Opinion
07-23-00420-CR
08-06-2024
AUGUSTINE GARCIA, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish
On Appeal from the 106th District Court Lynn County, Texas Trial Court No. 21-3425, Honorable Reed A. Filley, Presiding
Before PARKER and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
Judy C. Parker Justice
A jury found Appellant Augustine Garcia, Jr., guilty of family violence-occlusion assault with a prior felony conviction and assessed punishment at twenty years' confinement in the penitentiary. In his sole issue, Appellant argues the trial court erred by denying a lesser-included charge of misdemeanor assault. We affirm the judgment of conviction.
Family violence-occlusion assault is a third-degree felony. Tex. Penal Code Ann. § 22.01(b)(2)(B). The penalty is enhanced to that of a second-degree felony because Appellant was previously convicted for burglary of a habitation. See id. § 12.42(a).
Background
In March 2021, an indictment issued alleging Appellant intentionally, knowingly, and recklessly caused bodily injury to Laura Liendo, a member of Appellant's family, or member of Appellant's household, or person with whom Appellant has or has had a dating relationship (as described by sections 71.003, 71.005, and 71.0021(b) of the Texas Family Code), by intentionally, knowingly, and recklessly impeding Liendo's normal breathing or circulation of blood by applying pressure to her throat or neck. After Appellant pleaded not guilty, the matter was tried before a jury.
The State's evidence at trial established that Liendo and Appellant met in September of 2020. At that time, Appellant had recently been released from prison and had nothing. Liendo bought Appellant clothes, shoes, and food because she felt sorry for him. They began dating with Appellant referring to Liendo as his girlfriend and Liendo referring to Appellant as her boyfriend. Two to three weeks after they met, Liendo began living in a trailer and Appellant moved in with her. The two shared the same bed. However, a couple of days before the assault, Liendo decided the relationship was over and asked Appellant to leave. He refused.
On November 3, 2020, Appellant was outside the trailer drinking beer and watching Liendo unpack items from her truck and move them into the trailer. Liendo commented to Appellant that he was lazy. Appellant responded by throwing a beer at her. He became angry and began chasing Liendo around a picnic table. He grabbed her by her hair and started dragging her through the yard toward the alley where her truck was parked. During the assault, he punched her in the head, face, and chest with his fists. He poked her eyes with his fingers and began biting her on the face. Then he picked her up by the throat and choked her until she passed out.
The first officer on the scene was Captain Darren Walters, a patrol officer with the Tahoka Police Department. Liendo described the assault to him and told him her boyfriend, Appellant, was still inside the trailer. After Liendo was moved to a position of safety, Appellant was arrested. After waiving his Miranda rights, Appellant answered questions from Walters. He referred to Liendo as his girlfriend multiple times and denied assaulting her. At one point, he asked Walters if he could talk to his girlfriend, Liendo. Liendo was transported by ambulance to a local hospital for treatment of her injuries.
During the charge conference at the conclusion of the guilt-innocence phase of trial, Appellant objected to the trial court's charge to the jury and requested inclusion of an instruction regarding the lesser-included offense of misdemeanor assault. See TEX. PENAL CODE ANN. § 22.01(a). Appellant's request was denied.
The jury found Appellant guilty of the charged offense. At the punishment phase of trial, Appellant pleaded true to an enhancement paragraph based on his previous felony conviction for burglary of a habitation. The jury sentenced Appellant to twenty years' imprisonment in the Texas Department of Criminal Justice and assessed a $10,000 fine. This appeal followed.
Analysis
By his sole issue, Appellant asserts the trial court erred when it denied his request to charge the jury on the lesser-included offense of misdemeanor assault. Specifically, he argues there was controverting evidence concerning whether Appellant and Liendo were or had been in a dating relationship or were members of the same household.
Assault causing bodily injury is sometimes referred to as "simple" assault or misdemeanor assault. It is a Class A misdemeanor. Tex. Penal Code Ann. § 22.01(a)(1).
We review a trial court's refusal to include a lesser-included-offense instruction in the court's charge for an abuse of discretion. Manahan v. State, Nos. 07-18-00196-CR, 07-18-00197-CR, 2019 Tex.App. LEXIS 10232, at *3 (Tex. App.-Amarillo Nov. 25, 2019, no pet.) (mem. op., not designated for publication) (citing Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) (en banc)). To determine whether a defendant was entitled to a lesser-included-offense instruction, we apply a two-part test. Simms v. State, 629 S.W.3d 218, 222 (Tex. Crim. App. 2021). First, we must determine whether the proof necessary to establish the charged offense also includes the lesser offense. Id. This is a question of law, and it does not depend on the evidence to be produced at trial. Id. Second, if this requirement is met, we must further determine whether there is some evidence in the record that would permit the jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. Under this second step, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A defendant is entitled to an instruction on a lesser-included offense regardless of whether the evidence supporting the instruction is weak, impeached, or contradicted. Id. However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Id. Ultimately, the inquiry is whether the evidence established the lesser-included offense as a valid, rational alternative to the charged offense. Id.
As relevant here, a person commits the offense of assault-family violence ("occlusion assault") by impeding breath or circulation if (1) the person intentionally, knowingly, or recklessly causes bodily injury to the victim; (2) the victim was or had been in a dating or household relationship with the person; and (3) the offense was committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the victim by applying pressure to the victim's throat or neck or by blocking the victim's nose or mouth. TEX. PENAL CODE ANN. § 22.01(b)(2)(B). A person commits misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 22.01(a)(1).
See Ortiz v. State, 623 S.W.3d 804, 805-06 (Tex. Crim. App. 2021) (referring to the offense as "occlusion assault").
In Ortiz v. State, the Court of Criminal Appeals held that misdemeanor assault is not a lesser-included offense of occlusion assault when the disputed element is the injury itself. 623 S.W.3d 804, 805-806 (Tex. Crim. App. 2021). However, Ortiz "does not foreclose all lesser-included-offense instructions for occlusion assault." Id. at 808. If the relationship of the parties is at issue, then an instruction on misdemeanor assault may be warranted. Id. Because Appellant has raised an issue about the relationship between himself and Liendo, we deem the first step of the analysis satisfied.
We next consider the second step of the analysis and whether there is more than a scintilla of evidence to entitle Appellant to a lesser-included charge.
The indictment alleges that Liendo had or had been in a dating relationship with Appellant or was a member of his household. To establish his entitlement to a lesser-included charge for misdemeanor assault, Appellant's controverted evidence must refute or negate both that Appellant and Liendo had been in a dating relationship and that they had been members of the same household. See Feldman v. State, 71 S.W.3d 738, 752-53 (Tex. Crim. App. 2002) (in prosecution alleging alternative means of committing offense, defendant not entitled to lesser-included-offense instruction under second step of lesser-included-offense analysis without evidence negating all alternative means of committing offense). Because it is dispositive, we will focus our analysis on whether Appellant and Liendo had been in a dating relationship.
Per the jury instructions in this case and the Texas Family Code, a "'[d]ating relationship' means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature." See TEX. FAM. CODE ANN. § 71.0021(b). "A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a 'dating relationship' ...." Id. § 71.0021(c). The Family Code provides that "[t]he existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship." Id. § 71.0021(b).
In support of Appellant's argument, he points to Liendo's testimony that she bought shoes and clothes for Appellant because she felt sorry for him, and "maybe" she was looking for a relationship to replace her recently deceased son. Appellant also argues the relationship did not last long, Liendo and Appellant hardly saw each other, and Liendo was not financially dependent on Appellant. He further argues that, at the time of the assault, Liendo wanted him to leave because he was "getting on [her] nerves," and she did not consider them to be in a "boyfriend/girlfriend" relationship. According to Appellant, this evidence suggests that the relationship was not "romantic or intimate in nature" given the "length, frequency, and type of relationship."
We cannot agree with Appellant that the evidence he cites refutes or negates the evidence that he and Liendo were in or had been in a dating relationship. During her direct examination, Liendo characterized her relationship with Appellant as a dating relationship, which lasted approximately five weeks. She said that they referred to each other as boyfriend and girlfriend, and they slept in the same bed after Appellant moved in with her. Moreover, at the scene of the assault, Liendo told the investigating officer that Appellant was her boyfriend and Appellant told the officer at least twice that Liendo was his girlfriend. This testimony suggests that Liendo and Appellant had "a continuing relationship of a romantic or intimate nature" as is required to establish a dating relationship under the Family Code. TEX. FAM. CODE ANN. § 71.0021(b); Edward v. State, 635 S.W.3d 649, 658 (Tex. Crim. App. 2021) (when victim or defendant refer to each other as "boyfriend" or "girlfriend," a dating relationship as defined by Family Code is implied); Villareal v. State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009) (evidence sufficient to show dating relationship where defendant and victim spent night at each other's residences and had dated only about one month); Granger v. State, 584 S.W.3d 571, 575-76 (Tex. App.-San Antonio 2019, no pet.) (sufficient evidence of dating relationship: defendant at victim's home "all the time," identified victim as his girlfriend, and victim testified the two had a dating relationship).
Because the evidence highlighted by Appellant does not, even if believed, refute or negate that Appellant and Liendo had not been in a dating relationship, the second portion of the analysis has not been met. See Arevalo v. State, 970 S.W.2d 547, 54849 (Tex. Crim. App. 1998) (second prong of lesser-included-offense analysis requires evidence which, if believed, would refute or negate every theory which would elevate the offense from the lesser to the greater). Accordingly, the trial court did not abuse its discretion in denying a lesser-included charge of misdemeanor assault. We overrule Appellant's sole issue.
We do not address Appellant's argument regarding whether he and Liendo were members of the same household, as it is unnecessary to our disposition of Appellant's issue. See TEX. R. APP. P. 47.1.
Reformation of Judgment of Conviction By Jury Trial
This Court has the authority to reform the trial court's judgment to correct a clerical error. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc). In the present case, the Judgment of Conviction by Jury Trial indicates that Appellant pleaded guilty. However, the record unambiguously shows that Appellant pleaded not guilty. As such, we reform the Judgment of Conviction by Jury Trial to change the notation that he pleaded guilty to not guilty.
Conclusion
We reform the trial court's Judgment to change the notation of his plea from guilty to not guilty. Having overruled Appellant's sole issue, we affirm the trial court's Judgment of Conviction by Jury Trial as reformed.