11th Court of Appeals
Eastland, Texas
Opinion
Otha Lee Bernstine
Appellant
Vs. No. 11-03-00252-CR -- Appeal from Harris County
State of Texas
Appellee
The jury convicted Otha Lee Bernstine of the offense of aggravated assault. Upon his plea of true to both enhancement allegations, the jury assessed appellant’s punishment at confinement for 33 years. We affirm.
Appellant presents three issues for review. In the first issue, appellant complains of error committed when the court reporter failed to record some of the bench conferences. We find that appellant failed to preserve this issue for review. The record shows that the court reporter who recorded the second and third days of the trial did not record the bench conferences from the second day of trial. On the morning of the third day, defense counsel brought the issue to the trial court’s attention and noted that he had instructed the court reporter who was recording the proceedings on the first day of trial to record the bench conferences. Defense counsel did not realize that a different court reporter was present on day two. During this discussion, the prosecutor agreed with defense counsel and stipulated regarding the bases for the objections made during a bench conference to the State’s questioning of appellant’s brother about appellant’s drug use.
Appellant relies upon Tanguma v. State, 47 S.W.3d 663, 673-74 (Tex.App. - Corpus Christi 2001, pet’n ref’d), in support of his argument. However, Tanguma was disapproved of by the Court of Criminal Appeals in Valle v. State, 109 S.W.3d 500, 508-09 (Tex.Cr.App.2003). In Valle, the court held that an objection is required to preserve error when a court reporter fails to record a bench conference. Valle v. State, supra. Defense counsel did not timely raise an objection to the court reporter’s failure to record the bench conferences on the second day of trial. See Moore v. State, 999 S.W.2d 385, 398 (Tex.Cr.App.1999), cert. den’d, 530 U.S. 1216 (2000); see also Valle v. State, supra. Because the error was not preserved for review, appellant’s first issue is overruled.
In his second issue, appellant contends that he was denied his right against self-incrimination in violation of the Fifth Amendment when defense counsel made a deal with the State regarding the admission of evidence, a self-defense instruction, and appellant’s testimony. The record shows that defense counsel and the prosecutor reached an agreement that was put on the record in open court. The prosecutor agreed not to object to the admission of appellant’s medical records and a photograph of appellant if appellant would agree not to request a charge on self-defense if he changed his mind and decided not to testify. Appellant indicated at that time that he wanted to testify at trial. Sub-sequently, appellant did testify as a witness in his own behalf.
Although the propriety of the agreement between defense counsel and the prosecutor is questionable, it had no effect in this case. Appellant’s Fifth Amendment rights were not violated. Appellant was not forced to testify, but chose to testify in his own behalf. If evidence other than appellant’s testimony had supported his self-defense theory, an instruction on self-defense would have been appropriate whether or not appellant chose to testify. In this case, the only evidence raising self-defense was the testimony of appellant. By all other accounts, appellant was the initial aggressor. Appellant’s second issue is overruled.
In the third issue, appellant argues that the evidence is factually insufficient because no rational jury would have found against appellant on the issue of self-defense. On appeal from a criminal conviction, a defendant properly attacks the jury’s failure to find the elements of his affirmative defense by means of an against-the-great-weight-and-preponderance point of error. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Cr.App. April 21, 2004). We must review such an assertion by considering all the evidence and determining whether the verdict “is so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Zuniga v. State, supra at *4 (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Cr.App.1990)).
The record in this case shows that a domestic dispute occurred involving several members of appellant’s family. The complainant in this case was appellant’s wife. The State presented evidence showing that the complainant and appellant had been having some marital problems and that, on the night of the offense, the complainant asked appellant to leave their house. Appellant began gathering his things. The complainant followed appellant, and they were arguing. Appellant pulled a kitchen knife out of his back pocket and “stuck” the complainant in the arm. The complainant then picked up a coffee pot and attempted to hit appellant with it. Appellant darted into the garage. The complainant told her oldest son, Little Jimmy Wilson, Jr., to go “get the bat.” While Wilson was inside getting the baseball bat, the complainant and appellant continued the altercation in the garage. Appellant stabbed and cut the complainant a total of five times. When Wilson came back, he hit appellant hard a few times with the bat. Even though Wilson broke the bat while hitting appellant and appellant’s head was “busted,” appellant kept coming at Wilson and the complainant with the knife. After the bat broke, Wilson grabbed appellant and tried to subdue him. The complainant was trying to help by hitting appellant from behind with a lamp. The struggle eventually moved outside onto the driveway, where Wilson and the complainant pinned appellant down and sat on top of him. Appellant still continued to struggle and would not let go of the knife until the complainant’s 11-year-old son hit appellant’s hand several times with the blunt end of the bat. After the knife fell out of appellant’s hands, the complainant and Wilson got off of appellant, and appellant ran away.
According to Wilson, appellant “charged” back into the garage and attacked the complainant with the knife. The testimony of the complainant, of Wilson, and of the complainant’s daughter reveals that appellant was the aggressor and that the complainant had not threatened or assaulted appellant prior to appellant’s use of the knife against the complainant.
In contrast to the testimony of the State’s witnesses, appellant testified that the complainant was the first person to exhibit a knife and that he did not take his knife out of his pocket until after Wilson hit him with the bat a couple of times. Appellant testified that “they” were attacking him from both sides and that he just “lashed” out with his knife in self-defense. Appellant testified that he ran away limping as soon as the complainant and Wilson got off of him.
We cannot hold that the jury’s failure to find in favor of appellant on the self-defense issue was against the great weight and preponderance of the evidence. The jury was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). As such, the jury was free to reject appellant’s version of the incident and find against appellant on the affirmative defense. Furthermore, the evidence is factually sufficient with respect to the elements of the offense to support the jury’s verdict finding appellant guilty of the offense of aggravated assault. Appellant’s third issue is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
September 16, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.