Opinion
No. 05-07-00353-CR
Opinion issued February 20, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F05-72876-L.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
OPINION
Anthony Dwight Graves appeals his conviction for aggravated assault with a deadly weapon. He alleges the evidence is legally and factually insufficient and that his sentence is void because it was improperly enhanced. In a fourth issue, he claims the judgment should be reformed to show the case was disposed of by trial before the court rather than an open plea. As modified, we affirm the trial court's judgment.
Background
Debbie Brown and appellant shared an apartment with Brown's two daughters, son, and three grandchildren. On the night of July 11, 2005, Brown and appellant got into an argument about Brown's neighbor and ex-boyfriend, Robert Eldridge. According to Brown's testimony, the argument quickly escalated with appellant suggesting she was talking to Eldridge behind his back. When she tried to ignore him, appellant started tapping her like "a child . . . trying to get your attention." He also tried to touch her "in a sexual way." Brown told appellant she "wasn't in the mood to do anything, and to leave [her] alone." Appellant accused her of refusing his advances because she was "involved with" Eldridge. Weary of arguing about Eldridge, Brown asked appellant to leave and started to retrieve his belongings from a walk-in closet. Appellant shouted that he could remove his belongings himself, but he just stood by the closet and continued to talk. Believing appellant had no intention of leaving, Brown picked up a nearby hammer and pounded on a set of plastic drawers, yelling at appellant to leave. After she pounded on the drawers a second time, appellant grabbed Brown's shoulders, causing the two of them to fall onto the bed. Brown dropped the hammer during the fall. The two of them struggled on the bed, with appellant sitting on top of Brown in a straddling position. Appellant tried to put his hands around Brown's throat as she attempted to fight him off by hitting him. During the struggle, Brown fell to the floor and landed on her knees. Appellant then approached her from behind and placed her in a headlock, twisting her neck. Brown bit appellant's hand in an attempt to free herself. After struggling with appellant, Brown eventually ended up seated on the floor between the bed and the dresser. Appellant placed his hands around Brown's throat and began to choke her, saying, "I'll kill you. I'll kill you." Brown told appellant to let her go but had difficulty speaking. She tried to pry appellant's fingers from her throat. As she struggled with appellant, Brown heard her granddaughter saying, "Please don't hurt my granny. Don't hurt my granny." Brown next remembered her daughter Courtnie slapping her on the face and saying, "Please, mama. Please, mama." She did not know when Courtnie had entered the room. Courtnie, who lived in her mother's apartment and was four to five months pregnant at the time of the alleged assault, corroborated much of Brown's testimony. Courtnie was in the nearby living room when she heard the argument between appellant and her mother. Wondering what was happening, she looked into the bedroom and saw appellant on top of Brown. Appellant's hands were around Brown's neck and he was trying to choke her. Courtnie tried "to get him off of her" by pulling on appellant's shoulders but she could not move him out of the way. Realizing she could not move appellant, Courtnie went to the living room and grabbed the telephone. To make sure appellant would not know she was calling the police, Courtnie went outside the front door of the apartment to use the telephone. As she was "coming in the front door," Courtnie saw appellant leaving the bedroom. She went into the bedroom and saw Brown's mouth was bleeding and that she was having difficulty breathing. She was shaking and gasping for air. Courtnie asked appellant what he had done to her but appellant did not respond. He just kept saying, "I'm not going to let you hurt me." After appellant left the apartment, Courtnie grabbed her mother by the arm and led her to the couch. She was in and out of consciousness and her eyes "kept rolling back in her head." In an effort to help her regain consciousness, Courtnie lightly tapped Brown on the face and shook her. She kept asking her if she was okay, but she did not respond. Fearing for her mother's life, Courtnie went outside to look for the police. When she returned to the apartment, the police were already there. The State's final witness, Volanda Harris, testified that fifteen or sixteen years before trial she and appellant had been in a "roller coaster" relationship. During their six to seven year relationship, appellant engaged in repeated acts of destructive and violent behavior in order to get her attention. She testified, for example, that appellant had once set her car and her parents' car on fire. He also threatened her with a knife. On another occasion, appellant hit her in the forehead with a brick that he tossed through her kitchen window. Harris also described an incident where appellant followed her onto a bus and started firing a gun inside the bus. Testifying in his own defense, appellant provided a very different version of events. He claimed that as he and Brown were talking about Eldridge she stood up from the bed, hit him in the left eye with a closed fist, and kicked him off the bed. Appellant claimed Courtnie was in the bedroom with them and told Brown to stop and then left the bedroom shortly thereafter. Enraged, Brown told appellant to leave and began retrieving his belongings from the closet. When appellant told her, "No, I'll get it myself," Brown stepped aside and allowed him to enter the closet and remove his clothing. As appellant removed his clothing from the hangers, Brown entered the closet and said, "I told you to get out." She spun him around and kicked him in the genitals, causing appellant to fall to his knees in "excruciating pain." Appellant asked her what was wrong and why she was doing this. She replied, "I want you to get out now." Appellant then stood up to retrieve his clothes from the closet. According to appellant, Brown left the bedroom but returned a few moments later carrying a metal hammer in her right hand. She spun him around and hit him in the chest with the hammer. Trying to get away, appellant backed into the closet. Brown swung the hammer at him two more times but missed. Swinging it a third time, she hit appellant in the back of his shoulder. Appellant responded by grabbing Brown's right hand and pushing "her out by the neck" and forcing "her out of the closet" onto the bed. Appellant claimed Brown never dropped the hammer. Appellant claimed Brown fell onto the bed, scratching and biting him. She bit his hand and also bit her lip, causing it to bleed. Appellant claimed he tried to grab the hammer with one hand while using his other hand to push her face down on the bed. As he did this, Brown bit his wrist. Appellant showed the court what he claimed were scars from the bite marks, and appellant's mother testified that she noticed the injuries when she saw appellant a day or two after the incident. Appellant insisted he never hit Brown or tried to choke her with his hands. Appellant was charged with aggravated assault with a deadly weapon, enhanced by two prior convictions. The State eventually withdrew the allegations in the first enhancement paragraph. Appellant waived his right to a jury and trial was held before the court. The trial court found appellant guilty and, after hearing evidence on punishment, sentenced him to thirty-three years in prison.Discussion
In his first and second issues, appellant claims the evidence is legally and factually insufficient to support the conviction. Appellant was charged with committing aggravated assault by choking Brown with his hand, a deadly weapon. A person commits assault by doing any of the following: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Tex. Pen. Code Ann. § 22.01(a) (Vernon Supp. 2006). Assault rises to the level of aggravated assault if the actor either causes serious bodily injury or uses or exhibits a deadly weapon during the commission of the assault. See id. § 22.02(a). Appellant's theory at trial was based on self-defense. Self-defense is a justification that excludes the actor from responsibility for criminal conduct. See Tex. Penal Code Ann. § 9.02 (Vernon 2003). Under the law of self-defense, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. See id. § 9.31(a). The State has the burden of persuasion in disproving self-defense. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). The State meets this burden by proving its case beyond a reasonable doubt. See id. A guilty verdict is an implicit rejection of the defendant's self-defense theory. See id. at 914. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's guilty verdict was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under both standards of review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for aggravated assault with a deadly weapon. As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the trial court was entitled to believe the testimony of Brown and her daughter over appellant's testimony. In a legal sufficiency review, we must defer to the trier of fact's credibility and weight determinations. See Marshall, 210 S.W.3d at 625. Furthermore, viewed in a neutral light, the evidence is factually sufficient to support the conviction. This Court has authority to disagree with the fact-finder's determination of witness credibility "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. The record here does not support such a conclusion. Nothing in this record suggests the trial court some how erred in accepting the testimony of Brown and her daughter over appellant's testimony. We therefore overrule appellant's first and second issues. In his third issue, appellant claims his sentence is void because it was improperly enhanced and outside the applicable punishment range. Specifically, appellant argues he never entered a plea of true to the second enhancement paragraph and the trial court did not orally find the enhancement paragraph to be true before pronouncing sentence. By pronouncing sentence without either taking his plea or finding the enhancement paragraph to be true, appellant claims the trial court violated article 36.01(a)(1) and section 1(a) of article 42.03 of the code of criminal procedure. The State argues appellant failed to preserve this issue for appeal. We agree. Article 36.01(a) sets out the order in which the trial shall proceed. Article 36.01(a)(1) provides, in part:The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.Tex. Code Crim. App. Ann. art. 36.01(a)(1) (Vernon 2007). Article 42.03, section 1(a) of the code of criminal procedure provides that "sentence shall be pronounced in the defendant's presence." Id. art. 42.03, § 1(a). According to the record, appellant did not complain about the manner in which the trial court pronounced sentence when sentence was imposed. At the conclusion of the punishment hearing, and just before pronouncing sentence, the trial court noted appellant's prior conviction for aggravated assault. The court then informed appellant of the sentence it intended to impose: "The Court will proceed to set punishment at a term of thirty-three years' confinement in the Institutional Division of the Texas Department of Criminal Justice." The court provided the defense with an opportunity to object, asking, "Is there any reason at law why sentence should not be passed at this time?" Defense counsel replied, "No reason, Your Honor." In addition, we find no indication in the record that appellant filed a motion for new trial asserting violations of article 36.01(a)(1) or section 1(a) of article 42.03. By failing to bring these issues before the trial court by proper objection or motion, appellant waived any error. See Tex. R. App. P. 33(a)(1) (preservation of error under rule 33 requires the record demonstrate (1) the complaining party made a timely and specific request, objection, or motion and (2) the trial judge either ruled on the request, objection, or motion, or he refused to rule and the complaining party objected to that refusal); see also Martinez v. State, 155 S.W.3d 491, 494-95 (Tex.App.-San Antonio 2004, no pet.) (defendant failed to preserve error under article 36.01(a)(1)); Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, pet. ref'd) (defendant forfeited complaint regarding court's alleged failure to orally read enhancement paragraphs or make an oral finding thereon). Furthermore, assuming appellant somehow preserved error, his complaint fails on the merits. Article 36.01 does not require the reading of the enhancement portion of the indictment to the defendant and the receiving of his plea when, as in this case, the penalty stage of a bifurcated trial is held before the court alone. Simms v. State, 848 S.W.2d 754, 755 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Gardner, 858 S.W.2d at 659. Appellant elected to have the trial judge assess his punishment. Therefore, it was not necessary for the enhancement paragraph to be read or for appellant to plead to it. In addition, section 1(a) of article 42.03 did not require the trial court to orally announce its finding regarding the enhancement paragraph. See Gardner, 858 S.W.2d at 660. We overrule appellant's third issue. In his fourth issue, appellant argues the judgment should be reformed to reflect that the case was disposed of by trial before the court rather than an open plea. The State does not contest this issue. The written judgment in this case includes a provision entitled, "Terms of Plea Bargain." This part of the judgment incorrectly states that appellant entered an "OPEN PLEA." Accordingly, we sustain appellant's fourth issue and modify the judgment to replace the phrase "OPEN PLEA" with the words "None" or "N/A." See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.