Christopher Lynn Brightmon v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00038-CR ______________________________ CHRISTOPHER LYNN BRIGHTMON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 08-0281X Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION In a single jury trial, Christopher Lynn Brightmon was convicted both for aggravated assault (using a sawed-off shotgun to shoot at Guadalupe Rodriguez) and for possession of a prohibited weapon (the shotgun). See Tex. Penal Code Ann. §§ 22.02(a)(2) (aggravated assault), 46.05(a)(3) (Vernon Supp. 2008) (possession of a prohibited weapon). The jury assessed punishment at fifteen years' and three years' imprisonment, respectively, to run concurrently. On appeal, Brightmon argues that the trial court erred by not instructing the jury that the State had abandoned from the indictment "paragraph B," alleging a third offense, deadly conduct. Because the State had abandoned that allegation before argument, the charge submitted to the jury does not contain that allegation. Brightmon argues that, in the absence of a special instruction, the jury might have concluded that one way of committing aggravated assault was to simply discharge a firearm in the direction of another person. A trial court's charge to the jury must set forth the "law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Not only must the trial court fully instruct the jury on the law applicable to the case, but it must also apply that law to the facts presented. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). The charge must apply the law to the facts adduced at trial because the jury must be instructed under what circumstances to convict or acquit. Id. at 127-28; Holland v. State, 249 S.W.3d 705, 709 (Tex. App.--Beaumont 2008, no pet.). (1) In this case, although the complete indictment was read to the jury before trial, the charge that ultimately went to the jury did not charge the jury on the section of the indictment that was abandoned. Thus, there is no error in the charge as presented to the jury. To counsel's credit, he acknowledges that the charge does not contain error and that trial counsel affirmatively stated "no objection" to the charge in the form submitted to the jury. Brightmon argues that, because the charge failed to explain the absence of paragraph B, the jury may have convicted him of aggravated assault based just on that deadly conduct allegation, which would not have required threat of imminent bodily injury, but only that he discharged the weapon in the direction of the victim. He has provided us with no authority requiring a court to explain why the charge omits an allegation of wrongdoing made in the indictment, and we are aware of none. At trial, counsel did not object to the charge as given or request a separate instruction. Thus, even if we concluded that the trial court erred in some respect, we must be convinced that the defendant suffered egregious harm before reversal would be appropriate. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). We assess egregious harm by examining the whole jury charge, the evidence (in light of contested issues and the weight of the probative evidence), the arguments made by the parties, and any other relevant information shown by the trial record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). For harm to be egregious, it must be actual (not just theoretical) harm and must affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. at 461-62. Brightmon attempts to show error in a separate fashion by arguing that, because the record shows the jury was given the impression that he could be guilty of aggravated assault without evidence of a threat of imminent bodily injury, the absence of explanation caused egregious harm. Brightmon relies on Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006), to make his argument. In Sanchez, the Texas Court of Criminal Appeals ultimately found both error and egregious harm because the jury was instructed in such a way "that it was not required to find at least two elements of the offense . . . to be proven beyond a reasonable doubt prior to convicting the appellant." Id. at 125. We do not find Brightmon's argument persuasive. In this case, the jury was properly instructed in the charge that it could find Brightmon guilty only if it concluded beyond a reasonable doubt that he had committed each element of aggravated assault. This differs from the situation described in Sanchez, where the charge instructs the jury that it could find a defendant guilty of an offense, but then omits a necessary element of the offense from the charge. In either situation, the question is whether the jury followed the charge as given by the court. In Sanchez, if the jury did so, it could convict without finding that he had committed elements of the offense. We generally presume the jury follows the trial court's instructions. Renteria v. State, 206 S.W.3d 689, 707 (Tex. Crim. App. 2006); Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (jury presumed to follow court's instructions as given); Loun v. State, 273 S.W.3d 406, 421 n.21 (Tex. App.--Texarkana 2008, no pet.). As stated in Colburn, the presumption is rebuttable, but the appellant has pointed to no evidence in rebuttal. Our review of this record reveals nothing other than speculation and argument of counsel to suggest that the jurors did other than as they were instructed to do. Under these facts, we presume the jury followed the trial court's instructions. No error has been shown. Even if the absence of an explanatory instruction was error, egregious harm has not been demonstrated. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: June 12, 2009 Date Decided: July 9, 2009 Do Not Publish 1. We recognize that a defendant is entitled, upon a timely request, to an instruction on any defensive theory raised by the evidence, provided that (1) the defendant timely requests an instruction on that specific theory, and (2) the evidence raises that issue. Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003); Peavey v. State, 248 S.W.3d 455, 464 (Tex. App.--Austin 2008, pet. ref'd). In this case, the instruction now contemplated does not involve a defensive theory, but an explanation of the absence of a formerly alleged crime from the charge. urisdiction in which he resided or intended to reside for more than seven days. He was also obligated to update that registration with the local law enforcement authority annually, within thirty days before and thirty days after his birthday. According to the State's evidence, Ramos failed to make the annual registration for 2002 within thirty days of his August 2nd birthday. On appeal, Ramos contends his conviction and sentence are not supported by legally or factually sufficient evidence. We disagree. The Evidence Is Legally Sufficient Challenging the legal sufficiency of the evidence, Ramos argues that the State charged him with failure to register initially on establishing his current residence in Cass County, but that the State's proof addressed his failure to renew his registration on or about August 2, 2002. According to the record, Ramos' birthday was August 2nd. Therefore, Ramos was obligated to register annually, within thirty days before or after each 2nd day of August, with Connie Wise, who monitored sexual offender registrations for the sheriff's office of Cass County, Texas, the county of Ramos' residence. Ramos had properly registered with Wise in 1999, 2000, and 2001. In March and June 2002, Ramos properly registered changes of address with Wise. But, according to evidence presented by the State, Ramos failed to register with Wise within thirty days before or after August 2, 2002. In reviewing the legal sufficiency of the evidence, we examine the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). When legal sufficiency of the evidence is challenged based on a variance between the charge and the proof, the challenge here, we measure the sufficiency of the evidence against the indictment and the court's charge to the jury. Fisher v. State, 887 S.W.2d 49, 53 (Tex. Crim. App. 1994) (op. on reh'g); Smith v. State, 135 S.W.3d 259, 261–62 (Tex. App.—Texarkana 2004, no pet.); Cates v. State, 72 S.W.3d 681, 688 (Tex. App.—Tyler 2001, no pet.). We review the variance for materiality, because only a "material" variance will render the evidence insufficient. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); Smith, 135 S.W.3d at 262. That "materiality" inquiry requires us to determine whether the variance deprived Ramos of notice of the charges or whether the variance subjects him to the risk of later being prosecuted for the same offense. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Smith, 135 S.W.3d at 262; see Gollihar, 46 S.W.3d at 257. This variance was not material; therefore, the evidence was not legally insufficient because of that variance. The indictment alleged that, on or about the 2nd day of August, A.D. 2002, . . . CONRAD KEITH RAMOS . . . while being a person required to register with the local law enforcement authority in the municipality where the defendant resided or intended to reside for more than seven days, to-wit: Marietta, Texas, because of a reportable conviction for Indecency with a Child, intentionally, knowingly, or recklessly fail[ed] to register with the local law enforcement authority in said municipality, to-wit: Cass County Sheriff's Department, Cass County, Texas. The indictment also referenced as the relevant statute Texas Code of Criminal Procedure Article "62.10(a)(b)(2)." At the time, Article 62.10(a) of the Texas Code of Criminal Procedure provided that a person who is required to register as a sex offender and who violates "any requirement of this chapter"—Chapter 62, "Sex Offender Registration Program"—commits an offense. Article 62.10(b)(2) provided the grade of the offense, which is not at issue in this appeal. Therefore, in citing to the statute, the indictment failed to explicitly point to either a violation of the obligation to register initially or a violation of the obligation to register annually. While the indictment could be read as charging a failure to register initially on establishing his residence, it merely charges Ramos with failing to register on or about August 2, 2002. And, from the record, the significance of August 2, 2002, is no mystery. It was his birthday, and therefore the date marking his obligation to register annually. The charge to the jury essentially tracked the indictment's language. Ramos does not claim surprise based on the variance, and in fact defended at trial on the basis that his failure to register on or about August 2, 2002, was justifiably based on permission not to report. There was no surprise to Ramos. Ray Copeland, investigator for the Cass County Sheriff's Office, interviewed Ramos about Ramos' failure to register. Ramos gave a written statement, which was introduced into evidence. In the statement, Ramos says that a "blue warrant" alleging a parole violation had issued for him because Ramos was arrested for driving while intoxicated (DWI) in Mount Pleasant, Texas. In his statement, Ramos said that he found out about this warrant on "7-02," which caused him not to report to the sheriff's office on "8-02-02." Knowing he would be arrested, Ramos wrote, "I just left and worked else where [sic] then moved back here to Grand Saline, TX[,] worked for 6 mths [sic] and waited for Cass Co. or who ever to come get me. . . . " Ramos concludes the written statement by saying that the blue warrant is the reason he did not register on his birthday, August 2, 2002, as he had done "every year." Craig Biggar, Ramos' parole officer, testified that, when Biggar took over supervision of Ramos' parole, Biggar was told that Ramos had a pending DWI charge. Biggar's predecessor and supervisor discussed the matter and "had decided to let Mr. Ramos go to court before they did anything about it." Biggar was told of this arrangement when he took over supervision of Ramos' parole. In July 2002, Biggar's supervisor changed. The new supervisor instructed Biggar to obtain a warrant for Ramos. Biggar spoke to Ramos in July 2002, and advised Ramos of the blue warrant. According to Biggar, Ramos promised to turn himself in to authorities in August, when he had an appearance in court, presumably for the DWI. Biggar said to Ramos, "Okay, that's fine." Ramos did not present himself to any court during August and was listed as an absconder with the parole authorities. Biggar stated that he never told Ramos that Ramos did not have to register as a sex offender. From Ramos' written statement it is clear he (a) knew he was obligated to report thirty days before or after August 2, 2002, and (b) consciously chose not to. Wise, the officer in charge of sex-offender registrations for Ramos' jurisdiction, testified Ramos had regularly reported for three years before the date in question, including two registrations of address changes within about six months before August 2002. Ramos was obligated to register with local law enforcement officials, as a result of his final conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (Vernon Supp. 2005). He was required to report to the appropriate local law enforcement agent within thirty days of his birthday each year. See Tex. Code Crim. Proc. Ann. art. 62.058(a). A rational jury could have found, beyond a reasonable doubt, the elements of failure to register annually as a sex offender. And there was no material variance between the indictment and the proof. The evidence is legally sufficient. The Evidence Is Factually Sufficient Ramos next challenges the factual sufficiency of the evidence. In our review of the factual sufficiency of the evidence concerning matters where the State has the ultimate burden of proof or persuasion, we employ the standards set forth in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga, 144 S.W.3d at 486). If the evidence is factually insufficient, we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). In his case-in-chief, Ramos presented only one witness, his former parole officer, who supervised Ramos in 1999. Officer David Montgomery testified that, when he supervised Ramos, Ramos had complied with the terms of his parole, including timely reporting and wearing a leg monitor. That evidence does not contradict the evidence of the violation here. In challenging the factual sufficiency of the evidence, Ramos contends that Biggar gave his permission to Ramos to turn himself in in August and that, therefore, Ramos did not have the necessary intentional, knowing, or reckless state of mind in failing to register. Ramos offers no authority or analysis of this point and does not argue mistake of law or fact. Regardless, the State proffered testimony that, in 2002, Ramos did not report to the proper authorities within thirty days of his birthday. As stated above, Ramos' written statement demonstrates he was obligated to report. Whether he thought he had Biggar's permission to delay his annual report is not relevant to the inquiry. And there was no evidence which would have precluded a finding of guilt beyond a reasonable doubt. The evidence is factually sufficient to demonstrate that Ramos intentionally, knowingly, or recklessly failed to register within thirty days of August 2, 2002. We affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: March 27, 2006 Date Decided: May 4, 2006 Do Not Publish