Asher Dewayne Blanson v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00087-CR ______________________________ ASHER DEWAYNE BLANSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 29115-B Before Morriss, C.J., Ross and Cornelius,* JJ. Opinion by Justice Cornelius ______________________________________ *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment O P I N I O N A jury convicted Asher Dewayne Blanson of aggravated robbery. Blanson's punishment, enhanced by two prior felony convictions, was set by the jury at thirty-five years' confinement. On appeal, Blanson raises seven points for reversal: (1) the evidence is legally insufficient to support the conviction for aggravated robbery; (2) the evidence is factually insufficient to support the conviction for aggravated robbery; (3) defense counsel rendered ineffective assistance of counsel because he failed to object to the court's jury charge that improperly instructed the jury that a knife is a deadly weapon; (4) the trial court erred by instructing the jury that a knife is a deadly weapon; (5) the trial court erred when it failed to give the jury a charge on the lesser-included offense of theft; (6) the trial court improperly charged the jury on the prior convictions used to enhance the punishment; and (7) there is insufficient evidence to support Blanson's enhanced punishment as an habitual offender. We overrule point one and sustain point four. Because of our disposition of these points, it is unnecessary to discuss the remaining points. We reverse the judgment and remand the cause to the trial court for a new trial. The evidence, viewed most favorably to the verdict, is as follows: Blanson entered a Super One Foods Supermarket in Longview. The store director, Brian Nelson, saw Blanson in the store carrying four bottles of dog wormer. A few minutes later, Nelson saw Blanson again, still in the store, and he had only two bottles of dog wormer in his hands. Nelson, accompanied by the assistant store director, Kirk Womack, approached Blanson and asked him where he put the other two bottles. Blanson said he put them down on a shelf. Blanson then told Nelson and Womack that he would show them where he put the two bottles. While walking down the aisle, and before they reached the shelf, Nelson and Womack saw Blanson take two bottles of dog wormer out of his pocket. Nelson and Womack then escorted Blanson to the store "break room" to await the police, who were informed that an attempted theft was in progress. When Nelson, Womack, and Blanson entered the break room, Nelson and Womack instructed Blanson to sit down. Nelson stood between Blanson and the door, and Womack stood by the door. Shortly after he sat down, Blanson became extremely agitated. He got up, started pacing the floor, began to "rant and rave," and repeatedly urged Nelson to let him go. At one point, Blanson said, "Don't make me hurt you!" Nelson and Womack said they became worried and uncomfortable because they did not know what Blanson might do. Suddenly, Blanson, holding a silver-colored pocketknife in his hand, rushed at Nelson. Blanson appeared to be trying to open the pocketknife and trying to escape from the room. Womack yelled, "Watch out, he's got a knife." When Blanson rushed at Nelson, Nelson and Womack both were worried and afraid that Blanson would use the knife to cause them imminent serious bodily injury or death. Womack "went for" the knife, while he and Nelson tackled Blanson and took him to the floor. In a few minutes, Blanson calmed down, and Nelson and Womack got him up and sat him down again while they waited for the police to arrive. The pocketknife had fallen to the floor, and it remained there until the police arrived. The police arrived a few minutes later, took Blanson into custody, and charged him with aggravated robbery. We first address the alleged charge error. Blanson contends the trial court improperly instructed the jury that a knife is a deadly weapon. The court's charge at the guilt/innocence stage of the trial contained the following instruction: "A knife is a deadly weapon." This is an incorrect statement of the law. A knife is not a deadly weapon per se. Hawkins v. State, 605 S.W.2d 586 (Tex. Crim. App. 1980). Therefore, to prove that Blanson committed aggravated robbery, the State was required to prove that the knife Blanson exhibited was a deadly weapon because, in the manner of its use or intended use, it was capable of causing serious bodily injury or death. Tex. Pen. Code Ann. § 1.07 (17)(B) (Vernon 2003); Jackson v. State, 913 S.W.2d 695 (Tex. App.-Texarkana 1995, no pet.). Thus, it was error to charge the jury that a knife is a deadly weapon. Blanson did not object to the improper charge regarding a knife being a deadly weapon. Therefore, to be entitled to a reversal of the judgment because of this charge error, Blanson must demonstrate that the error caused him egregious harm. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). To determine if the error caused egregious harm, we review the entire charge, the state of the evidence, the jury argument, and any other relevant information. Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995). The pertinent portions of the jury charge are as follows: Our law provides that a person commits robbery if, in the course of committing theft of property, as that term is hereinafter defined, and with intent to obtain or maintain control of corporeal personal property of another, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. The offense is aggravated robbery if the person commits robbery as above defined and exhibits a deadly weapon. A "knife" is a deadly weapon. . . . . Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that on or about the 27th day of November, 2001, in Gregg County, Texas, the defendant, Asher Dewayne Blanson did then and there while in the course of committing theft of property, as that term has been heretofore defined herein, and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Kirk Womack in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a knife, then you will find the defendant guilty of aggravated robbery as charged in paragraph A of the indictment. Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery as charged in paragraph A and next consider whether the defendant is guilty of robbery as charged in paragraph B of the indictment. Thus, both the knife definition and the application portion of the charge explicitly told the jury it could convict Blanson of aggravated robbery if he, while committing theft, placed Womack in fear of imminent bodily injury or death, and while doing so, Blanson exhibited a knife. In that respect, the jury charge misstated the law. Because a knife is not a deadly weapon per se, Blanson could have been guilty of aggravated robbery only if he committed the robbery while using or exhibiting a knife that, in the manner of its use or intended use, was capable of causing imminent death or serious bodily injury. Tex. Pen. Code Ann. § 1.07 (17)(B). The charge did not so instruct the jury. We find that this charge error caused Blanson egregious harm. It relieved the State of its burden to prove that the knife Blanson had was a deadly weapon, and it misled the jury to believe it could convict Blanson of aggravated robbery if he possessed a knife (which both parties admitted), without requiring proof of the knife's capability to cause imminent bodily injury or death. The nature of the unopened pocketknife as a deadly weapon was a central issue of the case, and the definition of a mere knife as a deadly weapon deprived Blanson of a valuable right-the right to require the State to prove that the knife Blanson had was, in fact, a deadly weapon. The State's jury argument exacerbated the harm from this error when it emphasized to the jury that Blanson was guilty of aggravated robbery because "he had a knife," and that, "For aggravated robbery, you need fear, in the course of theft, and you need a knife. That's as simple as it gets." The State argues that, because Blanson never disputed that he had a pocketknife, the charge error is not harmful. We disagree. Although both parties agreed that Blanson had a pocketknife, they did not both agree that the knife constituted a deadly weapon because of its manner or intended manner of use. For all of these stated reasons, we conclude that the charge error caused Blanson egregious harm. It is necessary for us to consider Blanson's first point in order to determine if we must render a judgment of acquittal or remand the cause for a new trial. If the evidence is legally insufficient to support a conviction for aggravated robbery, we must render a judgment of acquittal, and the Constitutional prohibitions against double jeopardy will prohibit a retrial. If, however, we find the evidence legally sufficient, and we reverse for a charge error, we may remand the case for a new trial. Burks v. United States, 437 U. S. 1 (1978); Clewis v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996). We have already recited the evidence viewed in the light most favorable to the verdict. We find that evidence legally sufficient to support a conviction of Blanson for aggravated robbery based on evidence that, while in an attempt to commit theft, he placed Womack in fear of imminent serious bodily injury or death, and during the course of that attempt, exhibited a knife that, in the manner of its use or intended use, was capable of causing serious bodily injury or death. Although the evidence is legally sufficient to convict Blanson on this basis, we cannot sustain the conviction on this basis, because the trial court did not charge the jury on the basis of Blanson's use of a knife which, by reason of its manner of use or intended use was capable of causing serious bodily injury or death, but rather charged the jury only on the exhibition of "a deadly weapon, to-wit: a knife." Because of the charge error, we reverse the judgment and remand the case to the trial court for a new trial. William J. Cornelius* Justice *Chief Justice, Retired, Sitting by Assignment Date Submitted: February 12, 2003 Date Decided: April 22, 2003 Publish fy; line-height: 0.416667in"> Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he or she acted in conformity with his or her character. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 386-88 (op. on reh'g). In applying the Texas Rules of Evidence, however, the Texas Court of Criminal Appeals has also held that the evidence may be admissible when it is shown to be relevant to a noncharacter conformity issue of consequence in the case, such as establishing intent or rebutting a defensive theory. Robbins, 88 S.W.3d at 259; Montgomery, 810 S.W.2d at 387-88. A trial court is in the best position to decide these admissibility questions, and appellate courts therefore review its decision under an abuse of discretion standard. Montgomery, 810 S.W.2d at 391. This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. See id. In a number of cases, evidence about extraneous bad acts or offenses allegedly committed by an accused has been held admissible to refute defensive theories raised by the accused. Wheeler v. State, 67 S.W.3d 879, 886-87 & n.18 (Tex. Crim. App. 2002) (noting that "[e]vidence of extraneous offenses committed by the accused has been held admissible . . . to refute a defensive theory raised by the accused") (quoting Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972); and referencing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) ("[p]robably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory")); see also Rodriguez v. State, No. 290-01, 2003 WL 1534250, at *11 (Tex. Crim. App. Mar. 26, 2003) (Myers, J., dissenting). From the opening statements and throughout the testimony, Mattox's sole defensive theory was that the complainant was not telling the truth about any sexual activities between them. The reason suggested for her alleged lies was that she was angry about his version of parental discipline and wanted to move in order to live with her biological father in South Carolina. Clearly, C.H.'s testimony about the acts she observed between Mattox and S.B. were admissible to show that the acts occurred. C.H.'s testimony that Mattox had attempted to pay her to engage in similar acts and had attempted on one occasion to unbutton her pants while she was in the complainant's bedroom are a different issue. The State takes the position that this testimony tends to refute Mattox's defensive argument that S.B. had fabricated her testimony. In reviewing the admissibility of this evidence, we are confronted by opinions that have continually narrowed the scope of the rule and thereby broadened the range of evidence found to be admissible. In Wheeler, in reviewing testimony by another minor girl, the Court found that her testimony regarding an extraneous offense of sexual touching near other people was admissible to rebut a specified defensive theory that Wheeler did not have opportunity to make such contact with the alleged victim because he was never alone with her and the acts allegedly occurred while other persons were around. Wheeler, 67 S.W.3d at 885. The Texas Court of Criminal Appeals also stated that the evidence was admissible to rebut a "frame-up" theory by showing similar acts in a situation involving neither money nor revenge as possible motives for her testimony. Id. at 887. This same defensive theory (lack of opportunity) was also used to validate the admission of extraneous offenses in Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). In that case, the court also found that it was acceptable to look to the opening statement by defense counsel to glean the defensive theory and that evidence by other witnesses about alleged extraneous offenses committed against them while in the company of other people was admissible to refute his argument that he could not have committed the crime‒because other people were always around. Reversing Powell v. State, No. 12-98-00049, 2000 WL 760988 (Tex. App.‒Tyler May 31, 2000, op. on reh'g) (not designated for publication). The question before this Court is whether there is any viable, specific, defensive theory that this testimony was relevant to rebut‒besides its relevance to show that Mattox acted in conformity with his (bad) character. In Wheeler, the court held that one of its reasons for finding the testimony admissible was that the complainant had been accused of fabricating the story in a conspiracy designed to attempt to obtain money. Wheeler, 67 S.W.3d at 887. Therefore, the court reasoned, the extraneous-offense testimony tended to contradict that theory by showing that other young girls with no such motives had been similarly treated by the defendant. In this case, the defensive theory was that S.B. had concocted the story in an attempt to create a situation where she could join her birth father in another state. If the testimony of C.H. rebuts a specific defensive theory, such evidence of similar acts was admissible in order to show that, as in Wheeler, other young girls with no such motive had been similarly treated. In making this determination, we review the evidence presented regarding the defensive theory. In the opening statement, Mattox introduced the theme, "she wanted to live with him [her birth father] because she had a freer lifestyle, and [he] let her do things she didn't get to do around here." This continued to be developed with witness Eddie Waggoner, who was asked, "How about if your mother thought that your real dad was a low down bad guy and he moved to another state and you wanted to get back with him, . . . ?" In questioning S.B., he asked, "Did [your birth father] ever talk to you about breaking up the family so that he could remarry [S.B.'s mother]?" Suzette Williams testified that S.B. had said she was going to get the defendant in trouble by saying that he molested her and that she wanted Williams to lie for her. S.B.'s aunt testified that S.B. had said she was lying, that S.B. was just mad at Jess, and that S.B. was saying this to get even because of him being so strict on her she wanted to live with her real dad. S.B.'s mother testified that S.B. told her that Jess did not do anything and that she was mad at him for "interfering in her father's relationship." Her mother also testified that S.B. had made up the lie because S.B. wanted to make her mother mad enough to let her go to South Carolina. Mattox testified that S.B. said if he "didn't get off of her back that she was going to go up and make the report that I was molesting her, . . . ." "I think that wanting to go up to be with her real father is motive enough." The primary defense to this case was that S.B. was lying and her motivation was to live with her biological father. Mattox offered evidence on this issue from the child's mother and aunt. Additionally, three other witnesses were questioned on this subject, including the child. Mattox also personally presented such evidence in his defense. Under these unusual circumstances, and applying the requisite abuse of discretion analysis, we conclude the trial court's decision to admit the evidence was within the zone of reasonable disagreement. Accordingly, error has not been shown. Mattox also argues on appeal that, under Texas Rule of Evidence 403, the evidence was unfairly prejudicial. See Tex. R. Evid. 403. However, except for the one instance set out specifically above, he did not make that argument at trial. In connection with the shirt-raising incident, the testimony was merely a part of the entire transaction and, as such, although it was obviously prejudicial, we perceive no reason that it would be unfairly prejudicial. We therefore conclude the trial court did not abuse its discretion by admitting the testimony. We cannot consider the other contentions in connection with the Rule 403 balancing test because that complaint was not brought to the trial court's attention by a timely and proper objection and, thus, the claimed error has not been preserved for our review. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997); Montgomery, 810 S.W.2d at 389. Britt's testimony Mattox also complains that the trial court abused its discretion by admitting the previously described testimony of Donetta Britt in rebuttal. Britt testified in her rebuttal testimony that she had been sexually assaulted by Mattox and by two other men when she was twelve years old. Britt was twenty-three years old at the time of trial. As discussed above, this testimony was admissible to rebut Mattox's defensive theory that the complainant had fabricated her accusations so she could live with her biological father. Counsel objected adequately that the evidence was inadmissible because its probative value was substantially outweighed by its unfair prejudicial nature. We therefore turn to the question of whether the court abused its discretion in admitting the evidence. Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op. on reh'g). In making this determination, the trial court should "consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it." Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992). A trial court's decision in balancing these factors is reviewed under an abuse of discretion standard and is disturbed on appeal only when the trial court's decision falls outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391-92. Tex. R. Evid. 403 carries with it a presumption that the evidence will be more probative than prejudicial. Tennison v. State, 969 S.W.2d 578, 580 (Tex. App.‒Texarkana 1998, no pet.). In order to be unfairly prejudicial, the proffered evidence must have a tendency to suggest a decision on an improper basis. Perkins v. State, 902 S.W.2d 88, 99 (Tex. App.‒El Paso 1995), supplemented by, 905 S.W.2d 452 (Tex. App.‒El Paso 1995, pet. ref'd). In conducting the balancing test required by Rule 403, the trial court must assess the inherent tendency, if any, of the evidence to encourage resolution of material issues on an improper basis, balance against that inherent tendency the host of factors affecting probativeness, and then determine whether the trial court's decision on that matter is outside the zone of reasonable disagreement. Richardson v. State, 879 S.W.2d 874, 880-81 (Tex. Crim. App. 1993); Fuller, 829 S.W.2d at 206. Those criteria include the following factors: (1) how compellingly the evidence serves to make a fact of consequence more or less probable‒a factor that is related to the strength of the evidence; (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence; and (4) the force of the proponent's need for this evidence to prove a fact of consequence, which breaks down into three subparts: (a) Does the proponent have other available evidence to establish the fact of consequence that the evidence is relevant to show? (b) How strong is that other evidence? and (c) Is the fact of consequence related to an issue that is in dispute? See Montgomery, 810 S.W.2d at 389-90; Taylor v. State, 93 S.W.3d 487, 506 (Tex. App.‒Texarkana 2002, pet. denied). Factor one: Evidence of a previous sexual assault concerning one who had no motivation to lie, such as is alleged in this case, is probative. Britt had no motivation to fabricate the story, which goes to the issue of rebutting the defensive theory that the complainant in this case had fabricated her allegations. This factor weighs in favor of finding the evidence admissible. Factor two: The witness testified Mattox and two other men sexually assaulted her, when she was twelve years old. In response to a question asking whether Mattox had taken inappropriate sexual actions with her, she replied: Yes, he has. When I was in the 6th grade in school, him and two other men -- we were -- the kids were -- and the men were all playing freeze tag (sic) because our parents -- or the women parents had all went to town for something, and in the barn him and two other men held me down and took their pleasure at my expense. She then went on to confirm that Mattox had put his penis into her female sexual organ. She went on, then, to testify about a second occasion: Whenever I was 17 -- or the night of my 17th birthday, he come into the middle bedroom of my mom's house where I was laying down and asked -- brought a condom and asked me to have sex with him, and he also offered me a car. And he forced his self on me when I told him no. This testimony has a factual impact that cannot be disregarded. However, we also recognize that the entirety of this testimony constitutes only two paragraphs of a 400-page record that covered a four-day trial. We also recognize that the testimony is not the type of gruesome or graphic description of the event that would most strongly tend to inflame the passions of the jury. Further, this testimony is actually less graphic than the much more extensive testimony about the alleged offenses for which Mattox was being tried. We conclude this was not necessarily evidence that would tend to impress the jury in "some irrational but nevertheless indelible way" that could materially impact its decision-making process. Accordingly, we find that, although this factor leans in favor of excluding the testimony, it does not, standing alone, require its exclusion. Factor three: The time taken to develop the evidence was quite short. As mentioned above, Britt's direct testimony about the extraneous offenses consumed only two paragraphs of the record, and the entirety of her testimony, including cross-examination and redirect, covers only eight pages of the record. This leaves little concern that the testimony diverted the jury from consideration of the indicted offense. This factor falls in favor of admission. Factor four: Did the State need the evidence to prove a matter in dispute? The question at issue was whether the complainant had fabricated her story about the attack‒as set out by testimony from the complainant's other family members. As set out previously, the defense theory was that the child had concocted the story from whole cloth in order to be able to leave Mattox's household and rejoin her father. Further, her mother, aunt, and a friend, as well as Mattox, were taking the position that she was lying. The Texas Court of Criminal Appeals has found that a similar defensive situation involving a "small parade" of witnesses alleging that a complainant was lying justified admission of extraneous offenses to support the State's position that the complainant had not fabricated her story. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002). The same situation exists here as with the other testimony, which we have previously addressed. The primary defense was that S.B. was lying about even the existence of any sexual activity and that her motivation to lie was so she could move to another state and live with her biological father. This evidence attacking S.B.'s testimony from her friend, aunt, and mother has previously been recited. We find this factor also weighs in favor of admission of the evidence. The evidence obviously makes it more likely that the presently alleged act occurred. The question is whether the trial court could have decided within its discretion that the testimony about the prior sexual attack in which Mattox participated was not unfairly prejudicial. We conclude that, because the evidence was of an offense closely related in type to the present offense, it tended to refute Mattox's theory that this complainant's testimony was fabricated. The fact of consequence is thus related to an issue that was in substantial dispute in this prosecution. We therefore find the need for the extraneous offense evidence weighs toward admitting the evidence. We conclude, based on all of these factors, that the trial court's decision to admit the testimony of Britt was not outside the "zone of reasonable disagreement" and that the trial court therefore did not abuse its discretion by allowing the evidence to be admitted. Reopening the case Mattox finally contends the trial court erred by refusing to permit him to reopen his case to present more evidence. After both sides had rested and closed, Mattox asked the trial court to allow him to reopen his case: [Mattox's Counsel]: Your Honor, we would ask to reopen. THE COURT: Tell me about it. [Mattox's Counsel:] We have five witnesses, four of them dealing with this Britt lady, and one is dealing with an incident that [S.B.] had said she was going to run away and escape, and we were going to talk about that she had a plan and to go toward her ability to form a plan. A lot of the state's experts said she couldn't do that. . . . . THE COURT: Do I understand the state's objecting to this? [Prosecutor]: We are objecting strenuously, Your Honor. THE COURT: I'm going to sustain your objection and deny your request. [Mattox's Counsel]: We take exception. . . . . [Mattox's Counsel]: Your Honor, I want to reurge the motion to open. One of the witnesses is going to testify how he was dressed when he went across to get his sandwich at lunch on February 1st and 2nd. We review a trial court's refusal to allow a party to reopen its case-in-chief for abuse of discretion. See generally Peek v. State, 106 S.W.3d 72, 72, 75 (Tex. Crim. App. 2003). A trial court must reopen a case under Article 36.02 of the Texas Code of Criminal Procedure "only if the proffered evidence is 'necessary to a due administration of justice.'" Id. at 79 (quoting Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981)). The Texas Court of Criminal Appeals recently explained "due administration of justice" means the evidence sought to be introduced must be more than merely relevant: "a judge should reopen the case if the evidence would materially change the case in the proponent's favor." Peek, 106 S.W.3d at 79. In the case before us, the record does not demonstrate the evidence sought to be introduced during a reopening of Mattox's case would materially change the case in his favor. Under these facts, Mattox has not shown the trial court abused its discretion by denying his motion to reopen. We affirm the trial court's judgment. Jack Carter Justice Date Submitted: June 20, 2003 Date Decided: October 23, 2003 Do Not Publish