Opinion
No. 05-11-00035-CR
04-18-2012
MATTHEW RYAN FEEHAN, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM and Opinion Filed April 18, 2012
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-81164-09
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
A jury convicted Matthew Ryan Feehan of aggravated robbery and assessed punishment of eight years' imprisonment. In three issues, Feehan asserts the evidence is insufficient to support either the conviction for aggravated robbery or a conviction for the lesser-included offense of aggravated assault and the trial court erred by instructing the jury on the lesser-included offense of aggravated assault by threat. We affirm the trial court's judgment. Background
Brandy Woolman and her boyfriend, "Tanner," lived with two roommates in an apartment in Plano, Texas. In April 2009, Craig Walters, Woolman's brother-in-law, was also temporarily living in the apartment. On April 20, 2009, Feehan walked through the back door of the apartment wearing dark clothes, a bandanna over his face, and a beanie on his head. According to Walters, Feehan pointed a gun at him and asked, "What's going on?" and "Where is it at?" Walters told Feehan that he could have whatever was in the apartment. Walters testified that Feehan said he would shoot Walters and acted as if he was going to pull the trigger of the gun.
Walters was scared, and tried to escape through the front door. Walters testified that Feehan then hit him the back of the head with the gun "just hard enough to let me know, you know, you're not getting out of this house." According to Walters, the hit was "not really" painful and he "didn't feel anything really at that moment." Walters was "just hoping there wasn't a bullet." When asked if the assault caused pain later, Walters stated, "It didn't hurt. It just really scared me." The hit caused "minor swelling" to the back of Walters's head.
Feehan and Walters heard Woolman, Woolman's mother, and Walters's daughter coming to the back door. While Feehan was opening the back door, Walters ran out the front door. Woolman and her mother testified Feehan pointed the gun at them, and they ran. Feehan also ran, but was caught by Walters. The two men began fighting in the parking lot.
Woolman returned to her apartment and saw another man running down the stairs and out the front door. Feehan escaped from Walters and ran into another apartment with the second man. After Feehan's arrest, the police discovered a gun, the clothes Feehan was wearing at the time of the offense, and some items stolen from Woolman's apartment in the second apartment.
Feehan admitted he went to Woolman's apartment, but asserted he only wanted to "beat up" Tanner. He denied that he had a gun or intended to rob anyone in Woolman's apartment.
The trial court instructed the jury on aggravated robbery and the lesser-included offense of aggravated assault. The jury convicted Feehan of aggravated robbery. Sufficiency of the Evidence
In his first issue, Feehan asserts the evidence is insufficient to support the conviction for aggravated robbery because there is no evidence that he, either as a principal or a party, caused bodily injury to Walters. Based on the same argument, Feehan contends in his second issue that the evidence is insufficient to support a conviction on the lesser-included offense of aggravated assault that was also submitted to, but not reached by, the jury.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied, 2012 WL 297167 (U.S. Mar. 19, 2012). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury").
A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). As charged in this case, a person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 29.02(a)(1) (West 2011). Feehan challenges only the sufficiency of the evidence to support a finding that he caused bodily injury to Walters.
"Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(8) (West Supp. 2011). The court of criminal appeals has defined "bodily injury" broadly to encompass "even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Proof of bodily injury is not dependent on the severity of violence used against the victim as long as some resulting physical pain, illness, or impairment of physical condition can be identified. Id. at 787; see also Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981) (evidence of cut sufficient to show bodily injury); Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex. App.-El Paso 2002, no pet.) (existence of cut, scrape, or bruise sufficient evidence of physical pain necessary to establish bodily injury within meaning of statute).
Testimony that a victim experienced physical pain is not required to prove bodily injury. Arzaga, 86 S.W.3d at 778-79. Rather, evidence of a visible injury allows for an inference of pain. See id. at 778 (jury permitted to draw inferences from evidence, including inference that victim actually felt or suffered physical pain); Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.-Corpus Christi 1988, pet. ref'd) (although victim did not testify he suffered "pain," jury could infer bruises and muscle strain caused "physical pain").
Feehan argues the evidence is insufficient to show Walters suffered physical pain because Walters testified Feehan hit him with the gun only "hard enough" to let him know he was not leaving the apartment, and denied the hit caused him pain "at the time." Walters also testified, however, that the hit caused "minor swelling." Even though Walters denied he felt pain, the jury could have inferred from the minor swelling caused by the hit that Walters suffered physical pain. See Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.-Dallas 2004, no pet.) ("A fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes for it."); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.-San Antonio 1997, no pet.) (even though victim testified defendant did not assault her and any bruise was from venetian blinds, evidence was sufficient to support conviction for assault).
See also Isaac v. State, No. 05-10-00492-CR, 2011 WL 5386371, at *3 (Tex. App.-Dallas Nov. 9, 2011, no pet.) (mem. op., not designated for publication) (even though victim testified that hit to his head "didn't hurt," evidence that defendant threw a telephone at victim's head causing a scrape was sufficient to support jury's finding of bodily injury).
It was the role of the jury to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. Reviewing all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found the essential elements of the offense, including that Feehan caused bodily injury to Walters, beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We resolve Feehan's first issue against him.
Based on our resolution of Feehan's first issue, we need not reach Feehan's second issue in which he complains the evidence is also insufficient to support a conviction on the lesser-included offense of aggravated assault. See Tex. R. App. P. 47.1. Jury Charge
In his third issue, Feehan contends the trial court erred by instructing the jury on the lesser- included offense of aggravated assault by threat. At the charge conference the State requested a jury instruction on the lesser-included offense of "aggravated assault." Feehan did not object to the requested instruction. The aggravated assault instruction in the charge included both assault by bodily injury and assault by threat. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743-44. When, as in this case, the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant 'has not had a fair and impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)).
As relevant to this case, an offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006). Feehan was charged with aggravated robbery by causing bodily injury. The State concedes that aggravated assault by threat is not a lesser- included offense of aggravated robbery by causing bodily injury. See Bell v. State, 693 S.W.2d 434, 436 n.3 (Tex. Crim. App. 1985); see also Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008) (aggravated assault by causing bodily injury and aggravated assault by threat are two distinct crimes). We therefore turn to whether Feehan was egregiously harmed by the inclusion in the charge of the instruction on aggravated assault by threat.
Where error occurs in the jury instruction for a lesser-included offense and the jury finds the defendant guilty of the greater offense, the verdict nullifies any possible harm from the defective instruction on the lesser offense. Saunders v. State, 913 S.W.2d 564, 569 (Tex. Crim. App. 1995); Clark v. State, 717 S.W.2d 910, 918 (Tex. Crim. App. 1986) (when jury finds defendant guilty of greater offense, any "errors in the charge on the lesser included offense, for which the appellant was not convicted, could not so have misled the jury as to constitute fundamental error"); McIntosh v. State, 297 S.W.3d 536, 544-45 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Here, the error was in the instruction on the lesser-included offense of aggravated assault. When the jury convicted Feehan of the greater offense of aggravated robbery, the verdict nullified any error and harm in the lesser-included offense portion of the charge. Accordingly, Feehan was not egregiously harmed. We resolve Feehan's third issue against him.
See also Wynn v. State, No. 05-07-01213-CR, 2009 WL 73222, at *3 (Tex. App.-Dallas Jan. 13, 2009, pet. dism'd) (mem. op., not designated for publication).
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We affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110035F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MATTHEW RYAN FEEHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00035-CR
Appeal from the 416th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 416- 81164-09).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered April 18, 2012.
ROBERT M. FILLMORE
JUSTICE