David Washington v. State

No. 04-00-00336-CR David WASHINGTON , Appellant v. The STATE of Texas, Appellee From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CR-1287 Honorable Raymond Angelini, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Tom Rickhoff, Justice Catherine Stone, Justice Sarah B. Duncan, Justice Delivered and Filed: August 29, 2001 AFFIRMED David Washington was convicted and sentenced by a jury for murder. He was ordered to pay a fine of $10,000 and sentenced to twenty years in the Institutional Division of the Texas Department of Criminal Justice. Acknowledging that he failed to object to the charge, Washington appeals his conviction alleging he suffered egregious harm from jury charge error. Charge Error Standard of Review The standard of review for jury charge error is that set out in the Texas Code of Criminal Procedure and Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). See Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000). Article 36.19 of the Code of Criminal Procedure provides that: [W]henever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). Under Almanza, we examine the error in light of (1) the entire jury charge, (2) the state of the evidence, including the contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information. See Almanza, 686 S.W.2d at 171. Voluntariness and Accident In his first point of error, Washington complains that the trial court did not properly instruct the jury on the issue of voluntariness and accident. He argues that the trial court should have charged the jury with an application of the law to the facts so they could understand that the defendant should be acquitted if there is a reasonable doubt about whether he voluntarily engaged in the conduct of which he was accused. The charge indicated that if "you have a reasonable doubt thereof, that the shooting was an accident and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict 'Not Guilty.'" Washington complains he requested the pertinent portion of the charge to read that the shooting "was a result of an accidental discharge of the gun while Jacqueline Washington and the defendant were struggling or scuffling for the possession of the gun...." This was lined out and replaced with "an accident." Washington argues this charge was erroneous because it did not include an application of the law to the facts. The State responds that Washington waived any error associated with the submitted jury charge because he did not object to the charge. If charge error is not preserved at trial, the defendant must show the error was so harmful that he was denied a fair and impartial trial, such that he suffered actual egregious harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Dooley v. State, 999 S.W.2d 796, 799-800 (Tex. App.--Tyler 1998, pet. ref'd). Washington argues that he was egregiously harmed because of the omitted portion of the charge applying the law to the facts regarding accident. Without deciding whether it was error to omit this portion of the charge, we decide that any error committed was not egregious. A reasonable jury would understand from the charge as it was written that if they believed beyond a reasonable doubt that Washington's conduct was not voluntary and was instead the result of an accidental shooting they were to find him "Not Guilty." Viewing the court's charge as a whole, we conclude that the charge sufficiently presents applicable law and protects the defendant's rights. See Dooley, 999 S.W.2d at 799. Washington has not met his burden of showing that error exists in the charge and that the error was calculated to injure his rights or cause a denial of a fair and impartial trial. See id.; Renfro v. State, 827 S.W.2d 532, 534 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Washington's first point of error is overruled. Circumstances Surrounding the Conduct Washington contends in his second and third points of error that the jury charge instructions that defined the culpable mental states for manslaughter and criminally negligent homicide as including the conduct element of circumstances surrounding the conduct, were erroneous. Because the charge was not objected to, Washington maintains these erroneous instructions constituted egregious error. He contends the instructions permitted the jury to convict him on the wrong conduct element of the requisite mental state for manslaughter and kept the jury from correctly considering the mental state for the offense of criminally negligent homicide, which carries a substantially lesser penalty. We disagree. Again, without deciding whether this portion of the charge contained error, we decide that any error committed was not egregious. A reasonable jury would understand from the charge as it was written that if they believed beyond a reasonable doubt that Washington recklessly caused the death of Jacqueline Washington, by shooting her with a deadly weapon, they must find him guilty of the offense of manslaughter. See Paul J. McClung & W. Scott Carpenter, Texas Criminal Jury Charges142-143 (1997) (containing same charge for recklessly causing death with a firearm - manslaughter). In addition, the error Washington believes the jury charge contained only appeared in the abstract portion of the charge, not the application paragraph. Viewing the court's charge as a whole, we conclude that the charge sufficiently presents the applicable law and protects the defendant's rights. See Dooley, 999 S.W.2d at 799. Washington has not met his burden of showing that the charge contained any error that was calculated to injure his rights or cause a denial of a fair and impartial trial. See id.; Renfro v. State, 827 S.W.2d 532, 534 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). We overrule Washington's second and third points of error. We affirm the judgment of the trial court. Catherine Stone, Justice DO NOT PUBLISH