Opinion
Nos. 10-07-00048-CR, 10-07-00049-CR
Opinion delivered and filed May 28, 2008. DO NOT PUBLISH.
Appealed from the 77th District Court, Limestone County, Texas, Trial Court Nos. 11051-A and 11052-A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurring with note)
("Chief Justice Gray concurs in the judgment to the extent that it affirms the conviction and grants counsel's motion to withdraw. A separate opinion will not issue. He notes, however, that the opinion of the majority suffers the same errors in evaluating and ruling on the merits of issues briefed by counsel as does this court's opinion in Villanueva, as well as in Garner which cited and relied on Villanueva, to go into an extensive discussion, analysis, and disposition of the issues discussed by counsel. See Garner v. State, No. 10-05-00218-CR, 2007 Tex. App. LEXIS 4246 (Tex.App.-Waco May 30, 2007, pet. granted) (not designated for publication); Villanueva v. State, 209 S.W.3d 239 (Tex.App.-Waco 2006, no pet.). The purpose of counsel's discussion of issues is so that we can determine that counsel has fulfilled the duty of appointed counsel to diligently examine the record for issues of arguable merit. We do not accomplish this by review, discussion, and ruling on the issues identified by counsel. Thus the discussion and holdings on the issues addressed in the Anders brief in support of the motion to withdraw are unnecessary to our review and therefore dicta.")
MEMORANDUM OPINION
A grand jury presented two indictments against David Tucker for aggravated assault against a public servant arising from Tucker having displayed a handgun as he was about to be escorted away from his girlfriend's home by two sheriff's deputies following a domestic dispute. A jury found Tucker guilty of aggravated assault as charged in cause no. 11051-A (appellate cause no. 10-07-00048-CR) and found him guilty of the lesser-included offense of deadly conduct in cause no. 11052-A (appellate cause no. 10-07-00049-CR). The court sentenced Tucker to ten years and one day in prison for the aggravated assault charge and one year in jail for the deadly conduct charge. Tucker contends in his sole issue in the aggravated assault appeal that the court erred by failing to instruct the jury that the statutory presumption provided by section 22.02(c) of the Penal Code (that a defendant is presumed to have known that the complainant was a public servant if he was wearing a distinctive uniform or badge) is a permissive presumption. Tucker's counsel has filed an Anders brief in the deadly conduct appeal. We will affirm in both cases.
Statutory Presumption
Tucker contends that the court erred by failing to instruct the jury that the statutory presumption provided by section 22.02(c) of the Penal Code is a permissive presumption. "Mandatory presumptions are unconstitutional because they relieve the State of the burden of proving every element of the offense beyond a reasonable doubt." Garrett v. State, 220 S.W.3d 926, 930 (Tex.Crim.App. 2007) (citing Francis v. Franklin, 471 U.S. 307, 317, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 524, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Brown v. State, 122 S.W.3d 794, 799 (Tex.Crim.App. 2003)). Thus, section 2.05(a)(2) of the Penal Code requires the jury to be instructed on the permissive nature of any statutory presumption favorable to the State and how the presumption relates to the State's burden of proof. See TEX. PEN. CODE ANN. § 2.05(a)(2) (Vernon Supp. 2007). Subsection (a)(2) provides:if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.Id. Section 22.02(c) provides, "The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer." Id. § 22.02(c) (Vernon Supp. 2007). Here, the court instructed the jury on this presumption by quoting section 22.02(c) almost verbatim, omitting the references to security officers. But the court erred by failing to include the instructions required by section 2.05(a)(2). See Garrett v. State, 159 S.W.3d 717, 720 (Tex.App.-Fort Worth 2005), aff'd, 220 S.W.3d 926 (Tex.Crim.App. 2007). Because Tucker did not object, we must determine the appropriate harm standard to be applied. Ordinarily, we would apply the "egregious harm" standard of Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App. 1985) (op. on reh'g). Tucker cites a concurring opinion authored by Justice Scalia in Carella v. California, 491 U.S. 263, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989), and suggests that a different standard applies when the complaint involves a mandatory presumption. However, the Court of Criminal Appeals has rejected this position, holding that the Almanza "egregious harm" standard is the correct standard to apply. Garrett, 220 S.W.3d at 931-32.
[J]ury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. In examining the record to determine whether jury-charge error is egregious, the reviewing court should consider the entirety of the jury charge itself, the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole.Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006) (citing Ngo v. State, 175 S.W.3d 738, 750 n. 48 (Tex.Crim.App. 2005); Almanza, 686 S.W.2d at 171-72) (other citations omitted). The presumption was not discussed during voir dire or in opening statements. Tucker's counsel did say in her opening statement that "[t]he question is whether or not he actually pointed this weapon at the police." Deputy Tim Edwards, the complainant in the aggravated assault case, testified that he responded in his "patrol unit" to the call on the occasion in question. On arriving, he saw Tucker talking to another deputy, Sergeant Roark, by a fence. Deputy John Liscano, the complainant in the deadly conduct case, arrived at about the same time in his own patrol car. Edwards and Liscano talked briefly with Roark then went to talk with Tucker's girlfriend. Edwards later engaged in "general conversation" with Tucker. Tucker and the officers agreed that Tucker would leave the premises, but Roark allowed Tucker to talk to his girlfriend before he left. According to Edwards, the "next thing we know" Liscano was chasing Tucker toward a barn behind the house. Liscano ordered Tucker to "stop," but he ran into the barn with Edwards and Liscano following. After Liscano commanded Tucker to "let me see your hands," Tucker displayed a handgun and pointed it in the direction of Edwards and Liscano. Roark and Liscano approached, and Roark was able to disable Tucker with pepper spray. A video recording of the encounter that was admitted in evidence depicts Tucker asking Edwards if he can talk to his girlfriend before leaving. Edwards told him, "Let the sergeant make that decision." The three video recordings admitted in evidence all depict the officers wearing their uniforms. Liscano testified that all three officers were wearing their uniforms with badges that night. After Tucker was arrested, he "kept asking what he was being charged with." The complainant testified that, because she was employed as a prison guard, she had been trained with handguns and had one beside her bed that night. She said that Tucker threatened to shoot himself with her gun during their argument. Tucker also commented to her that "he could always walk outside with it when they got there and they'd shoot him." The prosecutor's closing argument reminded the jurors of the statutory presumption and referred them to the abundant evidence that the officers were all uniformed on the occasion in question. Defense counsel reiterated, "The question is, did he point that gun at the officers?" Here, the record affirmatively demonstrates that Tucker's knowledge of Deputy Edwards's status as a public servant was not a contested issue at trial. See Garrett, 159 S.W.3d at 721. And the evidence set out above relevant to his knowledge of the deputy's status is considerable. Therefore, we hold that Tucker did not suffer egregious harm from the court's failure to include the instructions on statutory presumptions required by section 2.05(a)(2). Id. Tucker's sole issue in the aggravated assault case is overruled.