James Harold Thomas v. State

Opinion issued December 5, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00279-CR
———————————
JAMES HAROLD THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1197921

MEMORANDUM OPINION

A jury convicted appellant James Harold Thomas of aggravated assault with

a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a), 22.02(a)(2) (West

2011). Thomas pleaded true to two enhancement allegations, and the trial court
assessed punishment of 15 years in prison. On appeal, Thomas raises two issues,

arguing that the trial court erred by admitting evidence of two prior criminal

convictions during the guilt-or-innocence phase of trial and by failing to limit the

definition of “knowingly” in the jury charge to the pertinent conduct of the

underlying offense of aggravated assault.

Finding no harm sufficient to require a reversal, we affirm.

Background

Honey Gray was waiting for a bus with her young sons when she saw a man

she did not know cross the street. It was a weekday evening in January, and the

sun had already set. The man, identified at trial as appellant James Thomas,

walked behind Gray and her sons, spit on the ground, walked farther away, and

then stared at Gray and the boys, who boarded the bus. Near the back of the bus

was a machine that allows passengers to reload electronic fare cards. The boys

took a seat behind the machine while Gray reloaded her fare card. She then

walked to the front of the bus to pay the fare. As she returned to the rear of the

bus, she saw Thomas, who was sitting near her children, speaking to them. Gray

asked Thomas not to speak to her children, and he replied, “I know your kids.

They make fun and pick with me all the time.”

Gray was frightened by Thomas, and she instructed her sons to move to

another seat. She moved toward the back of the bus without threatening Thomas in

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any way. A woman seated nearby stood up between them, raised her hands

defensively, and told Thomas to leave Gray and her children alone. Thomas

shoved the woman, who shoved him back, pushing him into a seat. Gray later

testified neither that woman nor anyone else moved toward Thomas or tried to hit

him after he fell into the seat. But Thomas got up and started to push the woman

again, as if “he wanted to fight.”

Thomas then opened his coat and removed a knife that Gray described as “a

homemade shank.” She screamed, “He has a knife.” As Thomas brandished the

knife in her direction, Gray grabbed the other woman’s coat “to pull her back.”

The bus driver observed through his rearview mirror that Thomas was wielding a

knife in a stabbing motion. At trial, Gray said that based on the way he wielded

the knife directly at her and the other woman, Thomas was trying to stab someone

and intended to do bodily harm. Gray did not realize she had been cut until she felt

something dripping down her face and heard her children screaming. She looked

into a mirror and saw a gash on her face.

The bus driver stopped the bus, and everyone got off. An ambulance arrived

and took Gray to the hospital. Thomas made no attempt to flee; rather, he

remained near the bus. Police arrived within minutes, and Metro Police

Department Officer J. Wiggins, who was first on the scene, asked who had the

knife. The passengers pointed to Thomas. Wiggins approached Thomas, patted

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him down, and found a knife in his pocket. The officer placed Thomas under

arrest.

Metro Police Department Officer M. Stoneham arrived later. Stoneham

searched Thomas and put him in his patrol car. Wiggins gave Stoneham the knife.

At trial Gray testified that this knife was the one she saw Thomas use on the bus,

and Stoneham identified it as the knife that Wiggins gave him.

Stoneham testified that he had been trained to deal with mentally ill people.

He did not notice anything about Thomas’s behavior or appearance that warranted

mention in the offense report. Thomas was cooperative and did not blurt out any

remarks or statements. Gray testified similarly about Thomas’s demeanor, saying

that his speech was not slurred and he was not “talking gibberish.”

Thomas was charged with aggravated assault, but trial of his case was

delayed and reset several times due to concerns about his mental health, sanity, and

competency to stand trial. He was initially found incompetent to stand trial, and he

received treatment for his mental illness in two state hospitals. He was tried three

years after the offense, when he was determined to be competent to stand trial and

sane for the purposes of a criminal prosecution.

At trial, his counsel’s defensive theory was that Thomas was not guilty by

reason of insanity. The trial record shows numerous outbursts from Thomas, who

often blurted out that he was not insane. His counsel made a record of the

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meandering and confusing notes that Thomas wrote to him during trial. Relying

primarily on the notes and letters he received before and during trial, counsel

argued that Thomas was incompetent to stand trial. The court denied his request to

admit Thomas’s mental-health medical records into evidence. However, in an

attempt to prove the insanity defense, Thomas’s attorney called as a witness Dr.

Laval, a psychologist who had examined him.

Dr. Laval testified that he had examined Thomas twice in 2011 to determine

his sanity. He met with Thomas for face-to-face interviews on two separate

occasions, and he reviewed various medical records, some of which indicated he

had been treated for mental illness as far back as the 1970s. Thomas’s records also

showed that he was treated at state hospitals for schizophrenia for more than a year

between his arrest and trial. Dr. Laval testified that schizophrenia is a chronic,

psychotic disorder, which is treatable but incurable. He explained the symptoms of

schizophrenia include paranoid thoughts, delusions, hallucinations, and tangential

thought process. He testified that a person having a schizophrenic delusion might

believe a person is trying to hurt him when in fact the person is not doing so.

However, when a person with schizophrenia is not experiencing a psychotic

episode, he may speak normally and have logical thought processes.

Dr. Laval testified about the nature of a sanity evaluation, which seeks to

determine “whether there was anything discussed in the offense report that would

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obviously render this person illogical, insane, or psychotic at the time of the

alleged offense, or whether that is not included.” He testified that Thomas

informed him that he was homeless and not taking medication for his

schizophrenia in 2009 when he assaulted Gray on the bus. Dr. Laval surmised that

Thomas may have been experiencing some hallucinations at the time of the

offense. Dr. Laval concluded that at the time of the offense, Thomas was under the

influence of a psychotic episode, was suffering from a severe mental illness, and

may not have been able to control his impulses and conform his behaviors to the

requirements of law. Dr. Laval said that Thomas told him that Gray was bothering

him, he felt harassed, and he believed he was acting in self-defense.

Nevertheless, Dr. Laval concluded that Thomas’s severe mental illness did

not prevent him from understanding that his actions were wrong. Based on this,

Dr. Laval concluded that Thomas had schizophrenia but nevertheless was sane at

the time of the offense and during both of their interviews, in part because Thomas

attempted to justify his actions by claiming he acted in self-defense.

Thomas steadfastly expressed his belief that he was not insane at the time of

trial or at the time of the offense, and he chose to testify against the advice of his

counsel. Outside the presence of the jury, defense counsel objected to the State’s

intention to impeach Thomas with evidence of two prior convictions: a murder

conviction from 1980 and a misdemeanor conviction for unlawfully carrying a

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weapon in 1998. The court did not immediately rule on these objections and stated

it would consider them depending on Thomas’s testimony.

Thomas testified that he was a 66-year-old military veteran. When asked if

he had been staying in the Harris County jail, he said, “Yes, sir. First time.” He

testified that he had been staying in a mental health clinic in the Harris County jail,

and he had received medication there to treat paranoid schizophrenia. Prior to the

offense and since he was “discharged from prison June 14, 2003,” he had been

living at the YMCA. He also said that he spent time at the public library where,

“They know me real good. I don’t cause no trouble.”

The account he gave of what happened on the day of the offense differed

from the account offered by Gray. Thomas admitted speaking to the children, and

he explained that he felt they were not being properly supervised and were in some

danger because they were playing too near the street. He said he got on the bus to

avoid the woman and her children, and once he was on the bus several people

attacked him, physically restraining and assaulting him and threatening to maim

him with a knife. He admitted to having and using a knife, but he said he did not

brandish it until after the people assailed him. He repeatedly asserted that he was

not the first aggressor. He admitted cutting a woman on the day in question, but he

did not recognize Gray as the woman he cut.

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 Thomas acknowledged that it would be wrong to threaten or cut someone

with a knife unless he felt threatened by another’s “use of deadly force.” He also

admitted that he intended to hurt the woman he cut with the knife. He said he was

emotionally distressed because he “had been hurt in the past.”

Before the State began cross-examination, the prosecutor approached the

bench and argued that the prior convictions were relevant. The State was

permitted to ask Thomas if he had been convicted of the two prior offenses, which

he admitted. When the State began questioning Thomas as to the facts of the

misdemeanor conviction, the court sustained Thomas’s objection and instructed the

jury to disregard the question and Thomas’s answer. The court denied Thomas’s

request for a mistrial.

The jury found Thomas guilty of aggravated assault. Thomas waived a jury

as to sentencing and pleaded true to two enhancements alleged by the State. The

court assessed his punishment at 15 years in prison, and Thomas appealed.

Analysis

I. Admission of evidence of extraneous offenses

In his first issue, Thomas argues that the trial court erred by allowing the

State to cross-examine him during the guilt-or-innocence phase of trial about two

prior criminal convictions. We review a trial court’s admission of extraneous

offense evidence under an abuse of discretion standard. De La Paz v. State, 279

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S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial court’s ruling is

within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and

the trial court’s ruling will be upheld.” Id. at 343–44 (quoting Montgomery v.

State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).

Outside the presence of the jury, Thomas informed the court that he wished

to testify, despite his attorney’s advice to remain silent. The State informed the

court that it wished to impeach Thomas regarding a prior murder conviction and a

prior misdemeanor conviction for unlawfully carrying a weapon. Thomas objected

on the grounds that the 1980 murder conviction was too remote to be admissible.

See TEX. R. EVID. 609(b). Moreover, he argued that admission of the murder

conviction would be highly prejudicial and would improperly influence the jury to

make its decision on an emotional, rather than evidentiary, basis. See TEX. R.

EVID. 403. With respect to the State’s use of the 1998 misdemeanor conviction of

unlawfully carrying a weapon, Thomas argued that it was inadmissible for

impeachment purposes because it was neither a felony nor a crime of moral

turpitude. See TEX. R. EVID. 609(a). The court did not rule on the objections at

that time but said that it would consider the objections and apply the Rule 403

“balancing test” after hearing Thomas’s testimony.

When a defendant testifies at trial, he is subject to cross examination in the

same manner as any other witness. Bowley v. State, 310 S.W.3d 431, 434 (Tex.

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Crim. App. 2010). Rule 609 of the Texas Rules of Evidence provides that

evidence of a witness’s prior conviction of a felony or crime of moral turpitude

shall be admitted for purposes of impeachment if the court determines that the

probative value of admitting the conviction outweighs its prejudicial effect. TEX.

R. EVID. 609(a); Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d). The court must balance probative value and prejudice by

considering (1) the prior conviction’s impeachment value; (2) its temporal

proximity to the crime on trial, and the defendant’s subsequent criminal history; (3)

the similarity between the prior offense and the present offense; (4) the importance

of the defendant’s testimony; and (5) the importance of the credibility issue. Theus

v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Hernandez v. State, 976

S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980 S.W.2d 652

(Tex. Crim. App. 1998). However, when the conviction is more than 10 years old,

Rule 609(b) requires the court to conduct a different analysis. Hernandez, 976

S.W.2d at 755. In such a situation, before a court may admit such evidence, it

must determine that “the probative value of the conviction supported by specific

facts and circumstances substantially outweighs its prejudicial effect.” TEX. R.

EVID. 609(b). This ten-year period is measured from the date of trial in which the

prior conviction is to be offered as evidence, rather than the date of the charged

offense, because the evidence is relevant under Rule 609, if at all, to show whether

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the defendant is credible at trial. See Davis v. State, 545 S.W.2d 147, 150 (Tex.

Crim. App. 1976).

As to the murder conviction, Thomas argues that more than 10 years had

passed from both the date of conviction and the end of his confinement because he

was sentenced to 20 years in prison in 1980, and his trial was in 2012. He

therefore contends that the murder conviction should have been evaluated under

Rule 609(b) and that its probative value had to substantially outweigh its

prejudicial effect. However, at trial Thomas testified that he was released from

prison in 2003, and at a pretrial hearing he informed the court that he did 30 years

“in and out” on his murder charge. The State concedes that more than 10 years had

passed since Thomas’s murder conviction, but it argues that if Thomas had been

released on parole and had such parole revoked, it is possible that his confinement

could have extended into 2002, bringing the murder conviction within Rule

609(b)’s 10-year time limit. The State further argues that the Theus factors weigh

in favor of admission of the murder conviction, pursuant to Rule 609(a).

We ultimately need not determine the evidentiary issue presented under Rule

609, because even if the court erred by admitting evidence of Thomas’s murder

conviction, we conclude that the admission of the evidence was not harmful in the

circumstances of this case.

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 The erroneous admission of evidence is subject to a harm analysis under

Rule 44.2(b) of the Texas Rules of Appellate Procedure. Jabari v. State, 273

S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Under Rule

44.2, we disregard any non-constitutional error, defect, irregularity, or variance

that does not affect substantial rights. TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d

at 754. A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. Morales v. State, 32

S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing whether the error had a

substantial and injurious effect on the jury’s verdict, the court of appeals must

consider the entire record, including overwhelming evidence of guilt, whether the

State emphasized the error, defensive theories, jury instructions, and closing

arguments. See Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002).

An appellate court should not overturn a criminal conviction for non-constitutional

error if the court, after examining the record as a whole, has fair assurance that the

error did not influence the jury or had only a slight effect. See Morales, 32 S.W.3d

at 867.

In this case, there was overwhelming evidence of Thomas’s guilt. Gray

testified that Thomas assaulted her with a knife on the bus. She identified Thomas

in open court, and she identified the knife. The jury not only saw photographs of

Gray’s injury, but they also had the opportunity to see the permanent scar on her

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face when she testified. The driver of the bus testified that he saw Thomas

swinging the knife. Officer Wiggins testified that when he asked the passengers

who had the knife, they pointed to Thomas. He then found the knife on Thomas’s

body when he conducted a pat-down search.

Thomas had two defensive theories at trial—one advanced by his attorney

and one advanced through his testimony—but neither theory denied that he

committed the alleged act. His attorney’s theory was that Thomas was not guilty

by reason of insanity, that is, he did cut Gray’s face but he lacked the requisite

culpable mental state because of his insanity. Thomas testified that he was not

guilty because he acted in self-defense, that is, he did cut a woman’s face but his

actions were excused because the people on the bus allegedly attacked him first.

In its charge, the court instructed the jury to consider Thomas’s prior

convictions, if at all, only for the purpose of impeaching his credibility, and not for

any other purpose. The court also expressly instructed the jury that the evidence of

prior convictions “cannot be considered by you against the defendant as any

evidence of guilt in this case.” Introduction of the fact of Thomas’s prior murder

conviction undoubtedly had a prejudicial effect. See Lott v. State, 123 Tex. Crim.

591, 596, 60 S.W.2d 223, 225 (1933) (“[T]he frailties of human nature are such

that it is expecting much of a jury if they can disabuse their mind of the fact that

they are again trying one who has theretofore been convicted or charged with

13
crime.”). However, we must presume that the jury followed the court’s

instructions, and we thus presume that the jury did not consider Thomas’s prior

conviction as evidence that he was guilty of committing the aggravated assault of

Gray. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Jones v.

State, 264 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

Finally, we note that even though Thomas volunteered the testimony that he

was released from prison in 2003 before the State introduced evidence of his prior

felony conviction, the murder conviction was not emphasized at trial. The State

asked only a single question about the conviction and did not mention it at all in

closing arguments. Considering the record as a whole, we conclude that the

admission of evidence of Thomas’s prior murder conviction did not affect his

substantial rights and was not reversible error. See TEX. R. APP. P. 44.2(b).

As to the misdemeanor conviction for unlawfully carrying a weapon, the

State argued to the court that it was not being offered to Thomas’s credibility, see

TEX. R. EVID. 609, or as character conformity evidence, but as a “signature crime”

because it showed a pattern of Thomas brandishing weapons when he is angry, see

TEX. R. EVID. 404(b). Among other things, the State also argued that because

Thomas testified that he did not know his conduct was wrong, the evidence of the

conviction was relevant and necessary to show to his knowledge of the

wrongfulness of his conduct. Thomas reurged his Rule 403 objection to this

14
evidence. The court ruled that evidence of the prior conviction for unlawfully

carrying a weapon would be admissible, however the court cautioned the State that

its ruling was “very limited” and the evidence could not be used as character

conformity evidence. We agree with Thomas that this misdemeanor conviction

could not have been properly admitted under Rule 609 because it was neither a

felony nor a crime of moral turpitude. See TEX. PENAL CODE ANN. § 46.02 (West

2011) (offense of unlawful carrying of weapons is Class A misdemeanor unless it

is committed on any premises license or issued a permit for the sale of alcoholic

beverages); Thomas v. State, 482 S.W.2d 218, 219 (Tex. Crim. App. 1972)

(misdemeanor offense of unlawfully carrying arms is not an offense involving

moral turpitude). But this is not the basis upon which the State defends the

admissibility of the evidence.

The State offered the misdemeanor unlawful-carrying conviction as

evidence that Thomas knew his conduct was wrong. Rule 404 prohibits the

admission of evidence of “other crimes, wrongs, or acts . . . in order to show action

in conformity therewith.” TEX. R. EVID. 404(b). But such evidence “may be

admissible” for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

Thomas’s prior conviction for unlawfully carrying a weapon was relevant to the

disputed fact issue concerning his knowledge that his behavior was wrong. His

15
defensive theory of insanity relied nearly entirely on the contention that he did not

know that his use of a knife on the bus that day was wrong. But his prior

conviction for unlawfully carrying a weapon had some tendency to show his

knowledge of the wrongfulness of his actions because he had previously been in

trouble with the law in a similar circumstance. See TEX. R. EVID. 401 (defining

relevant evidence).

Thomas also objected to the admission of this evidence under Rule 403,

arguing that it was highly prejudicial. In conducting a balancing test under Rule

403, a court considers (1) the testimony’s inherent probative value, (2) its potential

to impress the jury in some irrational but indelible way, (3) the amount of trial time

the proponent needs to develop such testimony, and (4) the proponent’s need for

the testimony. Montgomery v. State, 810 S.W.2d 372, 389–90 (Tex. Crim. App.

1990); see Herrera v. State, 11 S.W.3d 412, 417 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d). There is a presumption that relevant evidence is more probative

than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997);

see Herrera, 11 S.W.3d at 417. Here, as we have explained, the evidence was

relevant to rebutting Thomas’s defensive theory of insanity. Though the evidence

may have had some prejudicial influence because it shows that Thomas had

previously committed a crime, the court instructed the jury not to consider that as

evidence that he was guilty of the charged offense, and we presume the jury

16
followed the court’s instructions. See Colburn, 966 S.W.2d at 520. The State did

not dwell on this evidence: it asked two questions, one of which the jury was

instructed to disregard. Finally, as we have explained, this evidence was necessary

to rebut Thomas’s defensive theory of insanity. We hold that the trial court did not

err by admitting this evidence. Even if the admission of this evidence were error, it

would be harmless for the same reasons the admission of evidence of Thomas’s

murder conviction was harmless.

We overrule the issue challenging the admission of evidence of Thomas’s

prior convictions.

II. Charge error

In his second issue, Thomas argues that the trial court erred by overruling

his objection to the language in the charge defining “knowingly” in regard to a

person’s conduct. The jury charge included the following general instructions and

definitions regarding intent and knowledge:

A person acts intentionally, or with intent, with respect to a result of
his conduct when it is his conscious objective or desire to cause the
result.

A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly with respect to a result
of his conduct when he is aware that his conduct is reasonably certain
to cause the result.

The charge also included the following application paragraph:
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 Now, if you find from the evidence beyond a reasonable doubt that on
or about the 6th day of January, 2009, in Harris County, Texas, the
defendant, James Harold Thomas, did then and there unlawfully,
intentionally or knowingly cause bodily injury to Hon[e]y Gray by
using a deadly weapon, namely a knife, then you will find the
defendant guilty of aggravated assault, as charged in the indictment.

At the charge conference, Thomas objected to providing a definition of

“knowingly” as related to the “nature” of his conduct, arguing that aggravated

assault is a result-oriented offense and the instruction was therefore irrelevant to

the case. In response, the State argued that it was a proper definition, and the court

overruled the objection and denied the request to remove that sentence from the

charge. Thomas also noted for the record that he had no objection to the

instruction about “intent” with respect to the “result” of his conduct. On appeal,

the State concedes that the charge erroneously stated, “A person acts knowingly, or

with knowledge, with respect to the nature of his conduct or to circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist.” See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.

1994) (“It is error for a trial judge to not limit the definitions of the culpable mental

states as they relate to the conduct elements involved in the particular offense.”).

Rule 44.2 does not apply to jury-charge error. See Olivas v. State, 202

S.W.3d 137, 145 (Tex. Crim. App. 2006). The appropriate standard for all errors

in the jury charge, statutory or constitutional, is that set out in Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1984). Id. When charge error has been
18
properly preserved, reversal is required if the charge error resulted in “some” or

“any” actual harm to the defendant. O’Brien v. State, 89 S.W.3d 753, 756 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Arline v. State, 721 S.W.2d 348,

351 (Tex. Crim. App. 1986), and Almanza, 686 S.W.2d at 171); see Hill v. State,

265 S.W.3d 539, 543 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). “The

four-part analysis for assessing harm consists of reviewing (1) the entire jury

charge; (2) the state of the evidence, including the contested issues and weight of

probative evidence; (3) the arguments of counsel; and (4) any other relevant

information revealed by the record of the trial as a whole.” Hill, 265 S.W.3d at

543.

Considering the jury charge as a whole, we note that the charge correctly

defined “intent” in terms of the result of the actor’s conduct, and Thomas

specifically noted on the record at trial that he had no objection to this definition of

an alternative culpable mental state. As to the state of the evidence, we have

already explained how the overwhelming weight of the evidence and defensive

theories rendered the alleged evidentiary errors harmless. Similarly, the same

considerations militate in favor of a determination that the charge error did not

cause Thomas any actual harm. In addition, we note that Thomas testified that he

intended to harm Gray when he struck at her with a knife.

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 Finally, both Thomas’s counsel and the State emphasized the results-

oriented nature of the alleged offense in closing arguments. Defense counsel

argued that the State had to prove that Thomas intended to hurt Gray. The State

argued that it had proved that Thomas meant to cut Gray.

Considering the record as a whole and the relevant factors, we conclude that

the alleged jury-charge error was harmless. We overrule this issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

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