No. 05-05-00407-CR
Opinion Filed January 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-00164-KT. Affirm.
Before Justices MORRIS, MOSELEY, and RICHTER.
Opinion By Justice RICHTER.
Ronald Jefferson, Jr., appeals his jury conviction and eighteen-year sentence for the aggravated assault with a deadly weapon of Diane Riley. In two points of error, Jefferson asserts the evidence is factually insufficient to support the jury's rejection of his self-defense claim and the court erred in instructing the jury at punishment regarding the availability of good conduct time. We affirm.
Jefferson was actually indicted for burglary of a habitation, but the charge included a submission not only for burglary of habitation but also for the lesser-included offense of aggravated assault. See Mitchell v. State, 137 S.W.3d 842, 846 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd).
Background
The assault occurred in Riley's apartment. Riley was cutting some shrimp and waiting for her son to arrive when Jefferson came to her apartment. A struggled ensued resulting in Riley being "cut across" her neck. Jefferson left Riley in her apartment, but was subsequently arrested. At trial, Riley testified she opened the door believing Jefferson was her son. Jefferson told her he was fleeing from the police and asked her if he could use her phone. When she refused, Jefferson began pushing his way into the apartment. Riley tried to resist but fell to the floor. Jefferson then took the knife Riley had been using to cut the shrimp, cut a sash Riley had been wearing and used it to tie her hands and feet, and "cut across her throat." As she lay on the floor bleeding, Jefferson used her phone and asked to be picked up. Minutes later, he left and Riley's son arrived. Riley was taken to the hospital where she underwent surgery. Riley testified that she was "very much" in fear of her life throughout the ordeal. She also testified that, although she was holding the knife when she opened the door, she did not use it to defend herself. Matthew Lovitt, a trauma surgeon, testified he treated Riley when she arrived at the hospital. According to Lovitt, Riley was bleeding "significantly" and had sustained a life-threatening injury. In Lovitt's opinion, the knife used to inflict the wound was used in a manner capable of causing death or serious bodily injury and was a deadly weapon. Testifying on his behalf, Jefferson denied pushing his way into Riley's apartment and denied telling her he was fleeing from the police. His testimony was markedly different than Riley's. According to Jefferson, Riley did not answer the door herself when he knocked but simply told him to come in. Jefferson told Riley he "was stranded" and Riley let him use her phone. As he got off the phone, they could hear a "police helicopter" hovering above and a description of Jefferson being broadcast to the police. Jefferson turned to Riley and saw "fear in her eyes." Riley then "came at" him with the knife. He backed away but Riley "came at" him again. Jefferson was able to grab her hand and the two began to struggle. At some point, Jefferson was able to get the knife away from Riley and was able to stand up. It was then that he realized Riley had been injured. Jefferson testified he did not intend to hurt Riley and must have cut her when he "stroked across" her throat as he got the knife away from her. The jury was instructed to convict Jefferson of aggravated assault if it found beyond a reasonable doubt either of two theories — (1) that Jefferson intentionally or knowingly caused serious bodily injury to Riley or (2) used the knife as a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a) (Vernon Supp. 2005). The jury was also instructed to acquit Jefferson if it found, or had a reasonable doubt that (a) Jefferson assaulted Riley with a deadly weapon but reasonably believed the force was immediately necessary to protect himself against Riley's use or attempted use of unlawful force and (b) a reasonable person in his situation would not have retreated. See Pen. Code Ann. §§ 9.31, 9.32 (Vernon 2003); Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). The jury returned a general verdict, finding Jefferson guilty of aggravated assault and impliedly rejecting his self-defense claim. Sufficiency of the Evidence
In his second point of error, Jefferson asserts that the evidence is factually insufficient to support the jury's implied rejection of his self-defense claim. In making this argument, Jefferson relies on his testimony that Riley "came at" him with the knife and was accidentally cut when he managed to get the knife away from her. Jefferson maintains it was "a clear case of self-defense" and such evidence greatly outweighs contrary proof. We disagree. In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self-defense, we review all the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the claim does not meet the beyond-the-reasonable doubt standard. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In conducting this review, we bear in mind that the fact finder may draw reasonable inferences, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Zuniga, 97 S.W.3d at 595; Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Johnson v. State, 959 S.W.2d 284, 287 (Tex.App.-Dallas 1997, pet. ref'd). Viewing the evidence in a neutral light, we conclude the State's evidence taken alone is not too weak to support the finding of guilt beyond a reasonable doubt and the evidence supporting the defense is not so strong that the rejection of the claim does not meet the beyond-a-reasonable-doubt standard. Riley's testimony that Jefferson pushed his way into her apartment, tied up her hands and feet and cut "across her throat," along with Lovitt's testimony that Riley suffered a "life-threatening" injury and the knife as used was a deadly weapon established the commission of aggravated assault beyond a reasonable doubt. See Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a). Jefferson's testimony that Riley "came at" him with the knife once she realized he was fleeing from the police, they struggled, and she was cut as he got the knife away from her established not a claim of self-defense but a lack of intent to cause serious bodily injury or knowledge that he caused serious bodily injury or used the knife as a deadly weapon. By returning a verdict of guilty, the jury necessarily rejected Jefferson's testimony. As the sole judge of the witnesses' credibility and weight to give their testimony, the jury was free to do that and we will not disturb that finding. We overrule Jefferson's second point of error. Good Conduct Time
Jefferson's first point of error stems from the judge's including, in accordance with section 4(a) of article 37.07 of the Texas Code of Criminal Procedure, an instruction in the punishment charge regarding the availability of good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. Pamph. 2005). Jefferson argues error occurred because, having been convicted of aggravated assault with a deadly weapon, he was ineligible for good conduct time credit. See Tex. Gov't Code Ann. § 508.149(a) (Vernon 2004). In making this argument, Jefferson recognizes the good conduct time instruction is mandated by section 4(a) of article 37.07. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Jefferson further recognizes that the Texas Court of Criminal Appeals has specifically concluded that inclusion of the good conduct time instruction in the jury charge is not error even when, as here, the defendant is ineligible for good conduct time credit unless "a reasonable jury probably was actually confused by the [instruction]." See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002). Jefferson argues that the instruction in his case "was calculated to mislead the jury and there is a reasonable probability that it did mislead the jury. Consequently, this case should be reversed and remanded for a new punishment hearing." Jefferson, however, provides no support in the record for this conclusory statement, and we find nothing in the record to support it. See Tex.R.App.P. 38.1(h). Nothing in the record suggests jurors discussed, considered, or tried to apply what they were told about good conduct time and parole. We conclude Jefferson's complaint is without merit. Accordingly, we overrule Jefferson's first point of error. We affirm the trial court's judgment.