Charles Ray Irving v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-476 CR ____________________ CHARLES RAY IRVING, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A000433-R OPINION Charles Ray Irving was found guilty of the aggravated assault of Phyllis Chargois. Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A jury sentenced him to four years' confinement in the Texas Department of Criminal Justice - Institutional Division. Irving presents two issues for our consideration: first, whether the trial court committed error in refusing to instruct the jury on the lesser included offense of simple assault; and second, whether the trial court erred in admitting a videotaped interview of Irving by a law enforcement officer. For the reasons stated herein, we reverse the judgment and remand the case for a new trial. Chargois and Irving had known each other for nearly twenty years; they had lived together on at least two separate occasions; and at the time of the alleged assault they had not lived together for the preceding four months. Chargois testified that Irving followed her from work on the evening of August 3, 2000, to an establishment frequented by Chargois. She left the establishment and drove to her sister's house in Louisiana, where she spent the night. Chargois returned home the next morning, and encountered Irving in her home. She testified that Irving was holding a bat, that he told her "not to try and run," and that it was her day to die; that Irving then struck her several times with the bat; and that she suffered broken bones in her leg, ankle, and arm. She further testified that she fell against a glass shelf, breaking the glass and cutting herself. Irving went to get a towel for Chargois to help stop the bleeding, and Chargois crawled out her front door, calling for help. A neighbor, Tommy Conway, helped her across the street to his front yard. Conway testified that he had heard a loud noise coming from Chargois' house. He went to investigate, and saw Irving with his arms around Chargois' head. It looked to Conway as if Irving was "fixing to twist her head off." Conway shouted at Irving, who then let Chargois drop to the ground. Bridge City Police Officer Shannon Meaux was sent to the scene, and he observed Chargois on Conway's property, with blood and a painful expression on her face. Meaux saw that Irving had blood on his face, arms and legs. Meaux conducted a videotaped interview with Irving, in which Irving is given his Miranda rights, and then gives a brief statement concerning the incident. The bat allegedly used in the assault was never found. Dr. Wesley Palmer treated Chargois at Park Place Hospital. He testified that Chargois had broken bones in her left arm and leg, injuries to her left hip and thigh, and a laceration to the back of her head. The fractured arm required pins be inserted into the arm, as well as a cast. Dr. Palmer was familiar with the legal definition of "serious bodily injury" and was of the opinion that Chargois suffered such injuries. Chargois told Dr. Palmer that her ex-boyfriend hit her with a bat. Dr. Palmer testified that the injuries Chargois suffered could have been caused by hitting her with a bat. He also testified that the individual injuries were consistent with a fall on a cement floor, although the number of injuries would have required multiple falls. Irving testified on his behalf. He and Chargois had an on-again/off-again relationship; he lived with her for about nine of the years they knew each other. He denied he was in Beaumont on the day Chargois testified that he followed her as she left her job. He acknowledged going to her house on August 3, testifying that he still had a key to her house. He went to the house to remove some clothing which was still there, and he spent the night at the house. He understood he was to meet her there, but she never arrived. On that day he went in and out of Chargois' house. The next morning he backed his car into her garage to load up his things. After loading, he went back inside the house, where he saw Chargois. Irving testified that when he encountered Chargois in the house, she began cursing him. He denied that he told her it was her day to die. He testified he picked up a bat that was there in her house, but further testified that he threw the bat down and then placed his arms around Chargois. They began to struggle and bumped into glass shelves which fell and broke. Chargois fell on top of the glass and he fell on top of her. Irving noticed blood on the side of Chargois' neck, so he got a towel to help stop the bleeding. He heard the door slam and thought Chargois had left. When he went outside, he saw her lying on the concrete walkway. He attributed Chargois' serious injuries to a fall. He denied "physically abusing" Chargois. Irving attributed the differences between his in-court testimony and the statements made in the presence of the arresting officer to his nervousness at being arrested. He acknowledged that a bat could be a deadly weapon. In his first issue, Irving contends the trial court committed reversible error in refusing his requested charge on the lesser included offense of simple assault. In determining whether a charge on a lesser-included offense should be given, the reviewing court must first determine whether the offense for which the instruction is requested is a lesser-included offense of the offense charged. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). If it is, the court must then evaluate the evidence to determine if a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. "The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense." Id. All evidence, whether produced by the State or the defendant, must be considered. Sibley v. State, 956 S.W.2d 832, 835 (Tex. App.--Beaumont 1997, no pet.). The credibility of the evidence, or whether it conflicts with other evidence, is not considered. Id. The State does not contest that simple assault is a lesser-included offense of aggravated assault. It has long been so recognized. Foster v. State, 25 Tex. Ct. App. 427, 543, 8 S.W. 664, 665 (1888). However, it is the State's position that there is no evidence from which a rational jury could determine that Irving was guilty of the lesser offense of simple assault. "Aggravated assault" consists of the commission of an assault as defined in Penal Code Section 22.01, plus the additional element of either: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a) (Vernon 2003). The indictment charged aggravated assault through both means. The jury charge also contained both means. "Assault" is committed if the person: "(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Tex. Pen. Code Ann. § 22.01(a)(1), (2), and (3) (Vernon 2003). Without regard to whether it is credible or conflicting, we note the following evidence. Tommy Conway testified he observed Irving holding Chargois around the head, like he was going to "twist her head off." Conway further testified he heard Chargois calling for help. Irving testified that although he initially picked up a bat, he discarded it before wrapping his arms around Chargois, holding her and struggling with her. Such grabbing and holding would constitute "intentional( ) or knowing( ) . . . physical contact with another." Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774, 779 (Tex. App.--Corpus Christi 2001, no pet.). See also Stokes v. Puckett, 972 S.W.2d 921, 925 (Tex. App.--Beaumont 1998, pet. denied). (1) Testimony that Chargois called for help would constitute evidence that she regarded appellant's contact with her as offensive. Irving testified that, after their struggle, Chargois did not state she was hurt, she was not limping, and she walked into the kitchen, got a soda from the refrigerator, and sat down on the end of the cedar chest, continuing to talk to him. Irving also testified that he observed Chargois lying on the concrete walkway outside, and he attributed her serious injuries to this fall. The State's medical expert conceded that Chargois' injuries could have been the result of falling on the concrete outside and falling on the bat inside. We hold that there is evidence which, if believed by the trier of fact, would constitute evidence of simple assault. Because simple assault was, under the cited evidence, a marginally valid rational alternative to the aggravated assault charge, the trial court erred by failing to instruct the jury on this lesser included offense. This error in jury instruction requires that we perform a harm analysis. See Hampton v. State, 109 S.W.3d 437, 442 (Tex. Crim. App. 2003), and Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Since the error was properly objected to, supra, we need examine only whether there was some harm to the accused. Almanza at 171. Given that the minimum sentence for aggravated assault is greater than the maximum possible punishment for simple assault, we find obvious harm. Issue one is sustained. Because of our disposition of issue one, we need not address the second issue. The judgment is reversed, and the case is remanded to the trial court for a new trial. REVERSED AND REMANDED. ____________________________ STEVE MCKEITHEN Chief Justice Submitted on October 24, 2003 Opinion Delivered November 19, 2003 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. DISSENTING OPINION I respectfully dissent. Irving testified the victim's injuries resulted from an accident -- incredible testimony, given the nature and extent of her serious bodily injuries. But of course the legal issue is not the credibility of his testimony but rather whether his testimony required submission of the lesser-included offense of assault. There is no dispute the victim suffered serious bodily injuries. If Irving assaulted her, the assault was aggravated assault, because the assault caused serious bodily injuries. See Tex. Pen. Code Ann. § 22.02(a)(1) (Vernon 2003). Submission of the lesser-included offense under these circumstances would have been an improper "invitation to the jury to reach an irrational verdict." See Arevalo v. State, 943 S.W.2d 887, 890 (Tex. Crim. App. 1997). But Irving's testimony was that her injuries were the result of an accident, not an assault. Irving testified: "I never assaulted her." "That was an accident." "I never attacked her." In Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001), the Court of Criminal Appeals held "[a] defendant's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense." Irving testified he committed no offense. Considering Lofton and Arevalo, I would hold the trial judge did not err in refusing to instruct the jury on the lesser-included offense of assault. ____________________________________ DAVID B. GAULTNEY Justice Dissent Delivered November 19, 2003 Do Not Publish 1. The definition of assault is the same in both civil and criminal law. Stokes v. Puckett, 972 S.W.2d at 925. See also Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.--Houston [1st Dist.] 1999, no pet.); Lusk v. State, 432 S.W.2d 923, 924 (Tex. Crim. App. 1968)(Defendant put his hand on victim's arm; the least touching of another's person wilfully is a battery and every battery includes an assault).