Summary
holding misdemeanor assault is lesser-included offense of assault by occlusion
Summary of this case from Johnson v. StateOpinion
No. 10-16-00212-CR
10-11-2017
ANTHONY KINTA WEBB, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas
Trial Court No. 2013-266-C1
MEMORANDUM OPINION
In two issues, appellant, Anthony Kinta Webb, challenges his conviction for assault by occlusion. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B) (West Supp. 2016). Specifically, Webb complains that the trial court erred by: (1) sustaining the State's relevance objections to the testimony of Waco Police Department Officer Josh Carter about a collateral matter; and (2) denying his request for a lesser-included instruction for simple assault in the jury charge. Because we overrule both of Webb's issues on appeal, we affirm the judgment of the trial court.
Our records reflect that, despite being represented by appellate counsel, Webb has filed numerous pro se motions and requests regarding the status of this case. In light of our disposition, we dismiss all of Webb's pro se motions and requests as moot.
I. IMPEACHMENT ON A COLLATERAL MATTER
In his first issue, Webb argues that the trial court abused its discretion by sustaining the State's relevance objections to the testimony of Officer Carter regarding an incident that transpired approximately six months prior to the incident in question. We disagree.
We review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see also De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's decision if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
At trial, the State offered the audio from the complainant Diana Kay Willis's 911 call, wherein she mentioned that Webb had attacked her daughter at a prior gathering on Memorial Day. Defense counsel called Officer Carter to testify about the events occurring in that prior incident. The State objected to this testimony, arguing that the testimony was irrelevant to the incident in question. Defense counsel countered that the officer's testimony was relevant to give context to Willis's statement in the 911 call regarding the prior Memorial-Day incident. The trial court initially overruled the State's objection, but later sustained the State's objection after hearing Officer Carter's testimony on voir dire outside the presence of the jury.
In a case involving the method for impeachment to correct a false impression, this Court has stated the following:
The general rule is that a party is not entitled to impeach a witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990). The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea. Id. An exception exists "[w]hen a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression." Id. at 676.
However, "the opponent must correct the 'false impression' through cross-examination of the witness who left the false impression, not by calling other witnesses to correct that false impression." Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002); Jolly v. State, No. 02-06-00386-CR, 2008 Tex. App. LEXIS 4600, at *10 (Tex. App.—Fort Worth June 19, 2008, no pet.) (mem. op., not designated for publication). Not until after Jones had testified and the State had rested did Moore attempt to introduce evidence of Jones's payroll records through the testimony of Tracy Driver. Moore made no attempt to correct the alleged false impression through cross-examination of Jones. At most, the defense asked Jones on cross-examination, "And it was your testimony, if I recall it, that the check was for $2,800?" Jones responded affirmatively.
Moreover "[u]nless the witness's testimony created a false impression that is 'directly relevant to the offense charged,' allowing a party to delve into the issue beyond the limits of cross examination wastes time
and confuses the issues." Hayden v. State, [296 S.W.3d 549, 554 (Tex. Crim. App. 2009)] (emphasis added).Moore v. State, No. 10-08-00211-CR, 2009 Tex. App. LEXIS 4982, at **7-8 (Tex. App.—Waco July 1, 2009, pet. ref'd) (mem. op., not designated for publication).
The Memorial-Day incident, which occurred approximately six months prior to the incident in question, is irrelevant as to whether Webb committed the charged offense of assault by occlusion. In other words, the facts surrounding the Memorial-Day incident do not have any bearing on the elements of the charged offense. And to the extent that Webb intended to use Officer Carter's testimony to correct a false impression left by the 911 call or to attack Willis's credibility, we note that defense counsel cross-examined Willis regarding the comments made in the 911 call. Indeed, in response to defense counsel's questioning, Willis denied knowing if Webb was actually named as the victim in the Memorial-Day incident. Furthermore, Willis denied being mad about the Memorial-Day incident, and she indicated that she thought the police were nice to Webb in response to the Memorial-Day allegations. Additionally, on cross-examination, Willis admitted that "we had all been—had a few beers at the pool" on Memorial Day.
As shown above, Webb exercised his right to cross-examine the complaining witness about her credibility and the purported false impression left by the 911 call. Webb was entitled to correct the purported false impression through cross-examination of Willis, but "not by calling other witnesses to correct that false impression." Wheeler, 67 S.W.3d at 885 (emphasis in original); see, e.g., Jolly, 2008 Tex. App. LEXIS 4600, at *10. Because the Memorial-Day incident is not directly related to the charged offense of assault by occlusion, allowing Webb to call Officer Carter to "delve into the issue beyond limits of cross examination" would have "waste[d] time and confuse[d] the issues." Hayden, 296 S.W.3d at 554; see, e.g., Moore, 2009 Tex. App. LEXIS 4982, at **7-8. As such, we cannot say that the trial court abused its discretion in sustaining the State's objections to Officer Carter's testimony. See Tillman, 354 S.W.3d at 435; see also De La Paz, 279 S.W.3d at 343. We overrule Webb's first issue.
II. LESSER-INCLUDED INSTRUCTIONS IN THE JURY CHARGE
In his second issue, Webb contends that the trial court committed reversible error by denying his requested instruction on the lesser-included offense of class A misdemeanor assault. At the charge conference, counsel for Webb requested an instruction for simple assault, including a family violence allegation, to be submitted to the jury, in addition to the instruction regarding assault by occlusion. The trial judge denied counsel's requested instruction.
We review a trial court's refusal to include a lesser-included-offense instruction for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). An offense is a lesser-included offense if, among other things, it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Hall v. State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals has set forth a two-step analysis to determine whether a defendant is entitled to a lesser-included-offense instruction. Hall, 225 S.W.3d at 535-36; Jones v. State, 241 S.W.3d 666, 670 (Tex. App.—Texarkana 2007, no pet.). Under the "cognate-pleadings" test, as set forth in Hall, the first step concerns whether a lesser-included offense exists based on a comparison of the greater offense, as contained in the charging document, and the lesser offense, without looking to the evidence adduced in that particular case. Hall, 225 S.W.3d at 526; Jones, 241 S.W.3d at 670. "This is a question of law, and it does not depend on the evidence to be produced at trial." Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Only after the first step is answered positively do we proceed to the second step of conducting an inquiry concerning whether there was sufficient evidence at trial to have required the court to submit to the jury the issue of the lesser-included offense. Jones, 241 S.W.3d at 670-71.
The State concedes that class A misdemeanor assault is a lesser-included offense of assault by occlusion. See, e.g., Harrison v. State, No. 06-11-00196-CR, 2012 Tex. App. LEXIS 3983, at *18 (Tex. App.—Texarkana May 18, 2012, pet. ref'd) (mem. op., not designated for publication) (concluding that class A misdemeanor assault is a lesser-included offense of assault by occlusion). We therefore proceed to the second step in the Hall analysis.
Step two of the Hall analysis involves the consideration of whether there is some evidence that would permit a rational jury to find that, if Webb is guilty, he is guilty only of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012); see also Hall, 225 S.W.3d at 536. "This second step is a question of fact and is based on the evidence presented at trial." Cavazos, 382 S.W.3d at 383. A defendant is entitled to a lesser-included-offense instruction if some evidence from any source raises a fact issue on whether he is guilty of only the lesser offense, regardless of whether such evidence is weak, impeached, or contradicted. Id. However, a defendant is not entitled to a lesser-included-offense instruction simply because the evidence supporting the greater offense is weak, the evidence supporting the greater charge is discredited or weakened during cross-examination, or the jury might disbelieve crucial evidence pertaining to the greater offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). That is, "there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted." Id. "The evidence must establish the lesser-included offense as 'a valid, rational alternative to the charged offense.'" Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).
Here, we must determine whether a rational jury could have found Webb guilty of only class A misdemeanor assault, rather than assault by occlusion. Willis testified that she and Webb lived together in an apartment and that they had previously dated one another. On the night in question, Webb was playing an Xbox video game in the master bedroom where Willis slept. Willis repeatedly asked Webb to turn off the game and go to the living room, so she could go to sleep. Webb refused. Subsequently, Willis got up to unplug the Xbox, and Webb "leaned across the bed, grabbed [her] neck, and that's what started it." Willis described the incident as Webb placing his "hands around [her] neck . . . but then he proceeded to grab—you know, moved his hand down and was pinching the windpipe." Because Webb was pinching her windpipe, Willis was unable to breathe. Willis could not recall how long the choking took place but that she began to see stars and "little bursts of whiteness." Later, Willis showed the jury a scar on her neck that was caused by the incident.
Under section 22.01 of the Penal Code, a person commits the offense of simple assault if, among other things, he intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (West Supp. 2016). However, a person commits the offense of assault by occlusion if he commits simple assault against someone whose relationship to or association with the defendant is described in sections 71.0021(b), 71.003, or 71.005 of the Family Code and if the assault is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. See id. § 22.01(b)(2)(B).
Waco Police Department Officer Kenneth Carpenter testified that he responded to the scene after Willis had reported the incident. Officer Carpenter recalled that Willis's injuries were consistent with strangulation and that Willis told him that Webb "cut my air off." Officer Carpenter also spoke with Webb about the incident. Webb denied ever touching Willis and asserted that Willis had kicked him in the ribs.
Despite the foregoing, Webb points to record evidence that shows, among other things, that Willis had been drinking on the night in question; that Willis never lost consciousness; that Willis was not scared of Webb and did not leave the apartment after the incident; that Willis did not sound upset in the 911 call; that the scar on Willis's neck could have been caused by her necklace; that neither party requested medical attention; and that there was no blood on Webb's hands after the incident. None of this evidence would lead a rational jury to conclude that if Webb was guilty, he was only guilty of the lesser-included offense of class A misdemeanor assault. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B); see also Cavazos, 382 S.W.3d at 383; see also Hall, 225 S.W.3d at 536.
Furthermore, none of the evidence relied upon by Webb established a conflict in the evidence; rather, it merely created a suggestion that Willis was not choked. None of this evidence is directly germane to the lesser-included offense. There is only a suggestion or surmise that Willis was not actually choked. Therefore, because there is no affirmative evidence that Willis was not choked, the second step of the Hall test has not been met. See Cavazos, 382 S.W.3d at 383; see also Hall, 225 S.W.3d at 536. Accordingly, we cannot say that the trial court abused its discretion in denying Webb's request for a lesser-included instruction on simple assault. See Threadgill, 146 S.W.3d at 666. We overrule Webb's second issue.
III. CONCLUSION
Having overruled both of Webb's issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed October 11, 2017
Do not publish
[CR25]