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Kassymkhan v. State

Court of Appeals of Texas, First District
Jul 2, 2024
No. 01-23-00299-CR (Tex. App. Jul. 2, 2024)

Opinion

01-23-00299-CR

07-02-2024

AIZHAN KASSYMKHAN, Appellant v. THE STATE OF TEXAS, Appellee


Do not publish. TEX. R. APP. P. 47.2(b).

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1740091

Panel consists of Justices Landau, Countiss, and Guerra.

MEMORANDUM OPINION

JULIE COUNTISS, JUSTICE

A jury found appellant, Aizhan Kassymkhan, guilty of the felony offense of violation of a protective order, and the trial court assessed her punishment at confinement for two years, suspended the sentence, and placed her on community supervision for three years. In two issues, appellant contends that the evidence is insufficient to support her conviction and the trial court erred in denying her request for a jury instruction on self-defense.

We affirm.

Background

Houston Police Department Officer D. Bonk testified that on July 8, 2021, he was dispatched to the Brownstone Apartments in Harris County, Texas to investigate an assault that had "just occurred." As a result of his investigation, the district attorney accepted charges against appellant for the offense of "family violence assault," and certain bond conditions were imposed on appellant.

A copy of the "Order for Pretrial Supervision and Bond Conditions," entered on July 9, 2021 by the Harris County Criminal Court at Law No. 8 in trial court cause number 2366455, was admitted into evidence. Among other conditions, the order prohibited appellant from having any "threatening, harassing[,] or assaultive contact with [Sarybyev Askarbek, the complainant]." The order contained a signed "Defendant's Acknowledgment," which provided as follows:

I understand that the court is ordering my compliance with the conditions listed above as a requirement of my continued release on bond. I agree to these conditions. I understand that my failure to comply with these conditions may result in the forfeiture or revocation of my bond and confinement, and possibly a separate action against me for contempt of court for which I could be separately fined and jailed as detailed above.

Harris County Constable's Office ("HCCO"), Precinct 5, Officer R. Valdez testified that she was an investigator and focused primarily on cases involving "[f]amily violence, robberies, thefts," and "burglaries." On September 17, 2021, she and other law enforcement officers were "dispatched to an assault in progress" at the Holiday Inn hotel near Westgreen Boulevard and Interstate 10, commonly known as the Katy Freeway, in Harris County, Texas.

When Officer Valdez arrived at the hotel, she spoke to her supervisor at the scene, then "went inside and spoke to the [hotel] manager." She obtained statements from two witnesses, one of whom was Telma Gonzalez, a hotel housekeeper.

After her initial investigation, Officer Valdez came in contact with appellant, whom she identified in the courtroom. Appellant had "visible injuries." Valdez noted that appellant had a bruise between her eye and her cheekbone, but it "looked old." "The coloring of the bruise was faint," and "[t]here was no redness" around it.

The trial court admitted into evidence photographs of appellant's face from September 17, 2021.

During her investigation, Officer Valdez also encountered the complainant, who was outside the hotel by the pool. The complainant "didn't want to provide any information," so Valdez "didn't really get too much of a statement." Valdez noted that the complainant's "shirt was all torn up and he had multiple [scratch] marks around his neck and shoulders." As part of her investigation, Valdez took photographs of the complainant, including a photograph of the top of his hands.Valdez explained that she typically photographed "the top of [a person's] hands" to document "any defensive wounds or . . . any bruising on the knuckles or anything like that." She did not observe any of those kinds of injuries on the complainant.

Photographs of the complainant taken on September 17, 2021 were admitted into evidence at trial.

When asked during her testimony to explain "mutual combat," Officer Valdez stated that it was "when both parties get into a physical altercation and the party at fault, or the aggressor, can't be determined." Based on her investigation, Valdez stated that she had no reason to believe that the complainant and appellant had engaged in mutual combat. She noted that the bruise under appellant's eye "looked old" because "[t]he coloring of the bruise was faint" and "[t]here was no redness or anything around it." As a result of Valdez's investigation, appellant was arrested.

Gonzalez testified that she was a "supervisor in a cleaning outfit" at the Holiday Inn hotel located at 21010 Katy Freeway in Harris County. She identified appellant in the courtroom, explaining that she recognized appellant because when appellant was a guest at the hotel, Gonzalez saw her go to the hotel breakfast.

Gonzalez further testified that on the morning of September 17, 2021, she was working at the hotel, "checking the rooms" because it was "close to time to check out." She heard a woman's screams and "blows" coming from one hotel room, so she "sent a message to [her] manager" to let the manager know what "was happening." The manager sent a maintenance worker to assist Gonzalez. The maintenance worker knocked on the hotel room door. When the door opened, appellant was in the bathroom with a baby, and a man and a toddler were in the room. The man was trying to open the bathroom door. When appellant came out of the bathroom with the baby, the man took the baby, who was about six or seven months old, from her.

The man appeared "sad" and "nervous," and appellant appeared "[o]ut of control." Gonzalez explained that appellant did not pay attention to her or the maintenance worker "even though [they] were there." Appellant "was more focused on yelling at the man," and "she hit him . . . about four times." Appellant hit the man even though he was holding the baby, and Gonzalez noticed that the man tried to keep the baby away from appellant whenever she hit him. At one point, the man grabbed the baby and turned his back to appellant.

Gonzalez stated that she saw appellant hit the man on his chest with her hands and then on his back "with her fists" a few times. Appellant asked the man to tie her shoes, and "[w]hen he bent over, she pushed him . . . by the head." Gonzalez noticed that the man had "red marks and scratches" on "his neck, his shoulder and his chest." During the incident, the man did not appear aggressive, and Gonzalez never saw him hit appellant or yell at her.

HCCO, Precinct Five, Deputy L. Flores testified that on September 17, 2021, she "was dispatched to an assault in progress" at the Holiday Inn hotel located at 21010 Katy Freeway in Harris County. When she arrived, she first encountered the complainant, who "was standing next to the pool gate in front of the [hotel]." The complainant "appeared to have been involved in a physical fight." Flores noticed that "[h]e had red marks on his neck[,] and there were scratches" and "broken skin." The complainant's "hair was not combed and his shirt . . . was torn" from "his neck on his right side up to his armpit." His shirt "appeared to have been pulled by force." Flores called emergency medical services to come "check out [the complainant's] injuries."

Deputy Flores then spoke with appellant, whom she described as having a "careless demeanor." Flores noticed that appellant "had a bruise on her right cheekbone." When Flores asked about it, appellant told her that "she was hit by [a] door on accident." Flores noted in her report that appellant's "hair was messed up as if she had been in a fight."

Appellant also told Deputy Flores "that she was discussing divorce with her husband," the complainant, in the hotel room. When the complainant tried to leave, appellant "grabbed him by the collar of his shirt and pulled him . . . back into the [hotel] room." Appellant admitted to Flores "that she might have" touched the complainant "in the process." Appellant never said that the complainant touched her.

On direct examination, Deputy Flores stated that appellant admitted to "scratch[ing]" the complainant. On cross-examination, after refreshing her recollection by viewing the video recording of her interview with appellant, Flores corrected her testimony, noting that appellant admitted that she "might have touched" the complainant.

Deputy Flores further explained that later she learned that at the time of the assault, appellant was subject to bond conditions that were put in place to protect the complainant.

Sufficiency of Evidence

In her first issue, appellant argues that the evidence is insufficient to support her conviction because there was no evidence that the complainant had "a bruise or cut, physical pain, illness, or any impairment of physical condition" that "was caused by being hit by [appellant]."

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the elements of the offense beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We defer to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. That said, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which she is accused. Id.

We note that in reviewing the sufficiency of the evidence, a court must consider both direct and circumstantial evidence and any reasonable inferences that may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (evidence-sufficiency standard of review same for both direct and circumstantial evidence). Circumstantial evidence is just as probative as direct evidence in establishing the guilt of an actor and circumstantial evidence alone can be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with a defendant's guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202, 207-08 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd). Rather, a court considers only whether the inferences necessary to establish guilt are reasonable based on the cumulative force of all the evidence when considered in the light most favorable to the jury's verdict. See Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13; see also Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination."). The jury, as the judge of the facts and credibility of the witnesses, could choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.- Houston [1st Dist.] 1994, pet. ref'd).

A person commits the offense of violation of a protective order if, "in violation of an order issued under [one of certain provisions of the Texas Family Code or the Texas Code of Criminal Procedure], the person knowingly or intentionally commits family violence" or performs another prohibited act. Harvey v. State, 78 S.W.3d 368, 368 (Tex. Crim. App. 2002); see Tex. Penal Code Ann. § 25.07.

The application paragraph of the trial court's charge to the jury instructed it as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of September, 2021, in Harris County, Texas, [appellant] did then and there unlawfully, with knowledge of the setting of a condition of bond in a family violence case that related to the safety of the victim and the community, namely a condition of bond ordered in the Harris County Criminal Court at Law No. 8, did violate said condition of bond by intentionally or knowingly committing family violence, namely the assault of [the complainant] by striking [the complainant] with her hand, then you will find
[appellant] guilty of violation of a protective order enhanced, as charged in the indictment.

Appellant argues that the evidence is insufficient to support her conviction because there was no evidence that the complainant had "a bruise or cut, physical pain, illness, or any impairment of physical condition" caused by appellant, which appellant asserts was required to show that she committed assault against the complainant.

Texas Penal Code section 25.07 incorporates by express reference the definitions for certain kinds of assault, but it does not do so for the offense of assault defined under Texas Penal Code section 22.01(a)(1). See Tex. Penal Code Ann. § 25.07(b)(4), (8). For purposes of this appeal, we assume, without deciding, that proof of "assault" as set forth in the application paragraph quoted above requires proof that appellant "cause[d] bodily injury" to the complainant. See id. § 22.01(a)(1).

A finding of assault requires proof that a defendant "cause[d] bodily injury" to the complainant. Tex. Penal Code Ann. § 22.01(a)(1); Bin Fang v. State, 544 S.W.3d 923, 927 (Tex. App.-Houston [14th Dist.] 2018, no pet.). "Bodily injury" includes physical pain or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8) (internal quotations omitted). "Any physical pain, however minor, will suffice to establish bodily injury." Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). Further, "a fact finder may infer that a [complainant] actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it." Id.

Here, Gonzalez testified that she saw appellant hit the complainant on his chest with her hands, punch his back, and push his head. Gonzalez also noticed that the complainant had "red marks and scratches" on "his neck, his shoulder[,] and his chest." Further, Deputy Flores testified that she noticed that the complainant's shirt was torn and "appeared to have been pulled by force," and she stated that the complainant "had red marks on his neck," "scratches," and "broken skin." See Maples v. Maples, 601 S.W.3d 23, 30 (Tex. App.-Tyler 2020, no pet.) ("Evidence of a cut or bruise is sufficient to show bodily injury."); Bing Fang v. State, 544 S.W.3d 923, 928 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (law enforcement officers' testimony "that the complainant had scratches on her forehead" and "a bruise on her arm" was "sufficient to prove bodily injury"); Shah v. State, 403 S.W.3d 29, 34-35 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd) (sufficient evidence of bodily injury because jury could reasonably infer that "lesion on the bridge of [the complainant's] nose would cause physical pain"). Additionally, appellant admitted to Flores that she had "grabbed [the complainant] by the collar of his shirt and pulled him . . . back into the [hotel] room."

In addition to the jury's own understanding of the causes of physical pain, Deputy Flores's testimony that she called for emergency medical services to come "check out [the complainant's] injuries" supports a reasonable inference that the complainant suffered physical pain.

Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant's scratching and punching of the complainant, which was viewed by Gonzalez, caused him physical pain. Accordingly, we hold that the evidence is sufficient to support appellant's conviction.

We overrule appellant's first issue.

Jury Charge Error

In her second issue, appellant argues that the trial court erred by denying her request for a jury instruction on self-defense because "there was ample evidence supporting self-defense."

We review complaints of jury-charge error under a two-step process. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we must determine whether error exists in the charge, and second, if error does exist, whether sufficient harm resulted from the error to require reversal. Ngo, 175 S.W.3d at 743-44; Abdnor, 871 S.W.2d at 731-32. We review a trial court's decision not to submit an instruction in the jury charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 121-22 (Tex. Crim. App. 2000).

If, as here, the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant shows that she suffered some harm as a result of the error. Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). In demonstrating that "some harm" occurred, appellant must also show that she suffered some actual, rather than merely theoretical, harm from the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); see also Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020) (under "some harm" standard, "[r]eversal is required if the error was calculated to injure the rights of the defendant"). We assess harm by considering: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the trial record as a whole. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

The trial court is required to deliver to the jury a written charge "distinctly setting forth the law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14. The purpose of the jury charge is to inform the jury of the applicable law and guide the jury in its application to the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

A defendant is entitled to a jury instruction on any defensive theory raised by the evidence or testimony when such an instruction is properly requested. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984); see also Tex. Penal Code Ann. § 2.03(c). Whether the evidence or testimony is presented by the defense or the State is irrelevant, as is the strength of the evidence or testimony. Booth, 679 S.W.2d at 500. Determining "[w]hether a defense is supported by the evidence is a sufficiency question reviewable on appeal as a question of law." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). When the evidence fails to raise a defensive issue, the trial court does not err by refusing the defendant's requested instruction. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).

Texas Penal Code section 9.31 states that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect . . . against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a); see also Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). A reasonable belief is a belief that would be held by an ordinary and prudent person in the same circumstances as the actor. Tex. Penal Code Ann. § 1.07(a)(42). The use of force against another is not justified in response to verbal provocation alone. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).

Self-defense is a justification defense, which requires that a defendant admit, or at a minimum not deny, the charged conduct. Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021); Jordan, 593 S.W.3d at 343 ("Self-defense is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct."); see also Gamino, 537 S.W.3d at 512 ("Admitting to the conduct does not necessarily mean admitting to every element of the offense."). A defendant "cannot both invoke self-defense and flatly deny the charged conduct." Jordan, 593 S.W.3d at 343; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) ("If the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense that is subject to the doctrine of confession and avoidance.").

At the same time, a defendant is not required to testify in order to raise the issue of self-defense. See Vasquez v. State, No. 01-17-00597-CR, 2018 WL 6216025, at *3 (Tex. App.-Houston [1st Dist.] Nov. 29, 2018, pet. ref'd, untimely filed) (mem. op., not designated for publication). The issue "may be raised by the testimony of witnesses who testify to the defendant's acts and words at the time of the offense." Reed v. State, 703 S.W.2d 380, 384-85 (Tex. App.-Dallas 1986, pet. ref'd) (citing Smith v. State, 676 S.W.2d 584, 587 (Tex. Crim. App. 1984)); see also VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.-Austin 2005, no pet.) ("Defensive issues may be raised by the testimony of any witnesses, even those called by the State."). Yet the record must contain some evidence or "observable manifestations" of the defendant's state of mind at the time of the alleged act of self-defense. See VanBrackle, 179 S.W.3d at 713 (internal quotations omitted). Examples of observable manifestations of a defendant's state of mind include evidence that the defendant called for help during an altercation or told the complainant, "I don't want to fight you . . . leave me alone," as they struggled. Smith, 676 S.W.2d at 586 (internal quotations omitted).

The evidence in this case shows that when she was outside the room, Gonzalez heard a woman's screams "and blows in a [hotel] room." Gonzalez noted that when the hotel room door was opened, appellant and a baby were shut in the bathroom and the complainant was trying to open the bathroom door. Deputy Flores recalled that appellant had a bruise under her eye, and in her report, Flores noted that appellant's hair was "messed up as if she had been in a fight." Assuming, without deciding, that this evidence supports the inclusion of appellant's requested self-defense instruction in the trial court's charge to the jury, we next consider whether appellant has shown that she suffered some harm as a result of the purported error. See Sakil, 287 S.W.3d at 25-26.

As to the trial court's charge to the jury, it focused solely on appellant's conduct, allowing the jury to find that appellant violated a condition of bond "by striking [the complainant] with her hand." It did not permit the jury to consider whether appellant's conduct was a defensive response to the complainant's use or attempted use of force.

As to the contested issues and weight of the probative evidence, we note that both Officer Valdez and Deputy Flores denied that there was any indication that appellant and the complainant had engaged in "mutual combat." Valdez noted that the complainant had no bruising on his knuckles and the jury was shown a photograph of the top of the complainant's hands, which showed no redness or other injury. Gonzalez testified that the complainant did not appear aggressive, and she never saw him hit appellant or yell at her.

Further, according to Officer Valdez's testimony, appellant admitted that she had "grabbed [the complainant] by the collar of his shirt and pulled him . . . back into the [hotel] room" as he was leaving. At the same time, Valdez noted that appellant never said that the complainant had touched her. Additionally, there was no evidence of appellant's state of mind or observable manifestations of her state of mind that suggests a belief that she was acting in self-defense.

As for appellant's bruise, the undisputed evidence shows that it was not a fresh injury. Officer Valdez noted that the bruise between appellant's eye and her cheekbone was visible, but it "looked old." Valdez explained that "[t]he coloring of the bruise was faint," and [t]here was no redness" around it. Further, the photographs admitted into evidence at trial do not show swelling or obvious discoloration around appellant's eye.

Here, the evidence that the complainant was not acting aggressively toward appellant, the apparent freshness of the complainant's injuries as compared to the older appearance of appellant's bruise, and appellant's admission to Officer Valdez that she pulled appellant back into the hotel room as he was trying to leave do not support a reasonable inference that appellant had a reasonable belief that force would be "immediately necessary" to protect herself against the complainant's "use or attempted use of unlawful force." See Tex. Penal Code Ann. § 9.31(a).

Finally, as to the argument of counsel, appellant's trial counsel did not raise the issue of self-defense in closing argument. The State, in its closing, noted that the jury had not been instructed about self-defense, and "[s]elf-defense [wa]s not an issue in this case." Defense counsel's argument preceded the State's argument, though, so the State's comment was accurate as to whether self-defense was a contested issue in the case.

Based on our review of the jury charge, the state of the evidence, and the arguments of counsel, we hold that the trial court's error in denying appellant's requested self-defense instruction, if any, was harmless. See Alcoser, 663 S.W.3d at 165.

We overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.


Summaries of

Kassymkhan v. State

Court of Appeals of Texas, First District
Jul 2, 2024
No. 01-23-00299-CR (Tex. App. Jul. 2, 2024)
Case details for

Kassymkhan v. State

Case Details

Full title:AIZHAN KASSYMKHAN, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, First District

Date published: Jul 2, 2024

Citations

No. 01-23-00299-CR (Tex. App. Jul. 2, 2024)