Taylor v. State

Full title: DONALD RAY TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Oct 29, 2003

No. 05-01-00197-CR (Tex. App. Oct. 29, 2003)

Opinion

No. 05-01-00197-CR

Opinion Filed October 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-32618-MI. AFFIRM

Before Justices MOSELEY, RICHTER, and FRANCIS.

OPINION

Opinion By Justice RICHTER.

A jury convicted Donald Ray Taylor of aggravated assault and assessed punishment, enhanced, at twenty-five years imprisonment. In five points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction and asserts charge error. We affirm.

Background

The trial in this case was brief and consisted primarily of the testimony of the complainant, Bryan Sanders, and Irving patrol officer Susan Bitney. Sanders testified he was walking towards a vending machine near the parking lot of a local hotel when he ran into an acquaintance, Antoine McDonald. McDonald walked to his car to get a bottle and took the bottle to appellant's room. McDonald and Sanders then began talking. During their conversation, appellant came out of the room holding a cup. As Sanders turned to look at appellant, appellant threw what appeared to be bleach in Sanders's face. Sanders was blinded and knocked to the ground. Appellant and McDonald punched and kicked Sanders and then "ran away." On cross-examination, Sanders stated he knew McDonald from previous drug transactions. Sanders testified further that he owed McDonald money, but denied the conversation with McDonald was belligerent. Sanders also denied there was any animosity between him and appellant. Bitney testified she interviewed Sanders at the hospital while he was being treated. According to Bitney, Sanders was hysterical, in a lot of pain at the time, and yelling out different names. Bitney believed initially that Sanders had identified McDonald as the assailant, but later was "clear" it was appellant. Appellant did not testify and did not call any witnesses. However, he conveyed a defensive theory through cross-examination and during argument that McDonald, rather than appellant, threw the bleach in Sanders's face, but was not implicated because Sanders feared McDonald. At the charge conference, the State requested an instruction on the law of parties, which the court granted over appellant's objection. The charge thus authorized the jury to convict appellant of aggravated assault either as a principal or a party. The jury returned a general verdict finding appellant guilty "as charged in the indictment."

Sufficiency of the Evidence

In his first two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Specifically, in his first point of error, appellant contends the evidence is factually insufficient to establish his guilt as a principal. In his second point, appellant contends the evidence is legally insufficient to establish his guilt as a party. Because the jury was authorized to convict appellant either as a principal or party and returned a general verdict, we will uphold the verdict if the evidence is sufficient to show guilt under either theory. Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and 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, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we determine whether a neutral review of all the evidence viewed by the fact finder establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In both sufficiency reviews, the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). When appellant challenges both the legal and factual sufficiency of the evidence, we review the legal sufficiency challenge first. Scott v. State, 934 S.W.2d 396, 400 (Tex.App.-Dallas 1996, no pet.). When appellant challenges only the factual sufficiency, we assume the evidence is legally sufficient. Id. In this case, because appellant challenges only the factual sufficiency of the evidence to support his guilt as a principal, we will assume the evidence is legally sufficient under that theory. Id. Because the evidence need only be sufficient under one theory to support the conviction, it is unnecessary for us to address the merits of appellant's complaint that the evidence is legally insufficient to support his guilt as a party. See Patterson v. State, 96 S.W.3d 427, 432 n. 8 (Tex.App.-Austin 2002, pet. granted; pet. ref'd) (by arguing only factual insufficiency, appellant concedes evidence legally sufficient). Accordingly, we overrule appellant's second point of error. We now turn to appellant's complaint in his first point that the evidence is factually insufficient to support his guilt as a principal. In making this argument, appellant relies on Sanders's testimony that there was no animosity between him and appellant and on Bitney's testimony that she originally believed Sanders had identified McDonald as the assailant. Appellant contends that Sanders's testimony that there was no animosity between him and appellant shows appellant lacked any motive to harm Sanders. Appellant also contends that the testimony that Sanders had initially identified McDonald as the assailant shows Sanders was not truthful. We reject appellant's contentions. As appellant himself acknowledges, motive is not a required element in a criminal case and need not be proved to sustain a conviction. Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App. 1982). Moreover, the jury, as fact finder, was the exclusive judge of the witnesses' credibility and the weight to give their testimony. Although we disagree that the record reflects Sanders initially identified McDonald as the assailant, assuming it does, the record is nevertheless replete with testimony that appellant was the assailant. By finding appellant guilty, the jury necessarily found Sanders's identification of appellant as the assailant credible. This was within the jury's prerogative. See Bruno, 922 S.W.2d at 293. Viewing the evidence under the appropriate standard, we conclude the proof of guilt is neither so obviously weak as to undermine confidence in the jury's determination nor greatly outweighed by contrary proof. We overrule appellant's first point of error.

Jury Charge

In his third, fourth, and fifth points of error, appellant asserts charge error. We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If we determine the charge is inadequate, we then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. When error has been properly preserved, we will reverse the conviction upon a showing of "some harm." Id. When error has not been properly preserved, we will reverse only if the error is so egregious and created such harm that appellant was denied a fair and impartial trial. Arline, 721 S.W.2d at 351; Almanza , 686 S.W.2d at 171. We assess the actual degree of harm in light of the charge as a whole, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. In his third point, appellant complains the court erred in failing to define reasonable doubt in the charge at the guilt-innocence phase of trial pursuant to Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991). Although recognizing the court of criminal appeals overruled Geesa in Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000), appellant maintains the court should have defined reasonable doubt in the charge because the assault on Sanders occurred before Paulson issued. Appellant asserts the court's "retroactive" application of Paulson was erroneous. We disagree. The reasonable doubt instruction is procedural in nature. See Geesa, 820 S.W.2d at 163. Procedural rules generally control litigation from their effective date. Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971); Montez v. State, 975 S.W.2d 370, 372 (Tex.App.-Dallas 1998, no pet.). Although appellant's indictment was filed in September 2000, and the offense occurred in June 2000, appellant was not tried until January 2001, three months after Paulson issued. Therefore, the rule announced in Paulson controls in this case. See Cook v. State, 99 S.W.3d 310, 315 (Tex.App.-Eastland 2003, no pet.). Moreover, in Arroyo v. State, 32 S.W.3d 868 (Tex.Crim.App. 2000), the court of criminal appeals applied Paulson to a case tried before Paulson issued, indicating the date of the offense has no bearing on whether Paulson applies. Because Paulson controls, we conclude the court did not err in failing to define reasonable doubt in the charge at the guilt-innocence phase of trial. We overrule appellant's third point of error. In his fourth point, appellant complains the court erred in submitting, over his objection, a charge instruction on the law of parties. Appellant further complains he suffered "some harm" as a result. Assuming without deciding that the court erred in submitting the complained-of instruction, we cannot agree appellant was harmed. We have already concluded the evidence is legally and factually sufficient to show appellant's guilt as a principal. When, as here, the evidence clearly supports appellant's guilt as a principal, any error in charging on the law of parties is harmless. Black v. State, 723 S.W.2d 674, 675 (Tex.Crim.App. 1986). We overrule appellant's fourth point of error. In his fifth and final point, appellant complains about the following instructions in the charge:

A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.

Citing Sneed v. State, 803 S.W.2d 833, 836 (Tex.App.-Dallas 1991, pet. ref'd), appellant asserts that aggravated assault, as charged in this case, is a result of conduct offense. As such, appellant maintains, these instructions were "defective" because they failed to define the culpable mental state in relation to the result caused. See Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994) ("It is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense."). Appellant maintains this "unobjected-to error" resulted in egregious harm, requiring reversal. Again, assuming without deciding, the jury charge was erroneous, we cannot conclude, viewing the record as a whole, appellant was harmed. To begin with, we note the application paragraphs correctly limited the applicable mental states to the appropriate conduct element. We presume the jury followed the instruction in the charge, and appellant has failed to argue or show otherwise. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996). Moreover, from a review of the record, it is clear the contested issue was identity. As stated, appellant conveyed a defensive theory that McDonald, not appellant, actually threw the bleach in Sanders's face, but was not accused because Sanders was afraid of him. We fail to see egregious harm. We overrule appellant's fifth point of error. We affirm the trial court's judgment.