Summary
holding that a jury was proper in rationally rejecting a husband's self-defense claim as he could not reasonably have believed that hitting his wife was necessary to protect himself against his wife's use or attempted use of force
Summary of this case from Wise v. Peterson (In re Peterson)Opinion
No. 05-03-01447-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA02-23018-L. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Michael Edward Schoenfeld appeals his conviction for assault. After the jury found appellant guilty, the trial court fined appellant $300. In two issues, appellant contends (1) the trial court erred by instructing the jury on a Class C misdemeanor assault as a lesser-included offense of Class A misdemeanor assault, and (2) that the evidence is factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by instructing the jury that it could convict appellant of a Class C assault as a lesser-included offense of Class A assault because (1) it is not a lesser-included offense, and (2) there was no evidence in the record that would permit a rational jury to find that if appellant was guilty, he was guilty of only the lesser offense. We disagree. A defendant is entitled to a lesser-included offense instruction 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 that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. Westbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). If evidence from any source raises the issue of a lesser-included offense, an instruction on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). Evidence may indicate a defendant is guilty of only the lesser offense if (1) there is evidence which refutes or negates evidence establishing the greater offense, or (2) the evidence presented is subject to different interpretations and one of those interpretations must negate or rebut an element of the greater offense. See id. at 391-92. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Westbrook, 29 S.W.3d at 113. An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Here, the information alleged that appellant intentionally, knowingly, and recklessly caused bodily injury to Karla Schoenfeld, his wife, by striking her head and arm with his hand. A person commits a Class A assault if he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Pen. Code Ann. § 22.01 (a)(1), (b) (Vernon Supp. 2004-05). A person commits a Class C assault if he 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. Tex. Pen. Code Ann. § 22.01 (a)(3), (c) (Vernon Supp. 2004-05). The gravamen of assault is the injury inflicted, and a subsection (a)(3) assault is proved by less injury than a subsection (a)(1) assault. Reed v. State, 117 S.W.3d 260, 267 (Tex.Crim.App. 2003) (Johnson, J., concurring). Thus, a subsection (a)(3) assault is a lesser-included offense of a subsection (a)(1) assault. Tex. Code Crim. Proc. Ann. art. 37.09(2); Reed, 117 S.W.3d at 267. We recognize that subsection (a)(3) contains language describing the type of physical contact necessary for criminality that is not present in subsection (a)(1), i.e., when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. This additional language does not, however, require additional proof. The obvious intent of this language is to prevent innocent contact with another person from incurring criminal liability. Nevertheless, contact that is offensive or provocative is necessarily included within contact that results in bodily injury. Because proving appellant assaulted his wife under subsection (a)(3) is proved by less than all the facts required to prove appellant assaulted his wife under subsection (a) (1), specifically physical injury, the trial court did not err by instructing the jury that it could convict appellant of a Class C assault as a lesser-included offense of Class A assault. That does not, however, end our inquiry. For the instruction to be proper, the record must contain some evidence that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. After reviewing the record, we conclude there is such evidence. The record shows that during trial, Karla testified that she was hitting appellant and "he put up his arm to try to stop me. And he did hit me on my arm and grazed my cheek." According to Karla, when appellant's fingers grazed her, it stung her cheek. This testimony could be interpreted to mean that appellant intentionally or knowingly touched her arm to block her from hitting appellant, and in doing so, his fingers "grazed" her, stinging her cheek. A rational jury could determine from this testimony that appellant's contact with Karla was a "mere offensive touching" and did not raise to the level of "bodily injury." Because the record contains some evidence that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser-included offense, the trial court properly instructed the jury on a Class C misdemeanor assault as a lesser-included offense of Class A misdemeanor assault. We overrule appellant's first issue. In his second issue, appellant contends the evidence is factually insufficient to support his conviction. In particular, appellant argues the evidence was factually insufficient to support the jury's rejection of appellant's claim of self-defense. Again, we disagree. The State has the burden of persuasion when self-defense is raised. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). The State meets this burden by proving its case beyond a reasonable doubt. Id. at 913. When a defendant challenges the factual sufficiency of the jury's rejection of self-defense, we review all the evidence in a neutral light. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. See id. 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. Tex. Pen. Code Ann. § 9.31 (Vernon Supp. 2004-05). According to appellant, the jury was not rational in rejecting his claim of self-defense because appellant's apparent injury and Karla's lack of injury supports the self-defense claim "as does the majority of evidence presented at trial." We disagree. Officer Ronald Wilcots testified that he responded to a 911 call reporting that a woman was being hit by a man in the parking lot of a convenience store. Shortly after Wilcots arrived at the store, he spoke with Karla. Karla told Wilcots that appellant was "being stupid" and that he had "punched her in the face and punched her in the arm" She complained that her jaw was hurting. According to Wilcots, her cheek was reddened. When Wilcots asked appellant what had happened, appellant admitted that he hit Karla, but claimed he did so because Karla had hit and bit him. In her statement, Karla claimed appellant had been angry with her "all day" and had been calling her a "slut and tramp for hours all the way from Shreveport." She also stated that appellant had "assaulted [her] in the past and probably will again . . . [she was] afraid he [would] come home and kill [her]." Appellant testified that Karla had been drinking all day. When they arrived back from the bus trip to Shreveport, he was driving and decided to go to the convenience store for a drink. Karla was hitting him and grabbing the steering wheel. Just as they arrived at the store, he hit her to make her stop, and she bit him. He parked and got out of the car. After he was outside the car, he said to her, "Look what you did, you bit me." Karla asked to see appellant's hand, and when he "stuck his hand in the car to lean in and show her, . . . she hit me in the ear and that's when I hit her back." Even assuming the jury believed appellant's version of the evidence, the jury could have rationally rejected appellant's claim of self-defense. The jury was free to determine that appellant could not have reasonably believed hitting Karla while he was standing outside the car was immediately necessary to protect himself against Karla's use or attempted use of force. The jury could have found that a reasonable man in appellant's position would just walk away and that hitting her after she hit him in the ear was not an act of self-defense but rather an act of retaliation. Further, although Karla testified at trial that when appellant was outside the car, he merely put his arm up to try and stop her from hitting him and slung her hand away, the jury was not required to believe this version of events, especially when Karla had admitted that she did not want appellant to be convicted and had sought to have the charges dismissed. After a neutral review of the evidence, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. We overrule appellant's second issue.
"Bodily injury" means physical pain, illness, or any impairment of physical condition. See Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2004-05). This definition is purposefully broad, encompassing even relatively minor physical contacts so long as they constitute more than mere offensive touching. Salley v. State, 25 S.W.3d 878, 881 (Tex.App.-Houston [14th Dist.] 2000, no pet.).