Opinion issued June 7, 2007
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 ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS
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 2006). The trial judge assessed punishment at four years' confinement. On appeal, appellant argued that the trial court's failure, sua sponte, to limit the definitions of culpable mental states in the jury charge to the results of the act was egregious error. This Court agreed, but found the error to be harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The Court of Criminal Appeals held that by focusing solely on the jury charge in determining harm, "the Court of Appeals failed to consider the other factors required by Almanza." Dougherty v. State, No. PD-1411-05, slip op. at 2, 2006 WL 475802, at *1 (Tex. Crim. App. March 1, 2006) (not designated for publication). Accordingly, the Court of Criminal Appeals vacated the judgment of this Court and remanded the case "for reconsideration of the harm arising from the jury charge error in light of all the factors set forth in Almanza." Id.
BACKGROUND
The facts, as set forth in our previous opinion, (1) are as follows: 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 who 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. 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 into 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
Error Restated--Failure to Limit Definitions of Culpable Mental States
In appellant's second point of error, he argued that 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.
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 2006). 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 2006).
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 2006).
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. See id. Appellant is correct that the trial court should have limited the definitions in the jury charge "to the kind of mental state which the . . . statute criminalizes." Id. Thus, we turn to the issue of whether appellant was harmed.
Error Analysis of Almanza Factors
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.'" Almanza, 686 S.W.2d 157 at 171. 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.
The Entire Jury Charge
The first Almanza factor requires us to consider the jury charge as a whole.
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.
The Court of Criminal Appeals has held, under similar circumstances, that when the application paragraph correctly instructs the jury, an error in the abstract instructions is not egregious. See Patrick v. State, 906 S.W.2d 481, 491-93 (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 491-93. 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. Appellant's reliance on Banks v. State is misplaced. See 819 S.W.2d 676, 678-81 (Tex. App.--San Antonio 1991, pet. ref'd). In Banks, the court failed 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.
Because the application paragraph correctly instructed the jury on the law, the first Almanza factor favors finding the error to be not egregious.
The State of the Evidence
The State's evidence in the case was legally and factually sufficient, despite Dougherty's having recanted. 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. 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.
Because there was conflicting evidence of appellant's mens rea, we find that the state of the evidence in this case--the second of the Almanza factors--is neutral on whether we should find the error to be egregious.
The Argument of Counsel
Appellant argues that the prosecutor's argument in this case caused the error in the charge to be egregious. Specifically, appellant points out that the prosecutor argued that appellant "[i]ntentionally and knowingly performed an act and that caused an injury and he doesn't have to intend the injury. Just the act."
While we agree that this is an incorrect statement of the law in this case, (2) we must examine the State's entire argument to determine whether the prosecutor's argument contributed to the jury charge error in such a way to render the error egregious. The prosecutor's argument, in full, was as follows:
He told you during the altercation I put my hand on the chair, it blew back, it hit the window, glass broke. She sat back down in it, she cut herself. I asked him, "Mr. Dougherty, you meant to put your hand on that chair, the glass broke, you saw her sit down in it. She would not have been cut were it not for your putting your hand on the chair and breaking the glass."
"That's true, ma'am." So when you go and you're reading your charge you don't have a problem. You don't have a problem because he told you he did it. It's done. The only job you have to do--the only work you are going to have to do is decide when you go back there what is he guilty of. Is it the third degree felony that he intentionally, knowingly did it, or is it the state jail felony that he did it recklessly? Well, I asked him, "Did you mean to put your hand on the chair," and he said, "Yes, ma'am."
And when you are reading your charge and then you are reading the mental states on page 2, 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--yes, I mean to put my hand on the chair--or desire to engage in the conduct or cause the result.
I think what he told you today is I didn't mean to cut her, though. But did he mean to put his hand on the chair? He said to you, yes, he did. And you set it in motion and the glass is broken and your mother is cut.
Knowingly. A person acts knowingly or with knowledge with respect to the nature of his conduct or to circumstances surrounding conduct when he's aware of the nature of his conduct. "Mr. Dougherty, you put your hand on that chair?" "Yes, I did."
Start the wheel in motion. 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 a result. This is the house he grew up in. He had a great deal of knowledge about the chair and the window and where it was seated in that room and that it was right up against a pane of glass. And there was also testimony that the strings on the chair aren't working any more. That came from Mrs. Dougherty. It came from the defense. But in a heated argument I'm going to walk over in an attempt to calm my mother and come down on the chair that sits up against a pane of glass. He was aware that his conduct is reasonably certain to cause the result.
That's knowingly. You act knowingly. And I submit to you he acted knowingly when he pushed her down in that chair, even if we say he just pushed the chair causing that glass to break and cutting her.
While portions of the State's argument do improperly focus on the defendant's conduct, rather than whether he intended the result of his conduct, the argument, when taken as a whole, is that appellant acted "knowingly" when he pushed the chair. That is, appellant was reasonably certain when he pushed the chair that the glass would break and injure Mrs. Dougherty.
In a murder case, the Court of Criminal Appeals has held that "for knowing murders, the distinction between result of conduct and nature of conduct blurs because awareness of the result of the conduct necessarily entails awareness of the nature of the conduct as well." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). A knowing murder is a result-of-conduct offense, which, by definition, is also a nature-of-conduct offense. Id.
The reasoning of Medina is equally applicable to this case. By arguing that appellant acted knowingly when he pushed the chair, the State was also arguing that appellant was reasonably certain that his conduct would result in injury to Mrs. Dougherty.
Because parts of the prosecutor's argument were incorrect, and other parts correctly asked the jury to consider whether appellant's conduct was reasonably certain to cause the resulting injury, the third Almanza factor is neutral on whether we should find the error to be egregious.
Other Relevant Information
Finally, we note that, although appellant was charged with the third degree felony offense of injury to an elderly individual, he was convicted of the lesser offense of reckless or criminally negligent injury to an elderly individual, a state jail felony. The jury instructions in the abstract paragraph, as they relate to the lesser offense, were not erroneous because they did not include the "nature of conduct" language found in the paragraphs relating to the greater offense.
Because the abstract paragraph and the application paragraphs were both correct as they relate to the lesser offense of reckless or criminally negligent injury to an elderly individual, and because appellant was convicted of the lesser offense, the fourth Almanza factor favors finding the error harmless.
CONCLUSION
After considering all the factors set forth in Almanza, we find the error in the abstract portion of the jury charge to be not an egregious error.
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).
1. Dougherty v. State, No. 01-03-01064-CR, 2005 WL 1704882 (Tex. App.--Houston [1st
Dist.] March 10, 2005), reversed, No. PD-1411-05, 2006 WL 475802 (Tex. Crim. App.
March 1, 2006).
2. We note that appellant did not object to the prosecutor's argument during trial, and thus he
could not complain about it on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.
App. 1996). Nevertheless, we will consider the argument in connection with our Almanza
analysis.