Reversed and Remanded and Memorandum Opinion filed September 23, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00839-CR
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CHRISTOPHER ONEAL JOHNSON, Appellant
V.
THE STATE OF TEXAS , Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 889,170
M E M O R A N D U M O P I N I O N
Appellant Christopher Oneal Johnson was convicted by a jury of aggravated assault on a public servant. Asserting two points of error, appellant appeals his conviction. We reverse and remand for a new trial.
FACTUAL AND PROCEDURAL HISTORY
On September 26, 2001, Debbie Lynn Sadiq arrived home to find her fiancé, Prentice Coleman, lying on the floor in a pool of blood. Although it was ultimately determined Coleman had suffered a seizure, initially the cause of Coleman=s injury was unknown. Sadiq called 9-1-1 and a Houston Fire Department fire truck and ambulance were dispatched to the scene. Sadiq also called her son, the appellant, to drive her to the hospital.
Complainant Arnoldo Jimenez was the ambulance driver of the vehicle dispatched to care for Coleman; Rudolph Valdez, a member of the Houston Fire Department, and his partner, Ruben Hernandez, a paramedic, were also dispatched to the scene. When Valdez and Hernandez arrived, complainant was treating Coleman in the back of the ambulance.
At trial, Valdez and Hernandez testified they joined complainant (Jimenez) in the ambulance shortly after their arrival at the scene. While the three were working on Coleman, appellant arrived with a female companion. It is at this point that the State=s and appellant=s versions of the facts differ significantly.
According to the State, the ambulance door was closed when appellant arrived. Appellant slammed on his brakes, screeched to a halt, exited his vehicle holding a .380 automatic pistol, pointed the gun at Valdez, and told Valdez to get out of the way. Appellant then opened the door to the ambulance, pointed his pistol at the paramedics and asked Awhich one of you mother f‑‑‑ers is first?@ or Awhich one of you mother f---ers did it?@ When Valdez told appellant to put the gun away, appellant allegedly answered Af--- you@ and continued pointing the gun for 30 to 45 seconds. Complainant testified he was Aterrified@ and believed appellant was going to shoot them. There is conflicting testimony as to the color and caliber of the weapon.
According to the State, a neighbor, Juan Collier, then distracted appellant and appellant and Collier began to fight. During the altercation, the paramedics watched from inside the ambulance and called police. After a few moments, appellant put away his gun and left the scene. No gun was ever admitted as evidence during the trial.
The defense=s version of the facts is quite different. Appellant=s brother, a witness to the incident, testified that when appellant arrived at Sadiq=s home, there was a large crowd of bystanders. The crowd of bystanders included Collier, a man with whom appellant had many disagreements, as well as several of Collier=s friends.
According to the defense, when appellant got the call from his mother, he was not informed as to the cause of Coleman=s injury and assumed it was a robbery or attack of some kind. Upset and distraught over Coleman=s condition, appellant rushed to the scene. As he screeched to a halt in front of Sadiq=s home, he threw open the door to exit his vehicle and a BB gun and mobile phone fell out of the car. Picking up the BB gun, appellant confronted Collier=s group and asked Awhich of you . . . did it@ referencing Coleman=s injury. The defense contends the door to the ambulance was open and appellant could see the blood streaming down Coleman=s face.
Because there is a long history of animosity between appellant and Collier, the defense claims, appellant and Collier Apass[ed] words@ and came Atowards one another.@ According to the testimony of defense eyewitnesses, Collier taunted appellant with the words, AOh, ‑‑‑‑, you got a gun. Shoot me. Shoot me.@ Collier then taunted appellant with AYeah, I did it. And your mother is next.@
Although appellant admits both he and Collier swung at each other, he denies actually getting into a fight with Collier or threatening Fire Department personnel. He testified he knew the people inside the ambulance were Aambulance people@ trying to help Coleman. He acknowledged asking A[w]hich one of you . . . did this,@ but claims his question was not directed Atowards the firefighters.@ Along with his mother and brother, he testified he only carried a BB gun the day of the incident.
Appellant was indicted for the offense of aggravated assault on a public servant. The indictment further alleged appellant had a prior felony conviction. A jury found appellant guilty as charged after defense counsel requested instructions on two lesser included offenses which were denied by the trial court. The jury assessed punishment at confinement in the Texas Department of Criminal Justice Institutional Division for fifteen years. Appellant gave timely notice of appeal.
DISCUSSION
Asserting two points of error, appellant contends the trial court erred by failing to instruct the jury on the lesser included offenses of assault and deadly conduct. See Tex. Pen. Code Ann. '' 22.01(a)(2) and 22.05(a), (c) (Vernon 2003).[1] Because the trial court failed to instruct the jury on the requested instructions, he claims, reversal is required. Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (en banc). We agree.
1. Standard of Review and Waiver
The trial judge has the legal duty and responsibility to prepare for the jury a proper charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003). We review the alleged charge error by answering two questions: (1) whether error actually existed in the charge; and (2) whether sufficient harm resulted from the error to result in reversal. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).
Article 37.08 codifies the common-law lesser included offense and provides that in a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense. Tex. Code Crim. Proc. Ann. art. 37.08 (Vernon 1981). Article 37.09 provides the test for determining whether an offense is a lesser included offense pursuant to article 37.08. Id. at art. 37.09. The Texas Court of Criminal appeals has articulated the test as follows:
[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and
second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense.
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (emphasis added).
Appellant has properly preserved error under article 36.15 of the Code of Criminal Procedure. To preserve error under article 36.15, appellant Amay, by a special requested instruction, call the trial court=s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court=s charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.@ Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2003). Thus, a defendant preserves error under article 36.15 if the request is specific enough to put the trial court on notice of an omission or error in the charge. Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (en banc); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (en banc); Ford v. State, 38 S.W.3d 836, 841 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d); Brazelton v. State, 947 S.W.2d 644, 647 (Tex. App.CFort Worth 1997, no writ). Indeed, appellant has also preserved error under the more lenient standards of article 36.14. Under that article, all that is necessary to preserve error is an objection to the charge and an adverse ruling by the court. Arana v. State, 1 S.W.3d 824, 826 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).
The purpose of articles 36.14 and 36.15 is to place the trial judge on notice of what aspects of the charge the defendant regards as defective and to afford the judge an opportunity to correct the charge before reading it to the jury. Brown v. State, 716 S.W.2d 939, 943 (Tex. Crim. App. 1986) (en banc). Therefore, neither article 36.14 nor 36.15 require the requested charge to be in perfect form; it must only be sufficient to call the error to the trial court=s attention. Ford, 38 S.W.3d at 841.
Defense counsel requested, in open court, the lesser included charges of deadly conduct and assault before the trial judge read the charge to the jury. The judge promptly denied the request. Defense counsel stated:
Judge, we are going to request a lesser included charge on B first of all. Deadly conduct. We believe that was raised, deadly conduct, section 22.03 of the Penal Code. I believe that issue was raised by the evidence in the case. And we also include a request of a lesser included charge of simple assault, 22.01, assault by threat. Because we don=t believe there was evidence produced to show that if the jury does believe that a B B gun was involved that it was a firearm. No evidence whatsoever [was] produced on that. So we would ask for a lesser included charge on that also.
This request was sufficient to preserve error under articles 36.15 and 36.14 because it was sufficiently specific to call the trial court=s attention to the omission in the charge. See Ford, 38 S.W.3d at 841. If the trial court refuses to include the requested charge, the failure to do so preserves the issue for appeal. Id.
Moreover, a trial court has the duty and responsibility to instruct on the Alaw applicable to the case.@ Ford, 38 S.W.3d at 840. In discharging this duty, the trial court is authorized to sua sponte include a charge on a lesser offense. Id. Indeed, a Atrial court is not restricted to submitting lesser included offenses only when the defendant has properly requested them.@ Id.
Because we find appellant=s request sufficiently informed the trial court regarding the omission in its proposed charge, and because the trial court was authorized to include such a charge even if not properly requested, we find appellant did not waive review of the trial court=s omission. Therefore, we address the two prongs of Rousseau.
2. The first prong of Rousseau
The State concedes the first prong of the test, that assault and deadly conduct are lesser included offenses of aggravated assault on a public servant.[2] See, e.g., Bell v. State, 693 S.W.2d 434, 437B39 (Tex. Crim. App. 1985) (reckless conduct is a lesser included offense of assault by threat with a deadly weapon); Sibley v. State, 956 S.W.2d 832, 835 (Tex. App.CBeaumont 1997, no pet.) (deadly conduct is a lesser included offense of aggravated assault); Johnson v. State, 828 S.W.2d 511, 516 (Tex. App.CWaco 1992, pet. ref=d) (reckless conduct may be a lesser included offense to aggravated assault); McElhaney v. State, 899 S.W.2d 15, 17 (Tex. App.CTyler 1995, pet. ref=d) (assault is a lesser included offense of aggravated assault); Ford, 38 S.W.3d at 845 (deadly conduct is a lesser included offense of aggravated assault).
The issue, therefore, is whether some evidence exists that would permit a jury to rationally find that if appellant was guilty, he was guilty only of one of the lesser offenses.
3. The second prong of Rousseau
When addressing the second prong of the Rousseau test, we focus on whether any evidence exists in the record that would permit a rational jury to find appellant guilty only of assault or deadly conduct. See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Anything more than a scintilla of evidence is sufficient to entitle appellant to a lesser charge. Id. All trial evidence should be considered to determine if there is more than a scintilla of evidence to support the requested charge. Id. The defense is entitled to the charge regardless of which party offered the evidence, and regardless of whether the evidence was weak, impeached, or contradicted. Bell, 693 S.W.2d at 442.
Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances. Fuentes v. State, 880 S.W.2d 857, 860 (Tex. App.CAmarillo 1994, pet. ref=d). Thus, the issue of whether appellant was recklessCthat is, whether he was aware of, but consciously disregarded a substantial and unjustifiable risk that injury could occur[3]Cis a conclusion that must be drawn through inference from all the circumstances by the trier of fact. See Dillon, 574 S.W.2d at 94B95. Recklessness is presumed if the actor knowingly pointed a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. Tex. Pen. Code Ann. ' 22.05(c) (Vernon 2003).
Whether evidence justifies a lesser included offense charge is a function of (1) whether anything more than a scintilla of evidence either affirmatively refutes or negates an element of the greater offense, or (2) whether evidence on the issue is subject to two different interpretations, one of which negates or rebuts an element of the greater offense. Arevalo v. State, 943 S.W.2d, 887, 889 n.5 (Tex. Crim. App. 1997).
At trial, seven witnesses testified regarding appellant=s weapon. Of the four who testified the weapon looked real, oneCan ex-Marine familiar with gunsCtestified the weapon was a bronze, dark brown, or black firearm; one testified it was a Ahandgun@; one testified it was a silver firearm; and one testified it looked Alike a .380 automatic,@ but that he really did not know what kind of gun it was. Four witnesses testified Collier never displayed fear at seeing the weapon, and three testified the weapon was only a BB gun. From this testimony, we conclude there is more than a scintilla of evidence that the weapon brandished by appellant was not a deadly weapon, an element of the charged offense.[4]
Several witnesses also testified regarding whether appellant Athreatened@ the firefighters. Two testified appellant pointed the firearm directly at Valdez, Hernandez, and the complainant; four testified he never pointed his weapon at the firefighters and never verbally threatened the firefighters in any way; and three testified he Awaved@ the weapon back and forth carelessly. From this testimony, we conclude there is more than a scintilla of evidence that appellant either did not threaten complainant at all, or that he, at most, was merely reckless.
Finally, several witnesses testified regarding whether appellant Athreatened@ the firefighters with his comment, Awhich of you . . . did this?@ Appellant, his brother, and Collier all testified appellant directed the comment to Collier and his friends; complainant and the firefighters all testified he directed the comment to them. Even the firefighters acknowledged, however, that it was not unusual for persons in extremely stressful situations, such as appellant, to be upset, uncontrolled, concerned, and highly agitated. Several witnessesCeven the State=sCtestified appellant appeared to be under the misperception that someone had deliberately injured Coleman and that he Awas looking for that person.@ From this evidence, we conclude there is more than a scintilla of evidence from which a rational jury could conclude appellant lacked the culpable mental state to threaten complainant.
Because we conclude there is more than a scintilla of evidence from which a rational jury could conclude the weapon in question was a BB gun rather than an automatic pistol; appellant Awaved@ the gun recklessly, rather than pointed it threateningly; and appellant lacked the culpable mental state to threaten complainant, we find the evidence justifies inclusion of appellant=s two requested lesser included offenses. See Bignall, 887 S.W.2d at 23. Indeed, the jury could have found either that (1) appellant threatened complainant with a firearm (aggravated assault); (2) appellant threatened complainant with a BB gun (assault); (3) appellant did not threaten complainant, but was reckless, with a firearm (deadly conduct); (4) appellant did not threaten complainant, but was reckless, with a BB gun (no crime); or (5) appellant did not threaten complainant, nor was he reckless, with a firearm or BB gun (not guilty).
Therefore, the trial court erred when it failed to instruct the jury on these offenses.
HARM ANALYSIS
A judgment will not be reversed based on a charge error unless the error was Acalculated 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. art 36.19 (Vernon 1981). When an appellate court finds charge error, it must determine whether the error caused sufficient harm to require reversal. Benge v. State, 94 S.W.3d 31, 37 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (citing Hutch v. State, 922 S.W.2d 166, 170B71 (Tex. Crim. App. 1996)).
The degree of harm necessary for reversal depends upon whether the error was preserved. Benge, 94 S.W.3d at 37; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh=g). Error properly preserved will require reversal as long as the error is not harmless. Benge, 94 S.W.3d at 37. This means Aany harm, regardless of degree, is sufficient to require reversal.@ Id.; see also Almanza, 686 S.W.2d at 171.
In conducting the harm analysis, a reviewing court may consider the following factors: (1) the charge itself; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Benge, 94 S.W.3d at 37.
Because appellant preserved error in this case, we determine whether the error caused any harm, regardless of degree. Id. Harm exists when the penalty imposed for the charged offense exceeds the potential penalty for the lesser included offense. See Bignall v. State, 899 S.W.2d 282, 284 (Tex. App.CHouston [14th Dist.] 1995, no pet.). Harm also generally exists whenever the failure to submit a lesser included offense leaves the jury with the sole option of either convicting defendant of the greater offense or acquitting him. Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995).
Here, appellant claims he was harmed because he received a sentence in excess of that which would have been imposed for the lesser included offenses. Additionally, he argues the jury was unlikely to acquit him after learning of his prior felony conviction and learning how he frightened the paramedics, even if it believed his testimony regarding the BB gun and his state of mind; thus, the jury had no alternative but to find him guilty of aggravated assault. We agree.
If appellant had been convicted of deadly conduct, his maximum punishment would have been confinement in a county jail for one year and a $4,000 fine.[5] If he had been convicted of assault, his maximum punishment would have been a $500 fine.[6] Because the penalty for aggravated assault on a public servant exceeds both the penalty for deadly conduct and the penalty for assault, appellant indeed suffered harm.[7] See Benge, 94 S.W.3d at 37 (appellant suffered sufficient harm for reversal when appellant was sentenced to one year=s confinement for deadly conduct, but the maximum penalty for reckless driving would have only been confinement for 30 days and a $200 fine).
Appellant was also harmed because the jury was not permitted to fulfill its role as fact-finder to resolve the factual disputes regarding appellant=s weapon and intent. Rather, it was left with the sole option of either convicting appellant of aggravated assault or acquitting him. See, e.g., Beck v. Alabama, 447 U.S. 625, 634, 100 S. Ct. 2382, 2388 (1980) (noting that a jury, believing defendant to have committed some crime, but given only the option to convict him of a greater offense, may choose to find a defendant guilty of the greater offense, rather than to acquit him altogether, even though the jury may have a reasonable doubt defendant really committed the greater offense); Saunders, 913 S.W.3d at 572 (noting that A[i]t is at least arguable that a jury that believed the defendant committed an uncharged lesser included offense, but unwilling to acquit him of all wrongdoing, and therefore inclined to compromise, would opt for a lesser included offense that was submitted rather than convict him of the greater offense.@).
The Almanza court explained the statutory harmless error analysis for charge error:
Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is Acalculated to injure the rights of defendant,@ which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.
Almanza, 686 S.W.2d at 171. The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).
Because the jury=s verdict was directly and adversely influenced by the lack of options it was given in the jury charge, we cannot say with confidence that the error in the charge did not cause some harm to appellant. Accordingly, the statutory standard for reviewing error in the charge requires us to set aside the verdict and remand the case for a new trial. See id. at 788.
We sustain both of appellant=s points of error. The judgment of guilt is reversed and the case is remanded to the district court for a new trial.
/s/ John S. Anderson
Justice
Judgment rendered Memorandum Opinions filed September 23, 2003. (Guzman, J., concurs in the result only).
Panel consist of Justices Anderson, Seymore and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b)
[1] A person commits assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. ' 22.01(a) (Vernon 2003). A person commits deadly conduct if he Arecklessly engages in conduct that places another in imminent danger of serious bodily injury.@ Id. at ' 22.05(a). Recklessness and danger are presumed if the actor Aknowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.@ Id. at ' 22.05(c).
[2] An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury exists; (3) it differs from the offense charged only in the respect that a less culpable mental state is required; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. art. 37.09 (Vernon 1981).
AAggravated assault on a public servant@ requires the State to prove appellant (1) intentionally or knowingly threatened another (2) with imminent bodily injury (3) by using or exhibiting a firearm, and (4) the complainant is a public servant; Aassault@ requires the State to prove appellant (1) intentionally or knowingly threatened another (2) with imminent bodily injury; and Adeadly conduct@ requires the State to prove appellant (1) recklessly engaged in conduct that placed another in (2) imminent danger of serious bodily injury. Tex. Pen. Code Ann. '' 22.02, 22.01, and 22.05 (Vernon 2003).
[3] See Tex. Pen. Code Ann. ' 6.03(c)(Vernon 2003); Ford, 38 S.W.3d at 845 n.6.
[4] Subsection 22.02 of the Texas Penal Code, defining Aaggravated assault,@ uses the term Adeadly weapon.@ Tex. Pen. Code Ann. ' 22.02 (Vernon 2003). A Adeadly weapon@ is defined as a firearm or anything manifestly designed to inflict death or serious injury. Id. at ' 1.07(a)(17)(A). A Afirearm@ is defined as Aany device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.@ Id. at ' 46.01(3). A BB gun does not fit the definition of a deadly weapon.
[5] Deadly conduct is punishable as a class A misdemeanor. Tex. Pen. Code Ann. ' 22.05(e) (Vernon 2003). The penalty for a class A misdemeanor is (1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both the fine and confinement. Id. at ' 12.21.
[6] Assault by threat is punishable as a class C misdemeanor. Tex. Pen. Code Ann. ' 22.01(c) (Vernon 2003). The maximum penalty for a class C misdemeanor is a $500 fine. Id. at ' 12.23.
[7] Aggravated assault against a public servant is punishable as a first degree felony. Tex. Pen. Code Ann. ' 22.02(b)(2). The penalty for a first degree felony is imprisonment for life or for a term no longer than 99 years or less than five years; in addition to imprisonment, the person may also receive a fine not to exceed $10,000. Id. at ' 12.32(a) and (b).