Opinion
No. 05-22-00205-CR
04-27-2023
Daniel Joseph RUBIS, Appellant v. The STATE of Texas, Appellee
Libby Joy Lange, Assistant District Attorney, McKinney, Greg A. Willis, Collin County District Attorney, McKinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, for Appellee. Niles S. Illich, Scott H. Palmer, P.C, Addison, Patrick J. McLain, Law Office of Patrick J McLain, PLLC, Dallas, for Appellant. Daniel Joseph Rubis, Pro Se.
Libby Joy Lange, Assistant District Attorney, McKinney, Greg A. Willis, Collin County District Attorney, McKinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, for Appellee.
Niles S. Illich, Scott H. Palmer, P.C, Addison, Patrick J. McLain, Law Office of Patrick J McLain, PLLC, Dallas, for Appellant.
Daniel Joseph Rubis, Pro Se.
Before Justices Reichek, Nowell, and Garcia
OPINION
Opinion by Justice Reichek
Daniel Joseph Rubis appeals his conviction for the offense of continuous violence against the family (CVAF). In two issues, appellant contends the trial court erred in denying his motion for new trial and in refusing to admit cellular phone records printed from his phone service provider's website. We affirm the trial court's judgment.
Background
Appellant was indicted for CVAF based on five incidents involving his then wife, Cassy Rubis. The incidents occurred between February 18, 2019 and February 2, 2020. At trial, Cassy testified as to each incident, stating appellant caused her physical pain and injury by grabbing her, throwing her into furniture, dragging her, and striking her with his hand. Appellant denied assaulting Cassy and, as to one incident, stated he was acting in self-defense.
The court's charge to the jury contained the following relevant instructions:
Our law provides that a person commits the offense of Continuous Violence Against the Family if, during a period that is 12 months or less, [the defendant] engages in conduct that constitutes an assault, two (2) or more times against another person, who is a member of the defendant's household, or a person with whom the defendant has or has had a dating relationship.
"Assault" means to intentionally, knowingly, or recklessly cause bodily injury to another, including the person's spouse.
...
A person acts intentionally, or with intent, with respect to the result of his conduct when it is his conscious objective or desire to cause the result.
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless with respect to the result of his conduct or to circumstances surrounding his conduct when he is aware of, but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, as viewed from the actor's standpoint.
After hearing the evidence, the jury found appellant guilty and assessed punishment at two years in prison. Appellant timely brought this appeal.
Analysis
I. Culpable Mental State Instruction
In his first issue, appellant contends the trial court erred in refusing to grant him a new trial based on allegedly erroneous instructions in the jury charge. Specifically, appellant challenges the instructions concerning the culpable mental states required for the offense. Appellant argues the language used to define CVAF in section 25.11(a) of the Texas Penal Code makes the offense a "nature of the conduct" offense rather than a "result of the conduct" offense. Accordingly, appellant contends the trial court erred in instructing the jury that the required culpable mental states applied to the result of his conduct. We disagree.
The Texas Penal Code prescribes four culpable mental state—intentionally, knowingly, recklessly, and criminally negligent—and two possible conduct elements—nature of the conduct and result of the conduct. TEX. PENAL CODE ANN. § 6.03. When specific acts are criminalized because of their nature, the culpable mental state must be applied to committing the act itself. Price v. State , 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). Unspecified conduct that is criminalized because of its result requires culpability as to that result. Id. A trial court errs if it fails to limit the language of the applicable culpable mental state to the appropriate conduct element in the jury charge. Id.
Appellant asserts that the language of the CVAF statute requires only that the accused "engage in conduct" and does not specify a particular result. See TEX. PENAL CODE ANN. § 25.11(a). When determining which conduct element should be included in the culpable mental state instruction, however, we look at the "gravamen" or substance of the offense. Price , 457 S.W.3d at 441. The substance of the offense is "that part of an accusation that weighs most heavily against the accused." Id.
Here, although CVAF is a distinct offense, it is defined as the repeated commission of a constituent offense against a certain class of persons. See TEX. PENAL CODE ANN. §§ 25.11(a) ; 22.01(a)(1). The constituent offense—assault causing bodily injury—does not prohibit specific conduct, but instead criminalizes the result of the defendant's actions. Id. § 22.01(a)(1). Neither assault causing bodily injury nor, in turn, CVAF can occur without bodily injury resulting from the defendant's conduct. See id. §§ 22.01(a)(1); 25.11(a); see also Price , 457 S.W.3d at 442. Because the gravamen of CVAF is repeated injury resulting from unspecified conduct by the defendant, the trial court correctly instructed the jury to apply the culpable mental states to the result of appellant's conduct rather than its nature. See Price , 457 S.W.3d at 442 ; Costilla v. State , 650 S.W.3d 201, 222 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
A similar analysis has been used by other Texas courts to address the culpability requirement for the offense of continuous sexual abuse of a child (CSAC). See Williams v. State , No. 02-20-00104-CR, 2021 WL 5227167, at *3 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem. op., not designated for publication). As with CVAF, CSAC is defined in terms of the repeated commission of other constituent offenses. See TEX. PENAL CODE ANN. § 21.02. In Lane v. State , 357 S.W.3d 770 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd), the court reasoned that because the actus reus of CSAC is the commission of offenses already requiring mental states, the jury should be instructed on the culpable mental states required for the constituent offenses. Id. at 776. Likewise, the actus reus of CVAF is the commission of an offense that, by its own terms, is a "result of conduct" offense, and the jury should be instructed accordingly.
The court's charge in this case properly instructed the jury on the culpable mental states required for assault causing bodily injury, the constituent offense for CVAF. This is all that was required with respect to the conduct at issue. Id. We resolve appellant's first issue against him.
II. Phone Record Authentication
In his second issue, appellant contends the trial court erred in refusing to admit a cellular phone "call log" that he testified he printed from his service provider's website. Appellant argues the log demonstrates his ex-wife was not truthful about the number of times she attempted to contact him in the months leading up to his indictment. We review a trial court's decision on the admission or exclusion of evidence under the deferential abuse of discretion standard. Tienda v. State , 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). If the trial court's ruling is "within the zone of reasonable disagreement," a reviewing court should not interfere. Id.
The evidence submitted by appellant consisted of thirty-two pages of cellular phone records that he testified he downloaded and printed from his service provider's website. The document contains no information about the source of the data, or the website from which it was obtained, other than having the service provider's logo in the upper left-hand corner of each page. Printed on the upper right-hand corner of each page is the billing period and account number. The body of the document contains appellant's name, phone number, type of phone, and a list of "talk activity" by date and time. The page numbers of the exhibit indicate that multiple pages are missing, and appellant testified he submitted only the pages on which Cassy's number appeared. When questioned about how the call log was maintained, appellant stated he did not work for the service provider, and he did not know how the company's records were kept.
The State objected to admission of the call log on the grounds of authentication and impermissible hearsay. During discussion with counsel, the trial court opined that appellant could not authenticate the document because he did not know how the service provider's phone records were created or kept. The court then stated it would not admit the exhibit for all purposes, but would admit it for record purposes "as it relates to the impeachment of the witness." The court followed this by stating it would allow counsel to "use it" and would permit "general questions about it."
Assuming without deciding the trial court's ruling was erroneous, appellant's sole assertion of harm is his alleged inability to use the call log to challenge Cassy's credibility. Appellant ignores the fact that the trial court's ruling allowed him to use the exhibit generally for impeachment purposes. During cross-examination, appellant's counsel asked Cassy if she had "initiated dozens of calls" to appellant during the time period covered by the exhibit. When Cassy replied that she had not, appellant's counsel simply passed the witness. Counsel could have referenced the exhibit in an attempt to discredit Cassy but chose not to do so. That the exhibit was not used for impeachment purposes was the result of an apparent tactical decision, therefore, and not the trial court's ruling. See TEX. R. EVID. 103(a) (party may claim error in exclusion of evidence only if ruling affects substantial right).
We resolve appellant's second issue against him and affirm the trial court's judgment.