Opinion issued March 10, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01064-CR
DOUGLAS ALBERT DOUGHERTY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd Judicial District Court
Brazoria County, Texas
Trial Court Cause No. 41,314
MEMORANDUM OPINION
A jury convicted appellant, Douglas Albert Dougherty, of recklessly, or with criminal negligence, causing bodily injury to an elderly individual. See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). The trial judge assessed punishment at four years’ confinement. In three points of error, appellant contends: (1) the evidence was factually insufficient to support his conviction; (2) the trial court’s failure to sua sponte limit the definitions of culpable mental states in the jury charge to the results of the act was egregious error; and (3) appellant’s trial counsel provided ineffective assistance during trial. We affirm. BACKGROUND
Appellant lived in a mobile home on property owned by his 73-year-old mother, Marie Dougherty. Near the date of the offense, Dougherty wrote a letter to appellant telling him he would have to move out of his trailer and get off her property. She also told appellant he could not use the Dodge truck to go to work. Dougherty was very angry about a woman that had been in appellant’s trailer. Appellant went to Dougherty’s house to ask her if he could use the truck because he was afraid that he would lose his job. An argument between the two ensued.
Dougherty’s neighbor, Johnny Dirzanowski, testified that on the day of the offense he heard some yelling and the sound of glass breaking when he was in his yard. The noise was coming from the direction of Dougherty’s house. Dirzanowski testified that he heard a male voice screaming, “I’m going to kill you” and “you are going to be with dad.” Dirzanowski knew that Dougherty’s husband had recently died and called 911.
Deputy K. Jordan of the Brazoria County Sheriff’s Office received a dispatch to Dougherty’s home to investigate a family disturbance. As he walked up to the house he heard loud voices inside. He heard a woman screaming, “I told you no. Now leave me alone and get out of here.” Jordan also noticed a broken window. When Jordan knocked on the door, the woman screamed, “Turn me loose. Let me go. Let me get to the door.” When Jordan entered the home, he saw a man and a woman scuffling. The woman was trying to get to the door, while the man held her back by grabbing her around the waist. Jordan grabbed appellant, and then another officer detained him.
Jordan testified that Dougherty was hysterical, and when he asked her what had happened, she told him that appellant had come to her house, that they got into an argument, and that when she told appellant he could not use the truck, he became furious, grabbed her, and threw her into a chair. The chair hit a window and broke it. Appellant then grabbed a pillow and tried to smother Dougherty to keep her from screaming. Dougherty told Jordan that appellant was trying to kill her. Dougherty told Jordan that appellant said that he would send her to be with his father and that he would kill her before he would let her send him back to prison. Jordan saw scrapes, bruises, and a small cut on Dougherty’s right arm. He also noticed that Dougherty had blood on her dress near her left buttock. Jordan took a written statement from Dougherty, which she signed in his presence.
Susie Bundick, the victim’s daughter, testified that on the day of the offense, her mother called and said that appellant had tried to kill her. When Bundick got to Dougherty’s house, the police were already there. Dougherty kept repeating that appellant had tried to kill her. Bundick noticed bruising on Dougherty’s arms and a cut on her buttock. She checked Dougherty’s blood pressure and determined that it was 220 over 150. Dougherty told Bundick that appellant had pushed her and then tried to cover her face with a pillow. Dougherty said that the bruises on her arms were from where appellant held and shoved her and that the cut on her buttocks came when appellant shoved her in a chair with broken glass in it. Dougherty dictated a statement to the police, Bundick wrote it down, and Dougherty signed it.
Katrina Bright, Dougherty’s granddaughter, testified that on the day of the offense, her mother called her to come over to Dougherty’s house. When Bright, an emergency medical technician, got to her grandmother’s house, she noticed that Dougherty had contusions, abrasions, and a 3-inch cut on her buttocks. Dougherty, who was hoarse and physically shaking, told Bright that the bruises on her arms were caused by appellant’s holding her. Dougherty also told Bright that the cut on her buttocks happened when appellant shoved her into a chair, the chair broke a window, then appellant shoved her back into the chair on the broken glass. Bright was present when her grandmother gave her statement to the police.
In contrast to the State’s version of the evidence, appellant testified that he went to his mother’s house, where they argued about the woman in appellant’s trailer and appellant’s use of the truck. Appellant testified that he did not intend to injure his mother. He claimed that he put his hand on the back of the chair and that the chair struck the window and broke it. He claimed that he did not push Dougherty, but that she calmed down, sat in the chair, and cut herself. Appellant claimed that he did not have a pillow or try to smother Dougherty, but then admitted throwing a pillow on the floor because he was angry. Appellant did not know where Dougherty’s cuts came from, but he testified that she did have 10 cats. He claimed that he did not give her a bear hug, but did put his arms around her to calm her down because she was screaming. He testified that he did not have his hands on Dougherty when Deputy Jordan entered the house.
Dougherty also testified at trial and recanted her earlier statements about appellant’s trying to kill her. Dougherty testified that the cats caused some of the scratches on her arms and that some of the injuries were the result of aspirin therapy. Dougherty testified that appellant did not throw her into the chair, but that he accidentally broke the window when he pushed in her chair while he was trying to calm her down. Dougherty testified that she did not remember giving any statements to the police: “I don’t remember giving a statement. I might have said anything, but I was too upset.”
A grand jury indicted appellant on October 11, 2001 for “intentionally and knowingly caus[ing] bodily injury to Marie Dougherty, a person sixty-five (65) years of age or older, by grabbing Marie Dougherty and pushing her.” The trial judge instructed the jury on this third degree felony offense, as well as the lesser-included offence of “injury to an elderly individual, a state jail felony.” The jury found appellant guilty of “injury to an elderly individual, a state jail felony.”
DISCUSSION
Factual Sufficiency of the Evidence
In appellant’s first point of error, he contends the evidence is factually insufficient to support his conviction. In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).
We must also employ appropriate deference so that we do not substitute our own judgment for that of the fact finder. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because that determination turns on an evaluation of credibility and demeanor. Id. at 408. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407.
Here, the State presented Dougherty’s neighbor, Dirzanowski, who testified that he called the police after hearing screams coming from Dougherty’s house. Further, the State produced the testimony of Deputy Jordan, who saw appellant grabbing Dougherty around the waist and also heard Dougherty say that appellant was trying to kill her, had tried to smother her with a pillow, and had pushed her into a chair causing her to cut her buttocks. The State also produced the testimony of Dougherty’s daughter and granddaughter, both of whom testified that Dougherty told them appellant was trying to kill her and had pushed her into a chair.
In his favor, appellant presented his own testimony and that of his mother, the victim. Dougherty denied telling Deputy Jordan, Bundick, or Bright that appellant tried to kill her. She admitted she was angry and hysterical during the occurrence and believed she would say anything without knowing or meaning what she said.
Appellant’s own testimony was consistent with Dougherty’s. He testified that he did not hurt Dougherty, but was just trying to calm her down. Appellant testified that he never pushed, cut, or tried to suffocate Dougherty in any way. Appellant also presented the testimony of his cousin, Janet Badger, who stated that Dougherty could get extremely angry at times and yell and scream. Badger also stated she never observed any violence accompanying Dougherty’s expression of anger.
Having viewed all of the evidence in a neutral light, we find that the evidence supporting appellant’s conviction is not too weak to support the finding of guilt beyond a reasonable doubt; nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407. The jury was entitled to believe the testimony of Deputy Jordan and Dougherty’s daughter and granddaughter over the testimony of appellant, a convicted felon, and Dougherty, his mother, especially in light of Dougherty’s prior inconsistent statements to police.
When the evidence is conflicting, the jury’s verdict is generally regarded as conclusive. See McGarity v. State, 5 S.W.3d 223, 232 (Tex. App.—San Antonio 1999, no pet.). We hold the evidence demonstrates the jury was rationally justified in finding appellant guilty of injury to an elderly individual beyond a reasonable doubt. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
We overrule appellant’s first point of error.
Failure to Limit Definitions of Culpable Mental States in Jury Charge
In appellant’s second point of error, he contends the trial court erred because it did not sua sponte limit the definitions of the culpable mental states in the jury charge to the results of appellant’s conduct. Appellant did not object to the charge; therefore we will reverse only “if the error is so egregious and created such harm that [appellant] ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). To conduct an egregious harm analysis, we consider “[1] the entire jury charge, [2] the state of the evidence, including the contested issues and weight of probative evidence, [3] the argument of counsel and [4] any other relevant information revealed by the record of the trial as a whole.” Id.
A grand jury indicted Appellant for “intentionally and knowingly caus[ing] bodily injury to Marie Dougherty, a person sixty-five (65) years of age or older, by grabbing Marie Dougherty and pushing her.” See Tex. Pen. Code Ann. § 22.04 (Vernon 2003). The trial court instructed the jury it could find appellant guilty of either the third degree felony of intentionally or knowingly causing bodily injury to Dougherty, or the state-jail felony of recklessly or with criminal negligence causing bodily injury to Dougherty. See Tex. Pen. Code Ann. § 22.04(a)(3), (f) (Vernon 2003).
The trial court, using the culpable mental state definitions from the Penal Code, instructed the jury in the abstract portion of the charge as follows:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly or with knowledge, with respect to the nature of his conduct or circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to the circumstances surrounding his conduct or to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. . . .
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that circumstances exist or the result will occur. . . .
(Emphasis added); see Tex. Pen. Code Ann. § 6.03(a)-(d) (Vernon 2003).
Appellant contends the trial court erred when it failed to limit the definitions of the culpable mental states because the definitions allowed the jury to convict appellant based on an intent to perform the conduct rather than an intent to cause the result of his conduct. See Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990). Injury to an elderly person is a result-oriented crime. Id. Appellant is correct that the trial could should have limited the definitions in the jury charge “to the kind of mental state which the . . . statute criminalizes.” Id. However, the trial court’s failure to sua sponte limit the culpable mental state definitions in this case did not result in egregious error.
In the application paragraphs, the trial court charged the jury,
Now if you find from the evidence beyond a reasonable doubt that . . . the defendant did then and there intentionally or knowingly cause bodily injury to Marie Dougherty . . . then you will find the defendant guilty of injury to an elderly individual, a third degree felony, as charged in the indictment. . . .
Now if you find and believe beyond a reasonable doubt that . . . the defendant . . . did then and there recklessly or with criminal negligence cause bodily injury to Marie Dougherty . . . then you will find the defendant guilty of injury to an elderly individual, a state jail felony . . . .
Although the trial court gave the full statutory definitions of the culpable mental states in the abstract portion of the charge, the court properly limited the definitions in the application paragraphs. Thus, the jury could only convict appellant if it found that appellant intentionally, knowingly, recklessly, or with criminal negligence caused Dougherty’s injuries.
When the application paragraph correctly instructs the jury, an error in the abstract instructions is not egregious. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Weatherred v. State, 35 S.W.3d 304, 310 (Tex. App. – Beaumont 2001, pet. ref’d) (finding no egregious error when the specific language in application paragraph properly limited broad language in definitions). Patrick v. State is analogous to this case. See Patrick v. State, 906 S.W.2d 481, 491-494 (Tex. Crim. App. 1995). In Patrick, the trial court did not properly limit the definitions of the culpable mental states for the result-oriented crime of capital murder. Id. at 492-94. The definitions were, however, limited to the result of the conduct in the application paragraph. Id. at 493.
The court first noted that the word “intentionally” modified the phrase “cause the death” in the application paragraph. Id. The court reasoned that the jury understood that the “result of conduct” language in the definition applied to the “cause the death” language in the application paragraph. Id. Thus, the court held that the application paragraph properly instructed the jury to apply only the appropriate portion of the broad definitions and found the trial court did not harm the defendant when it failed to limit the definitions to the result of the defendant’s conduct. Id. at 493.
In this case, the trial court did not limit the definitions of the culpable mental states to the result of appellant’s conduct. However, as in Patrick, the application paragraph correctly instructed the jury on the law. Additionally, the applicable mental states here modified “cause bodily injury to Marie Dougherty” in the application paragraph. Thus, the trial court did not harm appellant by failing to limit the definitions of intentionally, knowingly, recklessly, and with criminal negligence. Appellant’s reliance on Banks v. State is misplaced. See 819 S.W.2d 676, 678-82 (Tex. App.—San Antonio 1991, pet. ref’d). In Banks, the courted fail to limit the definitions of the culpable mental states for a result-oriented crime, but also failed to limit the application paragraph to the results of the conduct. Id. at 680. Egregious error is reversible only if there is “actual, not just theoretical, harm to the accused.” Almanza, 686 S.W.2d at 174. “[B]ecause the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court’s failure to limit the definitions of culpable mental states to [the] result and circumstances.” Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1995).
We overrule appellant’s second point of error.
Ineffective Assistance of Counsel
In appellant’s third point of error, he contends he received ineffective assistance of counsel at trial. Specifically he contends his counsel was ineffective by failing (1) to request a jury charge on accident; (2) to object to the four definitions of the culpable mental states in the jury charge or request that the definitions be limited to the result of appellant’s conduct; and (3) to object to the State’s jury argument that “urged conviction on a theory not charged in the indictment” and focused on the nature of appellant’s conduct rather than the result.
Under Strickland v. Washington, appellant can prevail on an ineffective assistance of counsel claim only if he can meet a two-pronged test. First, he must show that counsel’s performance was deficient by falling below an objective standard of reasonableness. See 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Second, he must show that there is a probability sufficient to undermine the confidence in the outcome that but for counsel’s unprofessional errors, the result of the proceeding would have been different. See id.
We “indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable assistance, [and] the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Appellant must overcome this presumption. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Isolated instances of counsel’s failure to object are insufficient to establish counsel as constitutionally ineffective. Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992).
Accident
Appellant contends trial counsel was ineffective because he failed to request a jury instruction on the accident defense. The authority to establish defenses to penal code violations rests solely within the province of the Texas Legislature. Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998). A defense not specifically authorized by the Legislature “does not warrant a separate instruction.” Id.
In Chapter 8 of the Penal Code, the Legislature designates insanity, mistake of fact, mistake of law, intoxication, duress, entrapment, and age as statutory defenses to penal code violations. See Tex. Pen. Code Ann. §§ 8.01-8.07 (Vernon 2003). Accident is not a legislatively authorized defense. See id.; Kimbrough v. State, 959 S.W.2d 634 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (acknowledging Texas law does not recognize “accident” defense).
Further, appellant claims his witnesses “raised the defense of accident which negates Appellant’s mental culpability.” Although “accident” is not a statutory defense, it is a defensive theory that negates an element of the charged offense. See Giesberg, 984 S.W.2d at 250 (describing the defensive theory of “alibi.”). A defensive theory requires nothing more than that appellant present evidence and argue to the jury that he did not possess any of the requisite culpable mental states to be convicted of the crime. Id. Absent statutory authorization, a defensive theory does not warrant a separate jury instruction. Id. at 249. Therefore, appellant’s counsel did not fall below an objective standard of reasonableness when he failed to request an instruction on a defense not recognized under Texas law. As such, appellant cannot meet the first prong of the Strickland test.
Culpable Mental State Definitions
Appellant also contends trial counsel was ineffective when he failed to object either to the trial court’s failure to limit the culpable mental state definitions in the jury charge or the State’s closing argument focusing on appellant’s conduct rather than the result of appellant’s actions. We addressed these issues in our discussion of point of error two, holding that there was no “egregious error” in the jury charge, i.e., error causing harm such that appellant has not “had a fair and impartial trial.” See Almanza v. State, 686 S.W.2d at 171. As such, appellant cannot show that but for but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Appellant, thus, fails to meet the second prong of the Strickland test.
We overrule appellant’s third point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Do not publish. Tex. R. App. P. 47.2(b).