No. 05-04-01039-CR
Opinion Filed November 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00634-UT. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
A jury convicted Robert Carl Simpson of aggravated assault, found both enhancement paragraphs true, and assessed a twenty-five year sentence. In one issue, appellant contends the trial court committed fundamental error in its self defense jury charge. We affirm the trial court's judgment.
BACKGROUND
Appellant and the complainant were long time friends. According to the complainant, he and appellant had a confrontation over $100 the complainant had given appellant to buy food that appellant never bought. According to appellant, he, the complainant, the complainant's wife, and Jasonja English (the complainant's companion at the scene) all "smoked crack," and the confrontation was over "appellant's cut from a "$100 drug transaction." Appellant maintained that the complainant tossed his automobile keys to English and told her to "pop the trunk"-a street phrase used when the speaker goes for a weapon in his trunk. Appellant's fear led him to stab the complainant. THE JURY CHARGE
In his sole point of error, appellant contends the trial court incorrectly submitted the self-defense charge to the jury. Specifically, he argues that the portion of the trial court's charge which limited appellant's right to self-defense improperly referred to the complainant as the "victim." Appellant concedes he did not object to the charge at trial, but he contends the error is so egregious that this Court should reverse the trial and remand this cause for new trial. The State responds that because appellant claimed self-defense, he had to admit to the "offense." Once appellant "admitted the offense, [the complainant] became a victim." Therefore the trial court could not err in including the word "victim" in the charge. The State also argues the trial court did not err because the word "victim" does not appear in the application paragraph relating to the "primary offense." Consequently, the jury was "not authorized to reach" this paragraph until they had determined "self-defense was not a valid claim." Additionally, the State maintains the complained-of paragraph tracks the statute, and appellant fails to complain about the only other time the term appears in the record. The State argues that, in any event, the term "victim" could not have affected the outcome of the trial. 1. Standard of Review
When reviewing jury charge error, we must first determine if error actually exists in the jury charge and, (2) if we find error, did it harm appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If appellant did not object to the jury charge at trial, he must show he suffered actual, egregious harm. See id. at 171. To establish egregious harm, it is not essential to show direct evidence of harm. Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). We must examine the degree of harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171). We review the record to determine if a defendant suffered actual, not theoretical, harm. Morris v. State, 67 S.W.3d 257, 261 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994)). For charge error to result in egregious harm, it must affect "`the very basis of the case," deprive the defendant of a valuable right,' or `vitally affect a defensive theory.'" Ngo v. State, No. PD-0504-04, 2005 WL 600353, at *6, (Tex.Crim.App. Mar. 16, 2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996)). 2. Applicable Law
Texas law expressly provides that the judge shall not express "any opinion as to the weight of the evidence" in a jury charge. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005); Casey v. State, 160 S.W.3d 218 (Tex.App.-Austin 2005, pet. granted). A jury charge that assumes the truth of a controverted issue comments on the weight of the evidence and is erroneous. See Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986). To determine whether a jury charge comments on the weight of the evidence, we review the charge as a whole. See Russell v. State, 749 S.W.2d 77, 79 (Tex.Crim.App. 1988). It is the application paragraph that authorizes the jury to act. See Sparks v. State, No. 01-03-00761-CR, 2005 WL 174483, at *6 (Tex.App.-Houston [1st Dist.] Jan. 27, 2005, no pet.). A "victim is the person who is the object of a crime." Black's Law Dictionary 1405 (5th Ed. 1979). An application paragraph that refers to the complainant as a "victim," effectively instructs the jury that appellant did not act in self-defense. See Talkington v. State, 682 S.W.2d 674, 675 (Tex.App.-Eastland 1984, pet. ref'd). 3. Application of Law to Facts
We disagree with the State that "victim" does not appear in an application paragraph. The erroneous term appeared in the paragraph authorizing the jury to act-the application paragraph. We also observe that the jury charge duplicates this entire application language. Consequently, the trial court used the word "victim" twice, not once, in its jury charge. We presume the jury understood and followed the charge. To agree with the State's argument that the jury had already found appellant guilty by the time it reached the complained-of paragraph would enforce a belief that any reference to the "entire jury charge" is fiction. So, we begin by determining whether the complained-of jury charge language constituted error. The complained-of jury charge related to the only contested issue at trial. See Hutch, 922 S.W.2d at 173. All of the testimony showed that appellant stabbed the complainant. The only question for the jury was whether appellant acted in self-defense. The complained-of error occurred in the application paragraph for self-defense. The jury charge read as follows: Now, therefore, bearing in mind the foregoing definitions and instructions
(1) if you believe from the evidence beyond a reasonable doubt, that . . . [appellant] intentionally, knowingly or recklessly caused bodily injury to . . ., hereinafter called complainant, by stabbing or cutting complainant with a knife, and said [appellant] did use and exhibit a deadly weapon to-wit: a knife, during the commission of the assault, as charged in the indictment;
OR (2) if you believe from the evidence beyond a reasonable doubt, that . . . [appellant], intentionally, knowingly or recklessly caused serious bodily injury to . . ., hereinafter called complainant, by stabbing or cutting complainant with a knife, as charged in the indictment, but you further find from the evidence, or have a reasonable doubt thereof, that [appellant] reasonably believed, as viewed from his standpoint alone, that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by the said [complainant] and that at such time a reasonable person in the [appellant's] situation would not have retreated, you will acquit [appellant] and say by your verdict "not guilty."
You are further instructed, however, that if you believe from the evidence beyond a reasonable doubt that at the time and place in question the victim was not using or attempting to use unlawful force on [appellant], and that [appellant] did not reasonably believe that deadly force when and to the degree used, if it was, was immediately necessary to protect himself against the use or attempted use of unlawful deadly force, either real or apparent, as viewed from his standpoint alone, or that a reasonable person in [appellant's] position at that time would have retreated, then you will find against [appellant] on his plea of self-defense.
(Emphasis added). The word "victim" cast appellant as the aggressor in the complained-of paragraph. In doing so, the trial court effectively assumed the answer to the only controverted issue. In assuming the answer, the trial court commented on the weight of the evidence-an act expressly prohibited bythe Code of Criminal Procedure-and effectively instructed the jury that appellant did not act in self-defense. Consequently, we conclude the trial court erred in including the word "victim" in the complained-of paragraph. WAS APPELLANT EGREGIOUSLY HARMED?
Nowhere in the record before this Court can we find any evidence of whether appellant or the State approved or objected to the jury charge given at the conclusion of the guilt/innocence portion of trial. Appellant, however, in his brief, states that he did not object to the charge and argues that the trial court's including "victim" in the charge "caused [a]ppellant egregious harm." 1. The Indictment
To determine if appellant sustained egregious harm we must examine the entire record, beginning with the indictment. The indictment charged appellant with (1) causing bodily injury to the complainant by stabbing and cutting him with a knife and using "and exhibit[ing] a deadly weapon: to wit, a knife" and (2) causing serious bodily injury to the complaint by stabbing and cutting him "with a knife, a deadly weapon." The indictment also contained two enhancement paragraphs-a possession of cocaine conviction in 1997 and a murder conviction in 1976. The indictment presented the pending charge in a neutral manner. 2. Voir Dire
During voir dire, the trial court explained punishment range, beginning with a two-year sentence up to ninety-nine years or life. The trial court neither discussed the two enhancement paragraphs that could have increased the minimum punishment nor self-defense. The State in its voir dire explained, in response to a juror's inquiry, that the jury's verdict would have to be unanimous. When the State asked if any prospective juror could convict on the testimony of one witness, a juror asked the State whether the "victim" would testify. The State demurred by saying it could not discuss actual evidence during voir dire. But, the trial court intervened by commenting that the "victim wouldn't testify" in a murder case. Later, the State asked jurors three different times if they or someone they knew had been the "victim" of an offense. Appellant's attorney used the word "victim" four different times when asking prospective jurors if they or any one they knew had been the "victim" of a crime. When appellant's attorney apparently did not understand one prospective juror's answer and attempted to clarify her answer, the trial court intervened and asked if she had been arrested for credit card abuse. The prospective juror answered, "No. Victim of." And the trial court repeated, "Victim." The trial court, the State, appellant's attorney, and even jurors continually used the word "victim" during voir dire. This use of the word "victim" during voir dire likely established in the minds of prospective jurors that the injured party was the "victim." 3. The Evidence
a. The Complainant The complainant testified that he and his wife had taken English into their home to help her. Because English was entering a shelter after this particular weekend, the complainant took her to retrieve clothing she had left in another neighborhood. English was hungry and wanted get something to eat at Popeye's Chicken. Because the Popeye's parking lot was full, the complainant parked his vehicle around the corner. After parking the car, they saw appellant in a nearby vacant lot. When appellant called out to them, English urged the complainant to ignore appellant. The third time appellant called out to him, the complainant walked over to appellant and asked what appellant wanted. Appellant asked the complainant for money. The complainant had given appellant money over the last ten or twelve years. However, this time he refused appellant's request because appellant had threatened to kill him. About three weeks before the date in question, the complainant had given appellant $100 to buy "beer, alcohol, food, and stuff," but appellant had come back with nothing. Consequently, the complainant "pretty much cut [appellant] off." This was why, in the complainant's opinion, appellant had threatened to kill him. As the complainant walked away, appellant grabbed the complainant by his throat and began pushing him. The appellant continued to push and threaten the complainant. They were at the rear of the complainant's vehicle. Appellant was facing the complainant and began to choke him "even harder." The complainant pushed appellant away and then the complainant felt a sharp pain in his back. In response to an officer's question about whether there were guns in his car, the complainant responded that he had a shotgun in his trunk. The complainant explained that he had bought the shotgun for his wife's protection when he traveled on business. A few day earlier, the complainant's wife had asked him to get rid of the shotgun. The complainant put the shotgun in his vehicle's trunk intending to dispose of it. The State asked the complainant if there was anyway that appellant could have known about the shotgun in his trunk. The complainant responded, "No, sir." The complainant explained that English had the keys to the vehicle and she gave them to the officers, who opened the trunk and found the shotgun. The complainant denied that he had "ever been filed on" for any criminal offense "as far as having a shotgun in your trunk, . . . threatening someone with a shotgun, . . . or pulling out a shotgun and shooting it in public." On cross-examination, the complainant admitted that he was charged with terroristic threat in 1993. However, he explained that a woman was stalking him and threatened to kill his wife. In turn, he told this woman that if she came to his house, he "would protect himself and protect his wife." At the time he owned a shotgun, a Glock, and a Beretta. b. Paul Campopiano
Campopiano, a Dallas Police Officer, testified that he and two other officers answered a "call" to go the location of the offense. When Campopiano arrived at the scene, appellant was already under arrest and the complainant volunteered that he had a shotgun in his vehicle. English had the vehicle's keys and gave them to Campopiano. He opened the trunk and found the shotgun. c. Paul Bescherer
Bescherer, a Dallas Police Officer, was on patrol when he recieved a "call" regarding a "cutting." He was the first officer on the scene. Appellant was standing next to the complainant's car. Appellant threw his knife at Bescherer's feet and said, "I stabbed him in the back." Appellant told the officer that the he and the complainant had been "at it . . . all day long," and the complainant had a shotgun in his car. Because appellant brought up the shotgun in the vehicle, Bescherer asked Campopiano to find out about the shotgun. Bescherer took appellant's statement that "I would rather be judged by [twelve] then carried by [six]" to mean appellant stabbed the complainant to avoid being killed. Bescherer also interpreted the interaction between appellant and the complainant to involve English, drugs, and money. d. Appellant
Appellant testified that he first saw the complainant on the day in question when the complainant picked up English in the liquor store parking lot. He had known English most of her life and the complainant for about ten years. They all smoked crack together. The complainant approached appellant and told him he wanted to get to the bottom of the "deal." The "incident" dealt with the $100 bill the complainant had given appellant to buy "crack." When appellant "scored" for people, he always made money off the "deal." The complainant asked appellant to buy three "twentys," but appellant brought him three "dimes" instead and kept the thirty dollars change. Appellant understood that English told the complainant that "when [the complainant] found out what the way that [appellant] did it, [appellant] would probably have to kill him." The complainant put his hand up in appellant's face and appellant hit the complainant's hand "out of [appellant's] face." The complainant then turned, threw his keys at English, and said, "pop my trunk." Because the complainant carried weapons with him all the time, appellant took the statement to mean that she should open the trunk so he could get a weapon out. English did not pop the trunk. Instead, she said she wanted nothing to do with "it." She returned the keys to the complainant and the complainant hit the button. Appellant immediately closed the trunk and the complainant popped the trunk again. The trunk never popped up, but it opened each time and appellant closed it each time. Appellant told the complainant, "I'm not letting you get anything out of there." The complainant put his hand in his pocket and told appellant, "I don't have to go in the trunk to get. I got another one up here." Appellant put his hand in his pocket and pulled out his knife. The complainant moved toward the vehicle's back door, but turned and popped the trunk again. This time the complainant pushed appellant and raised the trunk's lid. Appellant saw the grip of the gun in the trunk and immediately hit the complainant's hand and stuck him with the pocket knife. The complainant told English to call 911 and threw her the keys. e. Jasonja English
English testified that she used to live in the neighborhood in question. Everybody "hangs out . . . [and] has fun." She acknowledged that drugs were available in the area and the complainant smoked "crack." She had smoked "crack" with the complainant, and he had bought her drugs. Additionally, she had served time for "forgery" and "possession." English confirmed the complainant's testimony that they had gone to pick up her clothes and stopped at the "Lemmon store" to get her something to eat. Beause she "couldn't go in the Lemmon store," she went over to tell them what she wanted to eat. While she was talking to Melvin, the complainant walked over to appellant. English did not know if appellant had called to the complainant, but she could see appellant was getting upset. So, she told the complainant "to forget the clothes, forget the food, [l]et's just go." The complainant started toward his car, but every time he moved, appellant would move. English neither saw appellant stab the complainant nor the complainant open the trunk. She had the vehicle's keys "from the top" when she went to Melvin's to get her clothes. After reviewing all the testimony during the guilt-innocence stage of trial, we find only one reference to the word "victim." The State, in questioning the doctor who testified to the nature of the complainant's injuries, asked about appellant's injuries. He corrected himself and substituted the word "victim." 4. Closing Argument
Neither attorney focused on who was the aggressor or the victim. The State argued the witnesses' credibility. Appellant's argument focused on how he could have know there was a shotgun in the complainant's trunk. Having reviewed the jury charge in light of the record as a whole, we conclude appellant did not suffer egregious harm by the inclusion of the term "victim" in the jury charge. Accordingly, we resolve appellant's issue against him. We affirm the trial court's judgment.