger argues in his first issue that the evidence is insufficient to support his conviction under the sufficiency standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979). That standard, however, does not apply when a defendant pleads guilty or no contest. Menefee, 287 S.W.3d at 13; O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.—Dallas 2005, no pet.).
DISCUSSION
A. Sufficiency under Article 1.15
Cloninger argues in his first issue that the evidence is insufficient to prove his conduct was voluntary or that he intentionally or knowingly caused serious bodily injury to a child. He contends Roxie drugged him and he remembers nothing about the incident.
As applicable here, a person commits an offense if the person intentionally or knowingly causes serious bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(1). A child is a person fourteen years of age or younger. Id. § 22.04(c)(1). Serious bodily injury is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46).
The penal code provides that a person commits an offense only if his conduct includes a voluntary act or omission. TEX. PENAL CODE ANN. § 6.01(a). Voluntary conduct focuses on conduct that is within the control of the actor. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). It applies solely to the actor's physical body movements. See Farmer v. State, 411 S.W.3d 901, 905-06 (Tex. Crim. App. 2013). "The 'voluntary act' requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but only that criminal responsibility for the harm must 'include an act' that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer)." Rogers, 105 S.W.3d at 638. All that is necessary to satisfy the requirement of section 6.01(a) is that the actor's conduct include a voluntary act. Farmer, 411 S.W.3d at 907.
Intent may be inferred from any facts tending to show its existence, such as actions, words, and conduct of the accused, the method of committing the crime, and the nature of the wounds inflicted on the complainant. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). Knowledge may also be inferred from such evidence. See id.; Charlton v. State, 334 S.W.3d 5, 12 (Tex. App.—Dallas 2008, no pet.); Stahle v. State, 970 S.W.2d 682, 687 (Tex. App.—Dallas 1998, pet. ref'd). Use of a deadly weapon raises an inference of intent. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (specific intent to kill may be inferred from use of deadly weapon). A firearm is a deadly weapon. See TEX. PENAL CODE ANN. § 1.07(a)(17).
As described above, the evidence indicates D.J. was eight years old at the time of the shooting and suffered permanent disfigurement and protracted loss and impairment in his jaw, teeth, and lips as a result of the shooting. D.J. testified Cloninger spoke to him when D.J. was tying his shoe, then pulled a gun as D.J. continued walking. When D.J. turned around, Cloninger shot him in the face. In his version of the facts, Cloninger admitted waking up, reaching for his gun, and shooting D.J. through the window of the truck. When the police officer asked Cloninger where the boy was, Cloninger responded, "The kid said he was going to kill me." Cloninger also told a witness he shot D.J., "Because I wanted to."
The evidence indicates Cloninger's conduct included voluntarily physical acts. See Farmer, 411 S.W.3d at 906 ("[A] voluntary act that comprised a portion of the commission of the offense is sufficient to satisfy the requirement of [penal code] Section 6.01(a), even if that voluntary act was accidental or the consequences of that act were unintended.") (emphasis added). There is also evidence supporting the inference Cloninger acted intentionally or knowingly: he shot D.J. with a deadly weapon "because [he] wanted to." See Cavazos, 382 S.W.3d at 384; Hart, 89 S.W.3d at 64; Charlton, 334 S.W.3d at 12. Thus, the evidence shows Cloninger caused serious bodily injury to a child under the age of fourteen. We conclude the State submitted evidence substantiating all essential elements of the charged offense. Accordingly, the evidence is sufficient under article 1.15 to support the conviction. We overrule Cloninger's first issue.
B. Involuntary intoxication
Cloninger argues in his second and third issues that he proved the "affirmative defense" of involuntary intoxication by a preponderance of the evidence, which he asserts was not rebutted by the State. The State contends that involuntary intoxication is not an affirmative defense unless it supports the defense of insanity, which Cloninger never raised. The State also argues Cloninger presented no evidence that due to involuntary intoxication, he did not know his conduct was wrong at the time of the offense. Further, the State contends, the trial court as trier of fact could rationally reject Cloninger's claim that he was unknowingly drugged by some substance at Roxie's apartment and could believe Roxie's testimony that she did not put any intoxicating substance in Cloninger's drink.
We have already discussed the other two defenses arising from a claim of involuntary intoxication, lack of the required mental state and lack of voluntary conduct. See Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (persons who were unconscious or semi-conscious at the time of the offense due to involuntary intoxication may argue lack of mens rea under section 6.02(a) or lack of voluntary conduct under section 6.01(a)); see also Farmer, 411 S.W.3d at 906 & n.6 (describing that the voluntary act requirement, actus reus, and mental state requirement, mens rea, of criminal law work in tandem; some offenses, however, like DWI, do not require a culpable mental state).
The defense of insanity due to involuntary intoxication is implicit in the language of section 8.01(a) of the penal code. Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002); see also TEX. PENAL CODE ANN. § 8.01(a). It is an affirmative defense to prosecution that, at the time of an alleged offense, the defendant, as a result of severe mental defect caused by involuntary intoxication, did not know his conduct was wrong. TEX. PENAL CODE ANN. § 8.01(a); Mendenhall, 77 S.W.3d at 818. A defendant relying on involuntary intoxication as an affirmative defense to criminal culpability must show at least that he exercised no independent judgment or volition in taking the intoxicant and that at the time of the alleged offense, as a result of involuntary intoxication, he did not know his conduct was wrong. Mendenhall, 77 S.W.3d at 818.
Here, the evidence of involuntary intoxication was disputed and does not support a reasonable inference that Cloninger did not know his conduct was wrong at the time of the offense. Although Cloninger and his expert thought that Cloninger was under the influence of a drug in addition to alcohol, Roxie denied putting any intoxicant in Cloninger's drink. There is no other evidence of any intoxicating substance involuntarily ingested by Cloninger. He voluntarily drank beer that day and took his medication, even if he took an additional dose by mistake. See Farmer, 411 S.W.3d at 907 (whether defendant took medication by mistake or on purpose is irrelevant in determining if there was a voluntary act under section 6.01(a), proper inquiry is whether defendant voluntarily picked up and ingested medication).
Further, there is no direct evidence that Cloninger, as a result of involuntary intoxication, did not know his conduct was wrong at the time of the offense. He did not testify he did not know his conduct was wrong, only that he did not remember the shooting. Moreover, Cloninger's attempt to justify his conduct by telling the officer that D.J.—an eight-year-old child—said he was going to kill Cloninger, is evidence that Cloninger was aware of the wrongfulness of his conduct.
The factfinder is the sole judge of the weight and credibility of the evidence and free to draw any reasonable inference from the evidence. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The factfinder has the duty to resolve conflicts in the testimony. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011). When, as here, the record supports conflicting inferences, we presume the factfinder resolved those conflicts in favor of its decision and defer to the determination. Id. Although these principles apply to the sufficiency standard under Jackson v. Virginia, they clearly support the trial court's resolution of the evidence under the standard applicable in this case. The trial court as trier of fact in this no contest proceeding was free to accept or reject the conflicting evidence regarding involuntary—as opposed to voluntary—intoxication and, based on Cloninger's words and conduct, could reasonably reject any inference that Cloninger did not know his conduct was wrong.
We conclude Cloninger did not prove the affirmative defense of involuntary intoxication. We overrule Cloninger's second and third issues.
CONCLUSION
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
151234F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1359896-V.
Opinion delivered by Justice Stoddart. Justices Francis and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 8th day of March, 2017.