In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00018-CR ______________________________
MICHAEL ANDREW BAIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court No. F01-52561-VL
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Michael Andrew Bain appeals from his conviction for the offense of aggravated robbery of an elderly person. This is one of six appeals brought by Bain from his convictions. He was convicted in a single, consolidated trial, based on his guilty plea (without a plea agreement), to three indictments for aggravated robbery of an elderly person, two indictments for robbery, and one indictment for theft. A jury assessed his punishment at eighty-five years' imprisonment in the aggravated robbery convictions, forty years' imprisonment for the robbery convictions, and two years' confinement in a state jail facility for the theft conviction. The causes have been appealed separately and have been briefed together.
Since the briefs and arguments raised therein are identical in all appeals, for the reasons stated in Michael Andrew Bain v. The State of Texas, No. 06-02-00017-CR, we likewise resolve the issues in this appeal in favor of the State.
We affirm the judgment of the trial court.
Donald R. Ross
Justice
Date Submitted: June 18, 2003
Date Decided: July 1, 2003
Do Not Publish
, asserting error in the trial court's failure to define "serious bodily injury" in the jury charge and asserting that the evidence was factually insufficient to support the deadly-weapon finding. We affirm.
(1) Failure to Define "Serious Bodily Injury" for Jury Was Not Error
In his first point of error, Remsburg contends the trial court erred by failing, sua sponte, to define the term "serious bodily injury" in its written jury charge. When jury charge error is urged on appeal, we must first determine if the charge suffers from error as asserted. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Only if we determine that error exists must we then determine whether the record before us reveals the requisite level of harm as a result of the alleged error. Id. at 731-32; see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Jimenez v. State, 32 S.W.3d 233, 239 (Tex. Crim. App. 2000); Stokes v. State, 74 S.W.3d 48, 50 (Tex. App.--Texarkana 2002, pet. ref'd).
A trial court's written charge to the jury should set forth the law applicable to the case without expressing any opinion the trial court may have regarding the weight of the evidence and without summarizing any testimony or otherwise discussing the evidence presented. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2006). In this case, Remsburg was charged with evading arrest or detention while using a vehicle. See Tex. Penal Code Ann. § 38.04(b)(1). That offense is usually a state-jail felony. Id. That offense becomes a third-degree felony if it is shown at trial that the actor used or exhibited a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 12.35(c).
In this case, the State sought that deadly-weapon finding. The part of the definition of a "deadly weapon" applicable here required that, in the manner Remsburg used the vehicle, it was "capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2006). So, the definition of "serious bodily injury" could have theoretically helped the jury.
When jury charge errors are urged on appeal, we must first determine if the current complaint constituted error. Abdnor, 871 S.W.2d at 731. If so, we then determine whether the appellant preserved the error at trial. If he or she did not object at trial, then the "appropriate standard [of review] is the one for fundamental error in the charge." Jimenez, 32 S.W.3d at 239; see also Stokes, 74 S.W.3d at 50. This standard means that we should not reverse the trial court's judgment "unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19; see also Abdnor, 871 S.W.2d at 732. The harm demonstrated by the appellant must be actual, not merely theoretical. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh'g); Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.--Texarkana 2004, pet. ref'd). Here, no objection was presented concerning the failure to define "serious bodily injury" for the jury. Therefore, we would ordinarily seek to determine whether any error was calculated to injure Remsburg's rights or whether he was otherwise denied a fair and impartial trial.
We note in the record no evidence or argument made by trial counsel which makes an important issue of whether the motor vehicle Remsburg used for his flight, with people nearby, was capable of causing serious bodily injury or death.
An appellate brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Remsburg's appellate brief makes no effort to show what evidence in the record demonstrates actual harm as a result of the trial court failing to define a term that does not appear in the indictment. The totality of Remsburg's argument is:
Mr. Remsburg incurred egregious harm from the trial court's failure to define "serious bodily injury" in the charge. The jury was not instructed that serious bodily injury would mean bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The jury was allowed unfettered discretion to surmise that serious bodily [sic] was something far less than its statutory definition.
At best, Remsburg's argument concerns theoretical harm. The standard of review requires evidence concerning actual harm, which Remsburg has not briefed. We overrule this point of error as inadequately briefed. See id.
(2) Factually Sufficient Evidence Supported the Deadly-Weapon Finding
In his second point of error, Remsburg asserts the evidence is factually insufficient to show that, while in flight on this occasion, Remsburg used his vehicle to put another person in danger of being harmed. In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
Lawrence testified that, on the morning of December 18, 2005, he was driving around Paris looking for furniture that had been abandoned outside rental houses and apartments. (1) He was near the 9th Street Grocery Store when he saw a young male tinkering with an electrical meter outside the store. Lawrence thought such conduct was suspicious, so he drove around the block and eventually came back to watch the continued suspicious conduct. Eventually, Lawrence noticed that two police officers arrived while the suspect was at the scene. As the officers approached the suspect's gold vehicle, which the suspect had gotten into, the suspect put the vehicle in reverse (almost striking one of the officers) and fled the scene. Another officer then got into a police cruiser, activated that vehicle's lights and sirens, and followed the gold vehicle. The driver then drove the gold vehicle towards where Lawrence was parked. Fortunately, Lawrence moved his truck just in time to avoid being struck in the passenger's side by the speeding gold vehicle. Lawrence testified that, had he not reacted so quickly by moving his truck out of harm's way, both he and his truck might have been damaged from the otherwise inevitable collision.
Officer Shane Stone of the Paris Police Department testified that he was dispatched to the 9th Street Grocery Store regarding the event. Stone testified he was wearing his distinctive police uniform and driving a clearly marked police vehicle. As he arrived at the scene, two other police officers were already there, Officers Pillars and Boehler. Also at the scene was a gold vehicle with the headlights turned off. Stone then observed that the driver of the gold vehicle "took off pretty quick . . . ." Stone then drove after the fleeing gold vehicle. He also sent out a "be-on-the-lookout" over his police radio, warning other officers nearby to be watching for the gold vehicle. Stone, however, quickly lost sight of that vehicle.
Shortly thereafter, Trooper Wilson spotted the gold vehicle less than two miles from where Stone had lost sight of the suspect's vehicle. Wilson testified that the suspect's vehicle was traveling sixty-six miles per hour on a road marked for a maximum of sixty miles per hour. Trooper Wilson eventually got the driver of the vehicle to stop. Wilson then got out of his vehicle, ordered the suspect to turn off the ignition to the gold vehicle, and walked toward that vehicle. When Wilson reached the suspect's driver's side door, the officer asked the driver to get out of the gold vehicle. The driver, however, did not comply; instead, he turned the ignition back on, threw the transmission into gear, and tried to take off. Wilson instinctively jumped inside the suspect's vehicle. The vehicle eventually ended up in a ditch. Wilson testified that, had he not jumped inside the vehicle (but had instead remained outside of the vehicle when the suspect attempted suddenly to drive off), he might have been killed or seriously injured by being run over by the suspect's vehicle. Eventually the vehicle was stopped, and its driver--identified at trial as Remsburg--was taken into custody. (2)
We believe the jury was free to conclude that Remsburg's conduct relative to Wilson was part and parcel of his continuing efforts to elude police capture. Cf. Hobbs v. State, 175 S.W.3d 777, 778-81 (Tex. Crim. App. 2005) (evading arrest can be continuous crime); and cf. id. (Cochran, J., dissenting) (change in accused's manner of locomotion from fleeing on foot to fleeing in vehicle does not encompass two separate crimes, but is instead one continuous criminal act of evading arrest). The jury could also have easily concluded this use of the vehicle risked causing death or serious bodily injury to Wilson. Alternatively, the jury was free to conclude that Remsburg's actions of almost running into Lawrence's vehicle constituted a use of the gold vehicle that was capable of causing death or serious bodily injury.
Remsburg's brief on appeal has failed to direct our attention to any contrary evidence, and our independent review of the record has revealed none. Accordingly, we cannot say the overwhelming weight of the evidence in this case contradicts the jury's verdict. We overrule Remsburg's final point of error.
For the reasons stated, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 5, 2007
Date Decided: March 30, 2007
Do Not Publish
1. Lawrence testified he collects this furniture, repairs it, and gives it away to the needy in connection with his involvement with a Christian charity.
2. According to various witnesses, Remsburg did not, in any manner, cooperate with the arresting officers; instead, Remsburg violently resisted being taken into police custody.