TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00007-CR
Justin Drake Cooper, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2014-223, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION
Justin Drake Cooper was charged with committing the felony offenses of
aggravated assault with a deadly weapon and assault family violence with a prior conviction
for assault family violence. See Tex. Penal Code §§ 22.01, .02. The indictment included
enhancement paragraphs alleging that Cooper had prior convictions for assault family violence
and aggravated sexual assault of a child. See id. §§ 22.01, .011, .02, .021. The jury found
Cooper guilty of both charges. Cooper elected to have the trial court assess his punishment and
pleaded true to the two enhancement allegations. The trial court sentenced Cooper to thirty
years’ imprisonment for both offenses. We will affirm the trial court’s judgments of conviction.
BACKGROUND
Cooper was charged with committing aggravated assault and assault family
violence. The victim in both charges was Elizabeth Hardcastle with whom Cooper had a dating
relationship. Regarding the day in question, Hardcastle testified that she drove Cooper to her
home and that Cooper was acting paranoid. When Hardcastle and Cooper arrived at her home,
Cooper continued to act in a paranoid manner before and after he went inside. While they were
inside her home, Hardcastle told Cooper that she was going to take him to his father’s home and
went to unlock the front door. When she reached the door, Cooper came up behind her, shut the
door “really fast and locked it,” “pushed [her] away,” and stabbed her in the chest with a knife.
After Hardcastle finished testifying, Dr. Marisa Mauro and Dr. John Fabian testified as expert
witnesses concerning Cooper’s affirmative defense of insanity, describing Cooper’s mental state
at the time of the offenses.
The jury charge included an instruction regarding the affirmative defense of
insanity and regarding voluntary intoxication. After considering the evidence at trial, the jury
found Cooper guilty of the charged offenses. Cooper appeals the trial court’s judgments of
conviction.
DISCUSSION
Insanity Defense
In his first three issues on appeal, Cooper asserts that the evidence is legally and
factually insufficient to support the jury’s implicit rejection of his insanity defense. More
specifically, Cooper contends that the evidence from the two expert witnesses established that he
was insane at the time in question and that the evidence was insufficient to establish that his
insanity was caused by voluntary intoxication.
Under the Penal Code, “[i]t is an affirmative defense to prosecution that, at the
time of the conduct charged, the actor, as a result of severe mental disease or defect, did not
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know that his conduct was wrong,” but the “term ‘mental disease or defect’ does not include an
abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Tex. Penal
Code § 8.01. Because insanity is an affirmative defense, a defendant has the burden of proving it
by a preponderance of the evidence. See id. § 2.04(d). This is “the same standard of proof as
that employed in civil cases.” Matlock v. State, 392 S.W.3d 662, 665 n.5 (Tex. Crim. App. 2013).
“Texas law excuses a defendant from criminal responsibility if he proves, by a preponderance of
the evidence, the affirmative defense of insanity.” Pham v. State, 463 S.W.3d 660, 671 (Tex.
App.—Amarillo 2015, pet. ref’d). “If the accused knows that his conduct is ‘illegal’ by societal
standards, then he understands that his conduct is wrong, even if, due to a mental disease or
defect, he thinks his conduct is morally justified.” Id.
“There is a general presumption of sanity and the defendant bears the burden of
proving, by a preponderance of the evidence, his insanity at the time of the conduct charged.”
Martinez v. State, 867 S.W.2d 30, 33 (Tex. Crim. App. 1993). Ultimately, the issue of whether
the insanity defense was proved is a decision lying within “the province of the jury, not only as
to the credibility of the witnesses and the weight of the evidence, but also as to the limits of the
defense itself.” Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994) (quoting Graham v.
State, 566 S.W.2d 941, 952 (Tex. Crim. App. 1978)). “The issue of insanity is not strictly
medical; it also invokes both legal and ethical considerations.” Id. at 877. “[O]nly the jury can
join the non-medical components that must be considered in deciding the ultimate issue.” Id.
at 878. Expert witnesses do not dictate the result. Graham, 566 S.W.2d at 949.
Although the Penal Code explains that insanity is an affirmative defense, Tex.
Penal Code § 8.01, the Code also clarifies that “[v]oluntary intoxication does not constitute a
defense to the commission of crime,” id. § 8.04. Further, the Code defines “‘intoxication’” as
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meaning a “disturbance of mental or physical capacity resulting from the introduction of any
substance into the body.” Id. “[I]f a pre-existing mental condition does not ‘in and of itself’
render the accused ‘legally insane,’ ‘then the recent use of intoxicants causing stimulation or
aggravation of the pre-existing condition to the point of insanity cannot be relied upon as a
defense to the commission of the crime itself.’” Dana v. State, 420 S.W.3d 158, 166 (Tex.
App.—Beaumont 2012, pet. ref’d) (quoting Evilsizer v. State, 487 S.W.2d 113, 116 (Tex. Crim.
App. 1972)). The voluntary-intoxication provision “nowhere limits the degree of attenuation that
might exist between the voluntary ingestion of a substance and a resulting mental disturbance,”
and “psychosis directly or indirectly caused by the use of the drug,” including through
withdrawal from the drug, “is included within the statutory definition of intoxication.” Afzal v.
State, 559 S.W.3d 204, 214 (Tex. App.—Texarkana 2018, pet. ref’d).
In reviewing the legal sufficiency of the evidence supporting an adverse finding
on an affirmative defense, reviewing courts first look for evidence that supports the jury’s
implied rejection of the defense and disregard all evidence to the contrary “unless a reasonable
factfinder could not disregard that evidence.” Matlock, 392 S.W.3d at 669. If no evidence
supports the jury’s implied finding, then appellate courts “search the record to see if the
defendant had established, as a matter of law,” the affirmative defense. Id. If the appellate
court’s review “reveals evidence supporting the defendant’s position” but also shows that the
evidence “was subject to a credibility assessment and was evidence that a reasonable jury was
entitled to disbelieve,” the appellate court may “not consider that evidence in” its matter-of-law
assessment. Id. at 670. Under that standard, a “defendant is entitled to an acquittal on appeal
despite the jury’s adverse finding on his affirmative defense only if the evidence conclusively
establishes his affirmative defense.” Id.
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“In the factual-sufficiency review of a rejected affirmative defense, an appellate
court views the entirety of the evidence in a neutral light, but it may not usurp the function of the
jury by substituting its judgment in place of the jury’s assessment of the weight and credibility
of the witnesses’ testimony.” Id. at 671. Under that standard, a reviewing “court may sustain
a defendant’s factual-sufficiency claim only if, after setting out the relevant evidence and
explaining precisely how the contrary evidence greatly outweighs the evidence supporting
the verdict, the court clearly states why the verdict is so much against the great weight of
the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.” Id. In those
circumstances, the reviewing “court may reverse the trial court’s judgment and remand the case
for a new trial.” Id. at 672. “Rarely will the fact-finder’s determination regarding an insanity
defense be overturned on appeal.” Afzal, 559 S.W.3d at 208. Because the fact-finder “is the
sole judge of the credibility and weight to be given to the testimony, [it] is free to believe or
disbelieve all or part of any witness’s testimony.” See id. If there is conflicting evidence,
reviewing courts “defer to the fact-finder’s determination regarding the weight and credibility of
those decisions because the fact-finder has the benefit of observing the witness’ actions and
demeanor.” Fisher v. State, 397 S.W.3d 740, 745 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d). “Evidence that is factually sufficient” to support a rejection of an insanity defense “is
necessarily legally sufficient.” Reyes v. State, 480 S.W.3d 70, 73 (Tex. App.—Fort Worth 2015,
pet. ref’d).
During the trial, Hardcastle testified that the police called her to ask if she
would pick Cooper up from a gas station “because he was causing disruption in town.” When
Hardcastle arrived at the gas station, Cooper “looked like he hadn’t slept in three days.” Further,
Hardcastle related that Cooper had used methamphetamine in the past and that she thought that
5
he was on methamphetamine when she picked him up, but she stated that Cooper denied having
taken any drugs for a few days. Hardcastle testified that Cooper asked her to drive him by the
grocery store because he dropped something there and that once they arrived at the store, he
walked behind a bush and recovered a glass object that she believed was “a meth pipe” because
she had seen one before. When describing the drive to her home, Hardcastle related that Cooper
could not stop moving between the front seat and the backseat and kept saying that there were
people chasing him and that there was a person in the tailgate of her truck. Similarly, when
discussing what happened when they arrived at her house, Hardcastle stated that Cooper jumped
out of her truck, searched the area around her home because he was “looking for somebody,”
stated that there were people outside chasing him, went through several rooms and closets in her
home, and called 911 to report that people were after him.
Cooper’s expert witness, Dr. Mauro, testified that “Cooper was insane at the time
of the alleged offense,” that he “did not know that his behavior was wrong” and “wasn’t capable
of knowing it was wrong because he was so” irrational at the time, that he did not form an intent
to hurt Hardcastle, that his “symptoms have remained extremely consistent and persistent and
chronic” over the years that she has interviewed him, “and that his condition is a more organic
mental health condition and not necessarily just attributed to some type of substance.” Further,
Dr. Mauro characterized Cooper as “very paranoid and hallucinating at the time of the alleged
offense” and as irrationally believing that people were following him. Moreover, Dr. Mauro
explained that Cooper has schizophrenia and could not have known his behavior was wrong due
to that condition because “he was so severely mentally ill at that time.” Dr. Mauro also related
the people with schizophrenia typically cannot sit still for very long.
6
Although Dr. Mauro admitted that Cooper was originally diagnosed “with
methamphetamine use disorder in remission in a controlled environment,” meaning that he had a
substance-use disorder in the past, she stated that she changed her diagnosis to schizophrenia
because substance-abuse psychosis “generally resolves within about one month after the
person has stopped taking the substance” and because he continued to exhibit delusions for
four years while he was in custody. Similarly, Dr. Mauro admitted that it was possible that
methamphetamine use could have induced Cooper’s behavior, but she did not think
methamphetamine use was the only contributing factor. Dr. Mauro testified that Cooper admitted
to regularly using methamphetamine and other drugs for years and that the side effects of using
methamphetamine include “excessive energy, . . . maybe not sleeping,” and persecutory
“delusions and hallucinations.” Further, Dr. Mauro testified that long-term methamphetamine
use can cause schizophrenia. Moreover, Dr. Mauro recalled that Cooper admitted that he used
methamphetamine on the day in question and related that Cooper could have been affected by
his methamphetamine use, but she reasoned that his use of methamphetamine likely had only
a minor impact on his mental state. Finally, Dr. Mauro testified that voluntary intoxication,
including withdrawal symptoms stemming from voluntary intoxication, is not a defense to
criminal behavior.
The State’s expert witness, Dr. Fabian, testified that two mental-health hospitals
had diagnosed Cooper with psychosis caused by methamphetamine use, that Cooper admitted
to regularly using methamphetamine years before the alleged offenses, that schizophrenia
and methamphetamine-induced psychosis have similar symptoms, and that methamphetamine
can trigger schizophrenia. Moreover, Dr. Fabian testified that he diagnosed Cooper with
schizophrenia that was caused, at least in part, by his methamphetamine use, and Dr. Fabian also
7
related that Cooper has a methamphetamine-use disorder and that he displayed psychotic
symptoms while on the drug. Additionally, Dr. Fabian explained that research has shown that
individuals can have methamphetamine-induced psychosis years after they stopped taking the
drug and that it was possible that Cooper’s prior methamphetamine use was still causing
his symptoms years later. Next, Dr. Fabian related that Cooper’s “substance-induced psychotic
condition turned into a more fixed-schizophrenia condition.”
Furthermore, Dr. Fabian stated that Cooper provided inconsistent statements
about whether he used methamphetamine on the day in question and that he told the police that
he used methamphetamine the day before. Additionally, Dr. Fabian explained that an individual
can experience withdrawal symptoms for a week or more after taking methamphetamine.
Although Dr. Fabian said that Cooper’s schizophrenia played “the significant part” on the day
in question and that he was likely insane at that time, Dr. Fabian also stated that Cooper’s
schizophrenia could have been caused by his long-term methamphetamine use; that his behavior
that day could have been impacted by his recent use of methamphetamine; that the
methamphetamine “made him more paranoid, leading to the violent offense”; and that “there is
likely evidence of methamphetamine-induced psychosis at the time of the instant offense.”
In his testimony, Dr. Fabian explained that Hardcastle stated that Cooper
was more paranoid and psychotic while using methamphetamine, that someone who uses
methamphetamine for long periods of time will know the effects of using that drug, and that
“Cooper knew about the effects of . . . methamphetamine and how it could lead to psychotic
symptoms of paranoia.” Further, Dr. Fabian explained that he concluded in his report that “[o]ne
could opine that insanity is moot because of the voluntary ingestion of methamphetamine.”
Finally, Dr. Fabian related that Cooper admitted that he once feigned mental illness to make
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money by selling the medicine that he was given. Cf. Moranza v. State, 913 S.W.2d 718, 726
(Tex. App.—Waco 1995, pet. ref’d) (highlighting evidence that defendant “was ‘faking’ his
symptoms to fabricate an insanity defense” when concluding “that the jury’s rejection of [the
defendant]’s insanity defense” was not “so against the weight and preponderance of the evidence
as to be manifestly unjust”).
As set out above, although both Dr. Mauro and Dr. Fabian agreed that Cooper
was likely legally insane at the time in question, there was conflicting evidence regarding what
role methamphetamine or methamphetamine withdrawal may have played in reaching that
mental state, and evidence was presented indicating that Cooper had taken methamphetamine
before the incident. Cf. Dominguez v. State, 661 S.W.2d 759, 761-62 (Tex. App.—El Paso 1983,
pet. ref’d) (noting that evidence depicted “a state of psychosis rising to the level of legal
insanity” but that there was issue of whether defendant’s mental condition “was triggered
by substance abuse amounting to voluntary intoxication” and concluding that evidence “was
sufficient to support a jury conclusion that continued use of the medication . . . constituted
voluntary intoxication”); see also Dana, 420 S.W.3d at 166, 168 (explaining that use of
methamphetamine “tended to rebut Dana’s insanity defense” given testimony addressing effect
that methamphetamine would have on defendant’s condition). While recognizing that it was the
jury’s duty to evaluate the weight and credibility of the conflicting evidence, we conclude based
on the evidence above that the jury’s determination that Cooper failed to prove insanity is not so
against the great weight and preponderance of the evidence as to be manifestly unjust. See
Lantrip v. State, 336 S.W.3d 343, 348 (Tex. App.—Texarkana 2011, no pet.); see also Moranza,
913 S.W.2d at 725-26 (affirming conviction and concluding that jury’s rejection of insanity
defense was not manifestly unjust despite defendant’s diagnosis of paranoid schizophrenia and
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despite expert testimony that defendant was legally insane given other evidence that was
presented at trial). The presence of some evidence supporting Cooper’s “affirmative defense
does not render the factual sufficiency of the jury’s” rejection of that defense “manifestly unjust,
conscience-shocking, or clearly biased.” See Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App.
2015). Because the evidence is factually sufficient to support the jury’s rejection of his insanity
defense, the evidence is also necessarily legally sufficient. See Reyes, 480 S.W.3d at 73.1
For these reasons, we overrule Cooper’s first three issues on appeal.
Voluntary-Intoxication Instruction
In his fourth issue on appeal, Cooper contends that there were errors in the
abstract and application portions of the jury charge pertaining to the affirmative defense of
insanity.
The relevant portion of the abstract section reads as follows:
It is an affirmative defense to prosecution that, at the time of the conduct charged,
the actor, as a result of severe mental disease or defect, did not know that his
conduct was wrong. The term “mental disease or defect” does not include an
1
As will be discussed more thoroughly in the next issue, Cooper contends that there was
error in the jury charge because the abstract portion of the charge did not include an instruction
regarding voluntary intoxication. Building on this premise, Cooper argues in his third issue that
factual-sufficiency reviews are measured against the charge given and not a hypothetically
correct charge. Accordingly, Cooper asserts that “the charge did not allow for . . . an implied
finding that [his] insanity was caused by voluntary intoxication” and that, therefore, “any implied
finding to that effect . . . would have to be overturned on a factual sufficiency review.” However,
the Court of Criminal Appeals has explained that factual-sufficiency challenges are addressed in
light of a hypothetically correct jury charge. See Wooley v. State, 273 S.W.3d 260, 268 (Tex.
Crim. App. 2008); see also Smith v. State, No. 05-03-01292-CR, 2004 WL 837878, at *1-2 (Tex.
App.—Dallas Apr. 20, 2004, no pet.) (op., not designated for publication) (noting that defendant
was challenging factual sufficiency of evidence supporting jury’s rejection of defense and
explaining that reviewing courts “measure the sufficiency of the evidence against a
hypothetically correct charge”). Moreover, as will be discussed next, we conclude that there was
no jury-charge error in this case.
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abnormality manifested only by repeated or otherwise antisocial conduct.
You shall determine that a defendant is not guilty by reason of insanity if:
(1) the prosecution has established beyond a reasonable doubt that
the alleged conduct constituting the offense was committed; and
(2) the defense has established by a preponderance of the evidence
that the defendant was insane at the time of the alleged conduct.
After reaching a verdict, you shall determine and specify in the verdict whether
the defendant is guilty, not guilty, or not guilty by reason of insanity.
Voluntary intoxication does not constitute a defense to the commission of a crime.
“Intoxication” means disturbance of mental or physical capacity resulting from
the introduction of any substance into the body.
The application paragraphs for both offenses stated that if the jury believed
beyond a reasonable doubt that Cooper committed the two offenses but also “believe[d] from the
evidence presented by a preponderance of the evidence that the defendant was insane at the time
of the offense due to a mental disease or defect, then you will find the defendant ‘Not Guilty by
Reason of Insanity’ and so say by your verdict.”
On appeal, Cooper contends that there were errors in the abstract and application
portions of the charge because the charge did not include an instruction “on the burden of proof
regarding voluntary intoxication as an exception to the affirmative defense of insanity.” Further,
Cooper argues that there was an additional error in the charge because the application portion of
the charge did not reference voluntary intoxication or specify how voluntary intoxication could
be applied in this case. Moreover, Cooper contends that these errors harmed him.
When addressing an issue regarding an alleged jury-charge error, appellate courts
must first decide whether there is error before addressing whether the alleged error resulted in
any harm. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When determining if
11
there is error in a jury charge, “reviewing courts ‘must examine the charge as a whole instead of
a series of isolated and unrelated statements.’” Vasquez v. State, 389 S.W.3d 361, 366 (Tex.
Crim. App. 2012) (quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)). If
the court determines that there was an error, it then decides whether the error resulted in harm
sufficient to warrant a reversal. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If
no objection is made to a jury charge, as in this case, courts will only reverse if a jury-charge
error “is so egregious and created such harm that [the defendant] ‘has not had a fair and impartial
trial’—in short ‘egregious harm.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh’g); see also Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013)
(setting out what constitutes egregious harm).
Initially, we note that the jury charge in this case provided general instructions
directing the jury to “consider this charge as a whole” when deliberating and explaining that the
State must prove each element of the offenses charged “beyond a reasonable doubt.” Moreover,
the voluntary-intoxication instruction and the instruction defining intoxication track the
governing language from section 8.04 of the Penal Code. See Tex. Penal Code § 8.04(a), (d); see
also Valdes-Fuerte v. State, 892 S.W.2d 103, 108-09 (Tex. App.—San Antonio 1994, no pet.)
(overruling issue asserting that inclusion of instruction on voluntary intoxication was not
supported by evidence and noting that instruction given tracked language from Penal Code).
Furthermore, the Penal Code does not assign a burden of proof regarding
voluntary intoxication, see Tex. Penal Code § 8.04, which is consistent with the nature of the
instruction. “[A] Section 8.04(a) instruction is appropriate if there is evidence from any source
that might lead a jury to conclude that the defendant’s intoxication somehow excused his
actions” and is designed to prevent a jury from being confused about whether a defendant’s
12
intoxication could somehow excuse his actions. See Sakil v. State, 287 S.W.3d 23, 26-27 (Tex.
Crim. App. 2009). “By instructing the jury that voluntary intoxication does not constitute a
defense to assault,” a trial court properly utilizes “the charge’s function to actively prevent
confusion.” Id. at 28. Further, when rejecting arguments that a nearly identically worded
voluntary-intoxication instruction relieved the State of the obligation of proving all elements
beyond a reasonable doubt and approving the inclusion of that instruction, the Court of Criminal
Appeals explained that, “[i]f anything, a voluntary-intoxication instruction acts to reaffirm the
mental-state requirements, not delete them,” by informing “the jury that the elements of the
offense, including the requisite mental state, are not affected by any evidence of intoxication.” Id.
In light of the jury charge’s instruction that the State must prove the elements of
the offenses beyond a reasonable doubt and the nature of a voluntary-intoxication instruction, we
cannot agree that the trial court erred by failing to include a burden-of-proof instruction for
the voluntary-intoxication instruction in the abstract portion of the charge. Cf. Ramos v. State,
991 S.W.2d 430, 434 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (addressing issue
regarding omission of reasonable-doubt instruction in voluntary-intoxication instruction for
mitigation purposes in punishment hearing and explaining that “[b]ecause section 8.04 does not
state a burden, a trial court should not instruct a jury that the defendant has a particular burden to
prove temporary insanity from voluntary intoxication”).
Turning to Cooper’s assertion that it was error not to reference voluntary
intoxication in the application section or include a voluntary-intoxication instruction like the one
in the abstract section, we note that “[t]he abstract paragraphs serve as a glossary to help the jury
understand the meaning of concepts and terms used in the application paragraphs of the charge.”
See Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). “[I]f the application
13
paragraph ‘necessarily and unambiguously’ refers to another paragraph of the jury charge, then a
conviction is authorized, and the trial judge need not sua sponte ‘cut and paste’ that definition
into the application paragraph.” Vasquez, 389 S.W.3d at 367 (quoting Plata v. State, 926 S.W.2d
300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997)). “It is unnecessary to repeat every abstract definition in the application
paragraph of the jury charge.” Holland v. State, 249 S.W.3d 705, 709 (Tex. App.—Beaumont
2008, no pet.).
In this case, the abstract portion of the charge instructed the jury to consider
the whole charge when making its deliberations, informed the jury that the State was obligated
to prove every element of the offenses beyond a reasonable doubt, defined insanity and
intoxication, and explained that voluntary intoxication is not a defense to the commission of the
offenses. See Redding v. State, No. 01-14-00536-CR, 2015 WL 6081757, at *4-5 (Tex. App.—
Houston [1st Dist.] Oct. 15, 2015, pet. ref’d) (mem. op., not designated for publication)
(overruling issue asserting that application paragraph should have included voluntary-
intoxication instruction where abstract portion of charge contained voluntary-intoxication
instruction and where charge also instructed that State had to prove all elements beyond
reasonable doubt and observing that case law supported conclusion “that a trial court does not err
in failing to submit an application paragraph with a voluntary intoxication instruction”).
Further, the beginning of the application portion of the charge references the
abstract portion with an introductory phrase stating “Now bearing in mind the foregoing
instructions” before directing the jury to determine whether Cooper committed the two offenses
in question. Cf. Collins v. State, No. 03-15-00629-CR, 2016 WL 768447, at *5 (Tex. App.—
Austin Feb. 26, 2016, pet. ref’d) (mem. op., not designated for publication) (concluding that
14
there was no jury-charge error stemming from absence of instruction on accomplice testimony in
application section of charge, in part, where accomplice instruction was given in abstract section
and where application section had “introductory phrase” referencing prior portions of jury
charge). In addition, the application portion directed the jury to determine whether Cooper was
insane when he committed the offenses. The statement in the application section directing the
jury to consider whether Cooper “was insane at the time of the offense due to a mental disease or
defect” was a reference to the full definition for insanity, including the voluntary-intoxication
component, given in the abstract section. Cf. Fountain v. State, Nos. 05-11-00753-CR, 05-11-
0797-CR, 2013 WL 1245725, at *3 (Tex. App.—Dallas Feb. 12, 2013, pet. ref’d) (op., not
designated for publication) (determining that reference in application portion of charge to action
“in violation of an order” under relevant statutes “clearly refers jurors to the full definition given
above the application paragraph”). A reasonable jury would refer to the abstract definition of
insanity without needing to have the portion regarding voluntary intoxication repeated in the
application paragraph. See id. Accordingly, we cannot agree with Cooper that the trial court
erred by failing to include a voluntary-intoxication instruction in the application section.
For all of these reasons, we overrule Cooper’s fourth issue on appeal.
Deadly Weapon
In his fifth issue on appeal, Cooper asserts that the evidence was insufficient to
prove that he used or exhibited a deadly weapon during the alleged aggravated assault. As
support, Cooper notes that no expert testimony was presented regarding whether the knife was
capable of causing serious bodily injury or death. Further, Cooper urges that the evidence did
not establish that the knife was a deadly weapon because “[t]here was nothing showing [that he]
15
intentionally stabbed the victim or attempted to ward her off with the knife a second time.”
Moreover, Cooper asserts that Hardcastle did not testify regarding the depth of the puncture
wound. For these reasons, Cooper argues that this Court should reverse his conviction for
aggravated assault, reform the judgment “to show a conviction on the lesser included offense” of
assault, and remand the case for a new punishment hearing.
For sufficiency challenges, appellate courts view the evidence in the light most
favorable to the verdict and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). When performing this review, an appellate court must bear in mind that it is the
factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make
“reasonable inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc.
art. 36.13 (explaining that “jury is the exclusive judge of the facts”). The factfinder is “free to
apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing
reasonable inferences from the evidence.” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d). Appellate courts must “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17
(Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences
were resolved in favor of the conviction and “defer to that determination.” Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that “direct
and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its
own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.]
16
2011, pet. ref’d). The evidence is legally insufficient if “the record contains no evidence, or
merely a ‘modicum’ of evidence, probative of an element of the offense” or if “the evidence
conclusively establishes a reasonable doubt.” Id. at 107 (quoting Jackson, 443 U.S. at 320).
Under the Penal Code, a deadly weapon is defined as “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily
injury” or “anything that in the manner of its use or intended use is capable of causing death
or serious bodily injury.” Tex. Penal Code § 1.07(a)(17). “An ordinary knife is not a deadly
weapon per se; that is, it is not an object manifestly designed, made, or adapted for the purpose
of inflicting death or serious bodily injury.” Ashcraft v. State, No. 03-07-00237-CR, 2008 WL
480704, at *2 (Tex. App.—Austin Feb. 21, 2008, pet. ref’d) (mem. op., not designated for
publication). But a knife may become “a deadly weapon if, in the manner of its use or intended
use, it is capable of causing death or serious bodily injury.” Id. Further, the Penal Code defines
“bodily injury” as “physical pain, illness, or any impairment of physical condition” and defines
“serious bodily injury” as “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.” Tex. Penal Code § 1.07(a)(8), (46).
We note that “[e]xpert testimony is not required” to prove that a knife is a deadly
weapon. See Rivera v. State, 271 S.W.3d 301, 304 (Tex. App.—San Antonio 2008, no pet.).
Similarly, it “is not necessary” to admit the knife or provide a detailed description of the knife
“when there is other evidence showing the knife was capable of inflicting serious bodily injury in
the manner in which it was used.” Serna v. State, No. 01-89-00168-CR, 1989 WL 141214, at *3
(Tex. App.—Houston [1st Dist.] Nov. 22, 1989, pet. ref’d) (op., not designated for publication).
“[T]he injuries suffered by the victim can by themselves be a sufficient basis for inferring that a
17
deadly weapon was used.” Tucker v. State, 274 S.W.3d 688, 691-92 (Tex. Crim. App. 2008);
see also Magana v. State, 230 S.W.3d 411, 414 (Tex. App.—San Antonio 2007, pet. ref’d)
(observing that “[w]hen no actual injury is sustained by the victim, the prosecution must
introduce evidence of other factors to establish that the knife is a deadly weapon”).
During the trial, Hardcastle explained that Cooper threatened her while they
were in the car on the way to her house and held the knife at issue close to her face. Further,
Hardcastle testified that Cooper stabbed her chest with a knife while pushing her, that she felt
pain when she was injured, and that she was bleeding. When describing the injury, Hardcastle
said that the stab wound was three inches long, that the knife went inside “a good amount,” that
the knife was “maybe two inches away from an artery” according to her doctors, and that she
now has a scar that is an inch and a half long. See Garcia v. State, 17 S.W.3d 1, 5 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d) (determining that evidence was sufficient to support jury’s
finding that defendant used deadly weapon, in part, where victim had scar from stab wound,
where victim bled profusely, and where stab wound was on victim’s chest and close to spleen
and lung); Rodriguez v. State, 857 S.W.2d 102, 107 (Tex. App.—Corpus Christi 1993, no pet.)
(explaining in sufficiency analysis that rational trier of fact could find knife to have been deadly
weapon where it was used to stab victim, where victim sustained wounds to his chest that were
“one-half inch deep,” where victim went to hospital for treatment, and where witness testified
that “three-inch blade was capable . . . of causing serious bodily injury or death”). Further,
Hardcastle related that she suffered through “[a] lot of pain” for a month or longer, that she could
not lift anything over five pounds for three months, and that she wears clothes that cover her scar
because she is self-conscious about it.
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In addition, photos of the injury were admitted into evidence and showed that
Hardcastle received multiple stitches to close the wound. Cf. Morales v. State, 633 S.W.2d 866,
868-69 (Tex. Crim. App. 1982) (explaining that photograph of victim’s deep injury closed by
stitches was sufficient to establish that deadly weapon was used); Serna, 1989 WL 141214, at *4
(noting that jury was able to see victim’s scars and that officer described injuries at time they
were inflicted when concluding that evidence was sufficient to conclude that weapons were
deadly weapons). One photo indicated that the wound was approximately one inch long. Further,
a photo of the knife was admitted into evidence and showed that the knife had a triangular point
and serrated sides and that the knife had blood on the blade and down the handle. Cf. Gross v.
State, No. 07-03-00484-CR, 2004 WL 1469418, at *1-2 (Tex. App.—Amarillo June 30, 2004,
pet. ref’d) (mem. op., not designated for publication) (deciding that evidence was sufficient to
show that knife was deadly weapon, in part, because evidence showed that knife “was not only
sharply pointed but also serrated in part”). On the recording of her 911 call, Hardcastle
explained that Cooper stabbed her heart and chest and that she was bleeding. The 911 operator
told her to apply pressure to stop the bleeding.
Based on the evidence summarized above, the jury could have rationally
concluded that the knife used in this case was a deadly weapon. See Dana, 420 S.W.3d at 169
(determining that evidence was sufficient to show that defendant used or exhibited deadly
weapon during assault involving more than one victim when jury saw photos of injury to one of
victims, when victim testified that his hand filled with blood while holding wound, when injury
was four inches long, when victim went to hospital and underwent surgery, and when another
victim received stitches to wound on face and had some hearing loss and wore eyepatch for two
months); Cook v. State, 99 S.W.3d 310, 312-13, 316 (Tex. App.—Eastland 2003, no pet.)
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(concluding that evidence was sufficient to establish that knife was deadly weapon where victim
testified that defendant had knife, poked her, held knife to her throat, dragged knife down her
back and arm, and where photos showed cuts that she sustained).
For these reasons, we overrule Cooper’s fifth issue on appeal.
Lesser-Included Offense
In his sixth issue on appeal, Cooper contends that the trial court erred by failing to
include in the jury charge an instruction regarding whether Cooper committed the lesser-included
offense of assault. When presenting this issue on appeal, Cooper urges that conflicting evidence
was presented at trial regarding whether he stabbed Hardcastle or was trying to push her away
while holding a knife and notes that no medical expert provided any testimony regarding the
nature of the wound that Hardcastle sustained. Cooper concedes that he did not request a lesser-
included-offense instruction, but he contends that this Court should still consider whether he was
egregiously harmed by the absence of the instruction.
The Court of Criminal Appeals has explained that “lesser-included instructions
are like defensive issues” and that a trial court has “no duty to sua sponte” provide a lesser-
included-offense instruction absent a request because decisions regarding whether to ask for those
types of instructions often rely on trial strategy and tactics. Tolbert v. State, 306 S.W.3d 776,
780, 781 (Tex. Crim. App. 2010); see also Robinson v. State, No. 03-14-00407-CR, 2015 WL
4515128, at *8 (Tex. App.—Austin July 22, 2015, pet. ref’d) (mem. op., not designated for
publication) (discussing how trial attorneys may decide not to ask for lesser-included instructions
as part of “an all-or-nothing strategy”). In the absence of a request for a lesser-included-offense
instruction, there is “no jury-charge ‘error’ to which Almanza’s egregious harm analysis would
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apply.” Tolbert, 306 S.W.3d at 782; see also Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.
App. 2007) (noting that trial courts do not have “sua sponte duty to instruct the jury on all
potential defensive issues, lesser-included offenses, or evidentiary issues”).
In this case, Cooper did not request an instruction on the lesser-included offense
of assault, and the trial court was not obligated to sua sponte include in the jury charge a lesser-
included-offense instruction “because such offenses are not ‘applicable to the case’ absent a
request by the defense for its inclusion in the jury charge.” See Teague v. State, No. 03-10-
00434-CR, 2012 WL 512661, at *5 (Tex. App.—Austin Feb. 16, 2012, pet. ref’d) (mem. op., not
designated for publication) (quoting Tolbert, 306 S.W.3d at 781). Consequently, the omission
does not constitute error and is not subject to review for egregious harm under Almanza, and
Cooper “cannot complain on appeal about the trial [court]’s failure to include a lesser-included-
offense instruction that he did not preserve by request or objection; ‘he has procedurally
defaulted any such complaint.’” See Turner v. State, No. 03-12-00285-CR, 2014 WL 3893018,
at *6, *7 (Tex. App.—Austin Aug. 8, 2014, pet. ref’d) (mem. op., not designated for publication)
(quoting Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013)). To the extent that Cooper
suggests that we should disregard the analysis from the Court of Criminal Appeals and analyze
whether the trial court erred by omitting a lesser-included-offense instruction, “[w]e cannot adopt
a position plainly rejected by the majority of a higher court.” See Teague, 2012 WL 512661, at *5.
For these reasons, we overrule Cooper’s sixth issue on appeal.
Jury Argument
In his final issue on appeal, Cooper argues that the State made improper jury
arguments that require a reversal in this case. When presenting this issue, Cooper points to the
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following exchange that occurred during the State’s closing argument:
[State]: And the hypothetical I was kind of going over with Dr. Mauro . . . is –
someone in his position is driving down the road, and they have schizophrenia.
They believe someone is following them, is out to get them, chasing after them
with guns, trying to run them off the road. . . . He gets out of the car, fires at the
individual who he believes is chasing after him, trying to kill him, and kills the
individual, he would be entitled to the insanity defense, because in his mental
disease and defective mind he believes that person is out to get him. He is
basically justified in using self-defense to protect himself from this person out to
get him. However, in firing at this individual, if he shoots an innocent bystander,
insanity defense does not extend to that innocent bystander because that is
reckless conduct.
[Cooper]: Judge, I am going to object. It’s a misstatement of the law.
[Trial Court]: That I’ll sustain.
[State]: The point is no one ever delved into whether or not he understood his
conduct was wrong –
[Trial Court]: And I am going to allow you to repeat that, if you want to, Counsel.
The law will be given to you by the Court in the charge. Use the charge to
determine what the law is in this case.
You may proceed.
[State]: What you’re supposed to look at is: Did he know his actions were wrong
in Count I, when he stabbed . . . Hardcastle? And no one ever asked him that
question. It’s all in relation to him trying to protect himself in relation to
intentional and knowing act, but no one ever asked him whether he knew it was
wrong to recklessly wield a knife. So that’s why I believe the insanity defense
doesn’t apply here.
In light of the above, Cooper contends that the State improperly argued that insanity could never
be a defense to an offense involving reckless conduct and, therefore, misstated the law. See Tex.
Penal Code §§ 6.03(c), 8.01.
“To preserve error regarding improper jury argument for appellate review, a
defendant must object and pursue his objection to an adverse ruling.” Johnson v. State, No. 03-
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12-00006-CR, 2012 WL 1582236, at *7 (Tex. App.—Austin May 4, 2012, no pet.) (mem. op.,
not designated for publication) (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App.
2010); Tex. R. App. P. 33.1(a)). “A defendant must contemporaneously object to the statement,
request an instruction that the jury disregard the statement if the objection is sustained, and move
for a mistrial if an instruction to disregard is given.” Id. (citing Cook v. State, 858 S.W.2d 467,
473 (Tex. Crim. App. 1993)). “[E]ven if an error” stemming from improper jury argument “could
not be cured” by giving an instruction to the jury, the defendant would still be required “to object
and request a mistrial.” Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002). If a
defendant fails to object to jury argument or fails to pursue an adverse ruling on his objection to
the argument, he waives his right to complain about the allegedly improper jury argument on
appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
Although Cooper objected to a portion of the State’s argument on the ground that
the State misstated the applicable law, the trial court sustained that objection, and Cooper did not
ask the trial court to instruct the jury to disregard the State’s argument or make any subsequent
objections to the State’s argument following the trial court’s ruling. Further, the State’s
allegedly improper argument was not so extreme that an instruction to disregard would not have
cured the alleged error. Cf. Veloz v. State, No. 01-08-00406-CR, 2010 WL 2431059, at *5 (Tex.
App.—Houston [1st Dist.] June 17, 2010, pet. ref’d) (mem. op., not designated for publication)
(noting that there is presumption that juries follow instructions “to disregard prosecutorial
misstatements of the law”). Accordingly, we must conclude that Cooper did not preserve his
complaints for appellate consideration. See Canada v. State, 547 S.W.3d 4, 22 (Tex. App.—
Austin 2017, no pet.).
For these reasons, we overrule Cooper’s seventh issue on appeal.
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CONCLUSION
Having overruled all of Cooper’s issues on appeal, we affirm the trial court’s
judgments of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Rose, Justices Baker and Triana
Affirmed
Filed: September 23, 2020
Do Not Publish
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