Rice v. State

Full title: AARON LEE RICE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Sep 16, 2011

Nos. 05-08-00605-CR, 05-08-00606-CR (Tex. App. Sep. 16, 2011)

Opinion

Nos. 05-08-00605-CR, 05-08-00606-CR

Opinion Filed September 16, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 366-82003-05 and 366-82004-05.

Before Chief Justice WRIGHT and Justices RICHTER and LANG.

OPINION ON REMAND

Opinion By Justice RICHTER.

A jury convicted Aaron Rice of two counts of aggravated assault with a deadly weapon and sentenced him to five years' imprisonment on each charge. The sentences were suspended and appellant was placed on community supervision. In his original brief on appeal, appellant asserted the trial court lacked jurisdiction to hear the case because aggravated assault with a deadly weapon is in pari materia with reckless driving, the trial court erred in failing to instruct the jury on the lesser-included offenses of reckless driving and attempted aggravated assault and the affirmative defense of renunciation, and the trial court erred by allowing improper jury argument. On original submission, we concluded the trial court had jurisdiction and erred in failing to instruct the jury on the lesser-included offense of reckless driving. Because we concluded the error caused appellant harm, we reversed and remanded for further proceedings. The State filed a petition for discretionary review in the Texas Court of Criminal Appeals. The Court reversed our judgment on the jury charge issue and remanded the case to this Court for consideration of appellant's remaining issues. See Rice v. State, 333 S.W.3d 140, 148 (Tex. Crim. App. 2011). Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990). Appellant filed a supplemental brief. The State filed neither a waiver nor a brief. Having considered appellant's remaining issues from original submission, for the reasons that follow, we affirm the trial court's judgments.

Attempted Aggravated Assault

In his first remaining issue, appellant contends the trial court erred by failing to instruct the jury on the lesser-included offense of attempted aggravated assault. We disagree. 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, or if it differs from the offense charged only in that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (West 2006). This inquiry is a question of law. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). A trial court must submit a charge on a lesser-included offense if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record which would permit a jury to rationally find that if the defendant is guilty at all, he is guilty only of the lesser-included offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative" to the charged offense. Hall, 225 S.W.3d at 536. Here, the first prong of the analysis is satisfied because attempted aggravated assault is within the proof necessary to establish aggravated assault. See Tex. Code Crim. Proc. Ann. art. 37.04(4) (West 2006) (attempt to commit the offense charged is lesser-included offense). Next, we consider whether there is "some evidence in the record which would permit a jury to rationally find that, if [appellant] is guilty, he is guilty only of the lesser-included offense." Rice, 333 S.W.3d at 145 (citing Guzman, 188 S.W.3d at 188-89). The charging instruments alleged appellant committed aggravated assault by "intentionally and knowingly threaten[ing] [complainants Kenneth Kitchens and Lisa Gensler] with imminent bodily injury and . . . did use and exhibit a deadly weapon, to wit: a motor vehicle, that in the manner and means of its intended use was capable of causing death and serious bodily injury during the commission of the assault."¹ An "attempt" requires a "specific intent to commit an offense" and "an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." See Tex. Penal Code Ann. § 15.01(a) (West 2011). At trial, appellant testified that he lost his temper when Kitchens made a "gang sign" at him, so he drove around the parking lot to look for Kitchens. Appellant admitted he thought about running over Kitchens and Gensler when he first got in the car, but claimed he was only looking for them when he drove through the parking lot. Appellant maintained he never actually saw Kitchens and Gensler, and he was not trying to hit them. According to appellant, as he was driving around, he thought "this is stupid" and decided to go home. Appellant's testimony does not establish that he attempted to commit aggravated assault. A charge on a lesser-included offense is not necessary if the defendant simply denied commission of the offense. See Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992). The State's evidence showed appellant "gunned" his engine and drove at Kitchens and Gensler, nearly hitting them and causing other pedestrians and drivers in the parking lot to take evasive action. Gensler testified that appellant's truck came so close that she thought she was going to die. On these facts, a jury could not rationally find that if guilty, appellant could only be guilty of an attempted aggravated assault. Appellant's first remaining issue is overruled.

Renunciation

In his second remaining issue, appellant asserts the trial court erred in denying a renunciation instruction at the penalty phase of trial. Although appellant requested the instruction at the guilt/innocence phase of trial, there was no such request during the punishment phase. Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See id; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If the alleged error is the omission of a defensive issue, the defendant must show he timely requested the issue or objected to its omission because the trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). Renunciation is an affirmative defense to a prosecution for an attempt offense. Tex. Penal Code Ann. § 15.04(a) (West 2011). Appellant was not charged with an attempt offense under section 15.01; he was charged with aggravated assault. Indeed, when appellant requested the instruction at the guilt/innocence phase of trial, he admitted the instruction was only applicable in conjunction with his requested instruction on attempted aggravated assault. Because the renunciation defense was not applicable to the case, the trial court did not err by failing to give the instruction even if appellant had requested it. See Westbrook, 29 S.W.3d at 122(renunciation instruction under penal code §§ 15.04(b) not warranted where defendant was not prosecuted for conspiracy to commit or solicitation of murder). Appellant's second remaining issue is resolved against him.

Improper Jury Argument

In his final issue, appellant asserts the trial court erred in allowing inflammatory argument during the punishment phase of trial. When the prosecutor made the complained-of argument, appellant objected that the argument was "outside the record." The trial judge, however, did not rule on the objection. Instead, the judge stated "[t]he jury will remember what the evidence was." It is well-established that an objection to argument must be pressed to the point of procuring a ruling or the alleged error is waived on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App.[Panel Op.] 1979). In this instance, the trial judge's response is not a ruling on the objection and is insufficient to preserve error. See DeRusse, 579 S.W.2d at 235; see also Mayberry v. State, 532 S.W.2d 80, 84 (Tex. Crim. App. 1976) (op. on reh'g) ("[j]ury will recall the evidence" does not preserve error); Nichols v. State, 504 S.W.2d 462, 464-65 (Tex. Crim. App. 1974) (same). In addition to the absence of a ruling on the objection, appellant's argument on appeal does not comport with the objection he asserted at trial. Consequently, appellant has forfeited the right to complain about the jury argument on appeal. See Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding trial objection must comport with issue raised on appeal). Appellant's final issue is overruled. Having resolved all of appellant's remaining issues against him, we affirm the trial court's judgments.

1 The factual and procedural background of this case are fully discussed in the prior opinions of this Court and the court of criminal appeals. We do not repeat them here.