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Opinion filed February 22, 2007
In The
Eleventh Court of Appeals
__________
No. 11-05-00017-CR
__________
FRANK LEE GREEN, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 977617
O P I N I O N
The jury convicted Frank Lee Green, Jr. of the aggravated assault of Jermaine Anthony Williams, a family member; and the trial court sentenced him to two years confinement. We affirm.
I. Background Facts
Green and Sandra Elaine Green were in the midst of a divorce. She had moved out of the house but had not yet removed all of her belongings. She and her two adult sons from a previous marriage, Jermaine and Rickey Williams, arrived at Green=s house one night to remove her remaining belongings. Green let them in the house and moved a vehicle so that Jermaine and Rickey could park a U-Haul vehicle in his driveway.
Sandra, Jermaine, and Rickey went into a bedroom and began packing. Green followed them to ask Sandra how long it would take to finish moving. Either while he was in the bedroom or as he was leaving, Green and Jermaine bumped into one another or otherwise came into physical contact, and words were exchanged. Green went outside and called the police on his cell phone. He then went back inside the house and told Jermaine and Rickey to leave. While inside, he noticed that his motorcycle had been kicked over and dented. He then went into his garage to get a BB gun. Green wanted Jermaine and Rickey to think his BB gun was a larger gun, so he pumped it over 30 times to cause it to make a louder noise. He walked outside and fired the gun at them Ato get their attention.@ Jermaine and Rickey continued carrying Sandra=s belongings to the U-Haul. Green went inside the house and pointed the gun at his stepsons to scare them. Jermaine saw Green come inside the house with a bolt-action rifle. When Green pointed it at his head, Jermaine reached for the rifle, and Green struck him on the side of the face with the rifle=s stock. Green admitted to striking Jermaine but testified that he did so only after Jermaine ran at him.
After Green hit him, Jermaine smashed a mirror inside the house, and Rickey threw a brick through the front door window. The police arrived and restored order. They recovered a .22 bullet that fell from Green=s waistband as he was being patted down, a single-shot .22 rifle in the front yard of an adjacent house, and a second bullet from it. No BB gun was ever recovered.
Jermaine testified that he initially thought Green had broken his jaw. He felt constant throbbing, and his ears rang. He could not eat for three days, and he missed three days of work because of his injury.
II. Issues
Green challenges his conviction with two issues. First, Green argues that the trial court erroneously failed to require a unanimous verdict and, second, that the evidence was factually insufficient to support the jury=s rejection of his defense-of-property defense.
III. Did the trial Court Commit Egregious Error by Submitting
a Charge that Did Not Require a Unanimous Verdict?
The indictment alleged in two paragraphs that Green committed aggravated assault against Jermaine. The first paragraph alleged that Green intentionally and knowingly threatened Jermaine with imminent bodily injury by exhibiting and using a firearm. The second alleged that Green inflicted bodily injury on Jermaine by using a firearm. The trial court=s charge did not require the jury to unanimously agree on either allegation but allowed them to return a guilty verdict so long as all twelve members believed that Green had done at least one of the alleged acts. The State concedes that this was erroneous but contends that it was not harmful.
A. Standard of Review.
Green did not object to the court=s charge. He must, therefore, establish that the erroneous charge caused him to suffer egregious harm that prevented him from receiving a fair and impartial trial. Jimenez v. State, 32 S.W.3d 233, 237-38 (Tex. Crim. App. 2000). We base our harm determination on a review of the record as a whole, including the entire jury charge, the contested issues and weight of the probative evidence, and the arguments of counsel. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The harm to Green must be actual and not just theoretical. Id. at 174.
B. Analysis.
Causing bodily injury to a family member and threatening a family member with bodily injury are separately defined statutory criminal acts. See Marinos v. State, 186 S.W.3d 167, 174-75 (Tex. App.CAustin 2006, pet. filed). Unfortunately, the trial began with the trial court incorrectly instructing the jury panel during voire dire that Green was accused of committing one offense by using two different means and manner. The trial ended with the prosecution arguing that six jurors could believe that Green threatened Jermaine with a deadly weapon and the other six could believe that he caused bodily injury with a deadly weapon. The jury, therefore, was incorrectly led to believe that Green had been accused of one, rather than two, criminal acts.
Courts have found that similar errors caused egregious harm and required a new trial. See, e.g., Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005); Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). In each instance, the error directly impacted the jury=s determination of a contested issue. In Ngo, the defendant was charged with mutually exclusive allegations: stealing a credit card and receiving a stolen credit card. The charge, however, did not require a unanimous determination of either allegation. 175 S.W.3d at 751. In Hutch, the primary issue was the legality of the police=s decision to stop the defendant=s vehicle. The charge mistakenly instructed the jury that, if the defendant and his passenger were not wearing their seatbelts, then the stop was illegal. 922 S.W.2d at 169. Consequently, in Ngo, the defendant could have been convicted even though the jury split on which of the mutually exclusive acts he took; and, in Hutch, the defendant could have only been convicted if the jury determined that the evidence was illegally obtained.
Conversely, when similar errors have not impacted the jury=s determination of a contested issue, courts have found no egregious harm. See, e.g., De Los Santos v. State, No. 04-05-00694-CR, 2006 WL 3369963 (Tex. App.CSan Antonio Nov. 22, 2006, no pet. h.); Valdez v. State, No. 11-05-00046-CR, 2006 WL 2075144 (Tex. App.CEastland July 27, 2006, no pet.); Martinez v. State, No. 03-05-00345-CR, 2006 WL 1559228 (Tex. App.CAustin June 9, 2006, pet. ref=d); Marinos, 186 S.W.3d at 176-77. Typically, these have involved situations such as was present in Valdez, 2006 WL 2075144 at *7-8, where this court found that there was only one disputed issue and, thus, that the jury=s verdict necessarily indicated that it was unanimously resolved against the defendant.
In a similar case, a sister court concluded that not requiring a unanimous verdict when the defendant was charged with aggravated bodily injury assault and aggravated assault by threat created egregious harm. See Dolkart v. State, 197 S.W.3d 887 (Tex. App.CDallas 2006, pet. ref=d). In Dolkart, the defendant drove her car closely behind two bike riders before knocking one down. The trial court, without objection, submitted threat and assault allegations in the disjunctive and did not require the jury to reach a unanimous verdict on either allegation. The trial court also charged the jury on the lesser included offenses of deadly conduct, assault, and reckless driving.
In Dolkart, the record indicated that the jury was confused about the law. During their deliberations, the jury sent out a note asking, “Does an acquittal of a charge need to be unanimous in order to proceed to a lesser (next charge)?” The trial court instructed the jury to refer to the charge B which unfortunately was incorrectly worded. Id. at 894. The defendant had testified that she did not intend to injure the biker but that it was an accident. The court noted that the jury could have believed her but determined that she was acting recklessly, which would support a conviction for bodily injury assault, or that the jury could have disbelieved her, determined that she had intentionally and knowingly followed the bikers too closely so as to threaten them, and thus convicted her of assault by threat. Because the jury was confused and because it was impossible to ascertain what the jury ultimately determined, the court found egregious harm and reversed the defendant=s conviction.
This case does not contain the same ambiguity. There was no dispute that Green threatened, shot at, and then struck Jermaine with at least a BB gun. Green=s own testimony establishes each of the elements of assault by threat and assault by bodily injury. The dispute was whether Green=s actions were justified. The jury=s verdict necessarily reveals that it determined they were not.
Green contended that his actions were justified because they were in response to Jermaine and Rickey=s threats and damage to his property and because he was merely trying to get them to leave his house. Green testified that Jermaine had threatened to kill him before and that Jermaine initiated the conflict by shoving him and telling him to “move your bitch ass out of my way.” Shortly thereafter, Green noticed that his motorcycle had been kicked over and dented. He told Jermaine and Rickey that they needed to leave. When they refused, Green went to his garage and got a BB gun. Green wanted them to think that it was something besides a BB gun, so he pumped it well beyond the manufacturer=s instructions. He admitted to pointing it at them and to firing it at least once. When they still did not leave, he hit Jermaine with the gun. Green also admitted getting a .22 rifle out of his garage. He denied loading it or pointing it at his stepsons but agreed that he had .22 bullets on him when the police arrived. He testified that he was using the .22 bullets to scare his stepsons.
Green=s own testimony, thus, establishes that he did both of the charged acts. During closing argument, Green=s counsel did not dispute that Green had threatened his stepsons and hit Jermaine, but he told the jury:
[Y]ou have to take all this varied testimony and put it through Mr. Green=s viewpoint at that time to decide whether or not his actions were reasonable or unreasonable at that time and whether or not he=s guilty of the offense charged.
. . . .
So under the right circumstances you could reasonably believe that this guy is going to rip up your house or do something else that may necessitate deadly force in order to stop his behavior. That=s something only you as the jury can decide.
. . . .
So the destruction of the property had already begun and Mr. Green called the police but the police didn=t come. And remember what we=re talking about here is self help.
. . . .
Now, I would submit to you today that even if you believed that it was a .22 involved, that that [sic] deadly force was justified.
. . . .
And you heard Mr. Green testify. Why did you get the bullets? Why did you show him the bullets? Because he wanted to make them think that he had a .22, but he hadn=t gotten one yet. . . . [T]he only way to get those people out was to make them think that he was approaching them with deadly force and then at some point he actually went to go get the .22.
Because Green=s defense was predicated on his admission that he threatened and struck Jermaine, the failure to require a unanimous verdict did not result in egregious harm. The only issue was whether Green=s actions were justified. The jury=s verdict indicates that it unanimously concluded they were not. Green=s first issue is overruled.
IV. Was the Evidence Factually Sufficient to Support the Verdict?
Green contended at trial that he was justified in using force or deadly force against Jermaine to protect his property and contends on appeal that the evidence should have raised a reasonable doubt concerning his guilt in the minds of the jurors. The State answers that the evidence was factually sufficient to support Green=s conviction.
A. Standard of Review.
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-415; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.
B. Analysis.
Texas law allows an actor to use force against another to protect an actor=s own property when the actor reasonably believes that the force is immediately necessary to prevent or terminate the other=s trespass or unlawful interference with the actor=s property. Tex. Pen. Code Ann. ' 9.41 (Vernon 2003). Deadly force can be used to protect property when and to the degree the actor reasonably believes is immediately necessary to prevent the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime and when the property cannot be protected by any other means, or the use of force other than deadly force would expose the actor or another to a substantial risk of death or serious bodily injury. Tex. Pen. Code Ann. ' 9.42 (Vernon 2003).
There is no dispute that a verbal altercation broke out between Green and his stepsons, that there was some physical contact between Green and Jermaine, that Green threatened Jermaine and Rickey with at least a BB gun while attempting to make them believe it was actually a .22, that he shot at them with the gun, that he struck Jermaine with the gun, and that Jermaine and Rickey caused damage to Green=s house and property. The witnesses disputed who was the aggressor and disagreed on the sequence of the events, but Green argues that, when the evidence is viewed in a neutral light, the jury=s determination that he did not have a reasonable belief that his actions were necessary to prevent property damage is unjustified.
The reasonableness and necessity of Green=s actions were strenuously contested. Green contends that he had a reasonable belief that Jermaine was likely to damage his property because Green and Sandra were in the middle of divorce proceedings; because he and Jermaine did not like each other; and because, after Jermaine nudged Green, Jermaine used aggressive language.
Green described Jermaine as the aggressor. He testified that he asked his stepsons to leave and that he got his BB gun only after learning that they had damaged his motorcycle. Green=s niece, Kissie Wallace Elaine Thompson, testified that heard Jermaine cuss Green and that Jermaine picked up a cane and started following Green and swinging the cane at him. She also testified that Jermaine, Rickey, and Sandra began damaging Green=s property before he got a gun. As noted previously, Green contended that his actions with the BB gun and the .22 bullets were strictly to scare his stepsons so that they would leave his house.
Sandra and Jermaine disputed Green=s testimony. Both testified that Jermaine was not the aggressor but was simply trying to move her furniture to the U-Haul. Jermaine testified that the physical contact in the bedroom was unintentional and that, after that, Green Aflew off of the handle@ and threatened him. Jermaine denied threatening Green or exchanging any words with him. Jermaine testified that he thought the weapon Green used to shoot at them was probably a pellet gun. But, the weapon Green pointed at his forehead and struck him with was a .22. Furthermore, the police recovered a .22 and .22 bullets but not a BB gun.
The jury was responsible for resolving the conflicts in the evidence and, from this evidence, could have rationally determined that either no force was necessary because Green was the aggressor or, alternatively, that Green went beyond the amount of force reasonably necessary to protect his property. The evidence is factually sufficient to support the verdict, and his second issue is overruled.
V. Holding
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
February 22, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.