No. 05-07-00903-CR
Opinion Filed July 10, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 11 Dallas County, Texas, Trial Court Cause No. MA06-14319N.
Before Justices WRIGHT, BRIDGES, and MAZZANT. Opinion By Justice WRIGHT.
CAROLYN WRIGHT, Justice.
Jan Marie Wilson appeals her conviction for assaulting her husband, Matthew Wilson. After the jury found appellant guilty, the trial court assessed punishment at confinement for eighteen days. In four issues, appellant contends (1) the trial court erred by denying her request for a self-defense instruction; (2) the evidence is legally insufficient to support her conviction because there is a fatal variance between the information and the evidence presented at trial; (3) the charge was fundamentally defective; and (4) the trial court improperly commented on the weight of the evidence. We overrule appellant's issues and affirm the trial court's judgment.
Background
Wilson testified that he and appellant lived in the Budget Suites in Addision. Wilson came home late one night to take medication he had been prescribed for a neck injury. Wilson found his Lortab, Zanaflex, Ultram, and Neurontin bottles empty. Wilson woke appellant, but she was "quite groggy . . . basically out of it." After appellant admitted taking Wilson's medication, Wilson walked into the next room to call his sister to come and get him because "he had had enough." As he was talking to his sister, Wilson saw appellant with a computer hard drive in her hands "like she was going to hit me in the head with it." Wilson pushed the hard drive away, and it fell to the ground. Appellant then pulled the telephone cord from the wall. Wilson found a second cord, plugged the telephone back in, and called his sister again. Appellant grabbed the telephone from Wilson's hand and went back into the bedroom. Wilson followed appellant into the bedroom, telling her to give him the telephone. When Wilson tried to take the telephone from appellant, "she threw it in the closet." The telephone landed in a wooden crate and Wilson got onto his hands and knees to retrieve it. As he did so, appellant jumped on his back, knocking Wilson into the crate. The corner of the crate "went up [Wilson's] ribcage" making it difficult to breath. Although Wilson told her several times to get off, appellant stayed on his back "pushing her elbow into his neck." When she finally got off of his back, it took Wilson a "couple of minutes" to get to his feet and to go to a nearby friend's suite. When the police arrived, Wilson was having difficulty breathing and was taken to the hospital by paramedics. After hearing this and other evidence, the jury found appellant guilty of assault. This appeal followed. Discussion
In her first issue, appellant contends the trial court erred by denying her request for a jury instruction on the issue of self-defense. Specifically, appellant claims she was entitled to such an instruction because she had taken Wilson's prescription medication and when taking the same medication in the past had been "groggy, dizzy, and exhibited weird behavior." According to appellant, under these circumstances it "is certainly reasonably foreseeable that [she] would have felt she was being assaulted by the complainant." A defendant is entitled to a self-defense instruction if the issue is raised by the evidence, regardless of whether that evidence is weak or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). But if the evidence, viewed in the light most favorable to the defendant, does not raise the issue of self-defense, the defendant is not entitled to an instruction. Id. Under section 9.31 of the penal code, a person is justified in using force against another when, and to the degree, she reasonably believes the force is immediately necessary to protect herself against the other's use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (Vernon 2007). Because the statute provides that the force used must be reasonable as contemplated from appellant's point of view, there must be some evidence of appellant's state of mind or observable manifestations of her state of mind to raise the issue of self-defense. See Reed v. State, 703 S.W.2d 380, 385 (Tex.App.-Dallas 1986, pet. ref'd) (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984)). In the record before us, there is no evidence of appellant's belief, reasonable or otherwise, at the time of the assault. Appellant did not testify in this case so there is no direct evidence of her state of mind. Appellant relies on Wilson's testimony that appellant was "out of it," "groggy," and "drowsy" when he woke her up, and when she has taken such medications she does "weird things" to show her state of mind. According to appellant, under these circumstances it "is certainly reasonably foreseeable that [she] would have felt she was being assaulted by the complainant." We agree with appellant that the record shows she was under the influence of the medication she had taken, and we agree that a belief that she was being attacked might be reasonable under those circumstances. However, evidence of being under the influence of drugs alone does not suggest appellant thought she was being attacked. Without either direct evidence of her state of mind or evidence of an observable manifestation of her state of mind at the time she attacked Wilson, the evidence does not raise the issue of self-defense. Thus, we conclude the trial court properly denied her requested instruction. See Reed, 703 S.W.2d at 385 (evidence that defendant's roommate, due to previous break-in incidents by third parties, believed he was being unlawfully attacked when police officers entered home of defendant and roommate to execute "no-knock" search warrant did not warrant self-defense instruction, where record did not show appellant was aware of previous incidents and thus was not evidence of defendant's beliefs, reasonable or otherwise, at time he shot non-uniformed officer). Cf. VanBrackle v. State, 179 S.W.3d 708, 714 (Tex.App.-Austin 2005, no pet.) (self-defense instruction should have been given when three witnesses testified of "observable manifestation" of appellant's belief it was necessary to defend himself against victim's use or threatened use of deadly force). We overrule appellant's first issue. In her second issue, appellant contends the evidence is legally insufficient to support her conviction because although the information alleged appellant pushed Wilson into an unknown object, the State failed to prove the nature and description of the wooden crate she pushed Wilson into was unknown to the grand jurors. When faced with a sufficiency of the evidence claim based upon a variance between the charging instrument and the proof, only a "material" variance will render the evidence insufficient. Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001). A non-essential element of the charge, such as an allegation that the object used to cause injury was unknown, may properly be excluded from a hypothetically correct jury charge. See id. at 256; Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). Thus, such an allegation is disregarded in reviewing the sufficiency of the evidence. See Gollihar, 46 S.W.3d at 256-57. Therefore, even when the evidence is insufficient to show the object was unknown to the grand jury after due diligence, the variance in proof is immaterial. In re A.J.G., 131 S.W.3d 687, 694-95 (Tex.App.-Corpus Christi 2004, pet. denied); Richards v. State, 54 S.W.3d 348, 350 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Because any variance in proof is immaterial, appellant's argument that the evidence is legally insufficient lacks merit. We overrule appellant's second issue. In her third issue, appellant contends the jury charge is fundamentally defective because it did not require the jury to find that appellant was a member of the same family or household as Wilson, or that she was in a dating relationship with him as alleged in the information. A family violence finding is not necessary to support appellant's conviction. See Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2007). And, article 42.013 of the Texas Code of Criminal Procedure provides that "if the court determines the offense involved family violence, . . . the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). Because a family violence finding is not an element of the offense and because the trial court, not the jury, is tasked with making such a determination, the jury charge is not fundamentally defective. We overrule appellant's third issue. In her fourth issue, appellant contends she was denied a fair and impartial trial when the trial judge improperly commented on the presumption of innocence and the weight of the evidence during vior dire. In particular, appellant complains of the following comment by the trial judge to the jury regarding the State's burden of proof: "And, I think I know the State well enough to know that they will bring you enough proof or they believe they are going to prove each and every element." The complained-of comment followed a lengthy explanation regarding appellant's "absolute presumption of innocence" and the State's duty to prove each element of the offense. After making the complained-of comment, the trial judge immediately continued, "you will have to say, yes you did or no you didn't. That will be up to you. As jurors you will have to decide in your mind if you are able to follow the law and require them to bring all of that proof and then if you are able to sit in the deliberation room and deliberate upon that." Following the completion of her comments to the jury (constituting six pages in the reporter's record), appellant requested a mistrial which was denied. The trial judge explained she believed she had already corrected herself, but would give another instruction to the jury. When the jury returned, the judge again explained the burden of proof and then told the jury: I don't know if the State can prove their case or not. I am sure they think so or they would not be here. I am sure the defense thinks they can't prove their case of they wouldn't be here. So I want you to make sure that you're clear. I don't know anything about their evidence in this case or what the Defense would say on this case, but you will have to be the judge of the facts. I will judge the law. You're going to judge the facts on whether or not you believe based on the evidence you hear this week the State has proven their case to you, okay? After reviewing the record in this case, we conclude the trial court's comment was an inadvertent misstatement during her explanation of the burden of proof and the jury's role as factfinder, and that her immediate correction and then further explanation was sufficient to cure any harm. See Marks v. State, 617 S.W.2d 250, 252 (Tex.Crim.App. 1981) (It is well established that an instruction by the judge to the jury to disregard any comments made by the judge is generally sufficient to cure error.). We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.