Arthur James Deblanc v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-358 CR ____________________ ARTHUR JAMES DEBLANC, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause No. 85708 MEMORANDUM OPINION A jury convicted appellant of the felony offense of Aggravated Assault. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2004). The trial court assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twelve years. The trial court did not include an affirmative finding on appellant's use or exhibition of a deadly weapon in its judgment and sentence. See Lafleur v. State, 106 S.W.3d 91, 94-96 (Tex. Crim. App. 2003). Appellant presents two issues for our consideration: (1) The trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor assault; and (2) The evidence is legally and factually insufficient to support appellant's conviction for aggravated assault. The State replies that the record does contain both legally and factually sufficient evidence to sustain the verdict. However, as to issue one, the State concedes error by the trial court, and also harm to appellant. We begin with a review of the evidence for legal sufficiency. See Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In a review for legal insufficiency, we are to examine all the record evidence in the light most favorable to the verdict, and disregard any evidence that is contrary to the verdict. See Saxer v. State, 115 S.W.3d 765, 768-69, 772 (Tex. App.--Beaumont 2003, pet. filed) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Clewis v. State, 922 S.W.2d 126, 132 n. 10 (Tex. Crim. App. 1996)). Under Tex. Pen Code Ann. § 22.02(a)(2) (Vernon Supp. 2004), a person commits the offense of Aggravated Assault if the person intentionally, knowingly, or recklessly causes bodily injury to the victim and uses or exhibits a deadly weapon during the commission of the assault. "Bodily injury" means physical pain, illness, or any impairment of physical condition. See Tex. Pen Code Ann. § 1.07(a)(8) (Vernon Supp. 2004). In the instant case, the pertinent portion of the indictment reads as follows: ARTHUR JAMES DEBLANC . . . on or about the 21st day of October, Two Thousand and One, . . . did then and there intentionally and knowingly and recklessly cause bodily injury to [C.R.B.], . . . by hitting [C.R.B.] with a pipe, AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further present in and to said Court, . . . that during the commission of the aforesaid offense, the Defendant used and exhibited a deadly weapon, to-wit: a pipe, that in the manner of its use and intended use was capable of causing death and serious bodily injury, . . . C.R.B. testified that he was struck in the head from behind by appellant, and sustained a cut to his head that required "staples" to close. C.R.B. stated that when he turned around after the blow to his head he observed appellant holding a "pipe." Appellant and C.R.B. were brothers-in-law. Appellant's girlfriend had angered C.R.B.'s wife (appellant's sister). The assault took place only moments after a physical altercation erupted between appellant's girlfriend and C.R.B.'s wife. Appellant testified that the assault was in response to being fearful of C.R.B., as C.R.B. had just thrown a beer bottle at appellant and was reaching for something on the ground. Appellant responded by picking up "one of the things that go on the screen door" and striking C.R.B. in the head. Because of the disparity in their physical sizes, (1) appellant says he had to have something to defend himself so as to get past C.R.B. and into the apartment where belongings were kept. A rational jury could have found an assault with bodily injury occurred, and could have rejected appellant's self-defense explanation as justification for his conduct. (2) The only element of the offense upon which there appears to be an issue is whether appellant used a "deadly weapon" to commit the assault upon C.R.B. In Bailey v. State, 38 S.W.3d 157 (Tex. Crim. App. 2001), the Court of Criminal Appeals further clarified the law of aggravated assault by use of a deadly weapon. Bailey was convicted of the offense after evidence was elicited that he had threatened and repeatedly struck his estranged wife, Cassandra, with a piece of wood variously described as a "board" and a "stick." Id. at 158. On appeal, Bailey challenged the legal sufficiency of the evidence supporting the deadly weapon finding. Id. The court of appeals determined the evidence was legally insufficient to support the finding. Bailey v. State, 7 S.W.3d 721, 724 (Tex. App.--Corpus Christi 1999, pet. granted). In reversing the court of appeals, the Court of Criminal Appeals relied on language taken from one of its recent cases, McCain v. State, 22 S.W.3d 497, 499 (Tex. Crim. App. 2000), an aggravated robbery case, also involving the question of legal sufficiency to support the deadly weapon element of the offense. Bailey, 38 S.W.3d at 158-59. The Bailey Court, quoting from McCain, interpreted § 1.07(a)(17)(B) of the Texas Penal Code as follows: The statute does not say 'anything that in the manner of its use or intended use causes death or serious bodily injury.' Instead the statute provides that a deadly weapon is 'anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.' § 1.07(a)(17)(B) (emphasis added). The provision's plain language does not require that the actor actually intended death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. Bailey, 38 S.W.3d at 158-59; McCain, 22 S.W.3d at 503. For legal sufficiency purposes, we examine the evidence in the light most favorable to the verdict to determine if a rational factfinder could have found appellant "intended a use of the object in which it would be capable of causing death or serious bodily injury." Id. It is uncontested that appellant struck C.R.B. in the head with a metallic object. The object was referred to as a "pipe" and in various other ways, such as "iron piece," "a little iron piece, like something off a screen door," "the pipe or whatever that is," "the thing from a screen door," and "one of the things that go on the screen door." The trial court referred to it as "the pipe or whatever it was that was used[.]" The State's witnesses indicated that appellant was the aggressor and had sneaked up on C.R.B. from behind and struck him in the head. The testimony further indicated that C.R.B.'s head-wound produced a good deal of blood so that he required a cloth-wrap on his head to control the bleeding. Also, at some point, paramedics arrived and instructed C.R.B. that he needed to go to the emergency room for treatment. The State elicited testimony from Officer Jesus Tamayo of the Beaumont Police Department to the effect that during his seven and one-half years with the department he has investigated assaults involving metal pipes. From this, Officer Tamayo stated that in his opinion a metal pipe is capable of causing death or serious bodily injury, and that a pipe can be a deadly weapon. When Officer Tamayo was shown State's Exhibit 3, a photographic depiction of the object, he agreed the photograph depicted the "pipe" that was found in the case. Although Tamayo admitted on cross-examination that he never examined the object referred to as the "pipe," nor did he actually see the object in question, it was for the jury to decide the significance, if any, of this testimony. Saxer, 115 S.W.3d at 769. Under the appropriate appellate standards for assessing the legal sufficiency of evidence to sustain a conviction, we overrule that portion of issue two complaining of the lack of legally sufficient evidence. However, appellant says, and the State agrees, the trial court erred in not submitting the lesser included offense of misdemeanor assault. The Court of Criminal Appeals has adapted a two-step test to determine when a charge on a lesser included offense should be given. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981). The first step is to decide whether the offense comes within Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). This is usually stated as "the lesser included offense must be included within the proof necessary to establish the offense charged." See, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguliar, 682 S.W.2d at 558; Royster, 622 S.W.2d at 444. This statement of the rule is a paraphrase of the language of art. 37.09(1), which describes the kind of lesser included offense most frequently encountered. Of course, another definition of lesser included offense in subdivisions (2), (3), or (4) of art. 37.09 may apply as well in the first step of a given case. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996). In this case, the State concedes that misdemeanor assault (bodily injury) is a lesser included offense of the charged offense. The second step of the Aguilar/Royster test requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Schweinle, 915 S.W.2d at 18, Rousseau, 855 S.W.2d at 672; Aguilar, 682 S.W.2d at 558; Royster, 622 S.W.2d at 444. The evidence must be evaluated in the context of the entire record. Ramos v. State, 865 S.W.2d 463 (Tex. Crim. App. 1993). There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense; and anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Here, the jury saw pictures of the object used, and was free to believe appellant did not intend a use of the object in which it was capable of causing "serious bodily injury" or death, as opposed to the "bodily injury" requirement of the lesser included offense. The jury was presented with testimony from C.R.B. that he was virtually unfazed from the blow to his head, and that after the blow C.R.B. was laughing about it because "I got a hard head. I ain't going to lie. I got a hard head." C.R.B. also clarified his earlier testimony concerning appellant's having picked up a "two by four" as the two women were fighting as follows: Q.[Trial Counsel] Okay. Now, when you told him he better know what he was doing with that stick, what did you mean by that? A.[C.R.B.] It was like - - I weigh about 280, right? Q. All right. A. You pick up a two by four against me and you think it's going to hurt me? It's going to break. The complainant was a very large figure and there was a significant disparity in the sizes of appellant and C.R.B. Appellant's testimony was that neither he nor his girlfriend wanted trouble from C.R.B. or C.R.B.'s wife. Nevertheless, a group of people, including C.R.B. followed appellant and his girlfriend as they attempted to leave; a fight took place between the women; and C.R.B. not only refused to break up the fight, but physically grabbed appellant to prevent him from helping his girlfriend. At the time C.R.B. was struck in the head, from appellant's testimony, C.R.B. had already grabbed him and had refused to allow appellant and his girlfriend to leave the apartment complex. Appellant explained the assault on C.R.B. in the following way: Q.[Trial Counsel] Did you plan on assaulting him or anything like that? A.[Appellant] No, sir. I didn't plan on assaulting anybody that day. I didn't want nobody to fight. Q. Did you pick up that thing because it was handy right there? A. At that particular time, that's -- after [C.R.B.] chucked the bottle, I looked and I seen something that I could pick up and I just picked it up and it was there. Q. Why didn't you just throw it at him? A. He's kind of a big fellow, you know. I don't -- at that particular time my intention was to hopefully get in the house where we can get our stuff and just have something that, you know that I could defend myself with if everybody tried to rush us like they did the first time. The evidence was in conflict, and a rational jury could have concluded that appellant intended a use of the object in which it was not capable of causing serious bodily injury or death. There was some evidence in the record that established the lesser included offense of misdemeanor assault as "a valid, rational alternative to the charged offense." Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). Under the circumstances, appellant was entitled to the jury instruction on misdemeanor assault. The State concedes this error occurred. The State also concedes the charge error was harmful. When error is preserved at trial, the appellate court examines whether there was some harm to the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opinion on rehearing). Given that the minimum punishment for the felony aggravated assault is greater than the maximum possible punishment for misdemeanor assault, the error was harmful. We sustain appellant's issue number one. We need not conduct a factual sufficiency review, as appellant would be entitled to no greater relief. The judgment of the trial court is reversed and the cause remanded to that court for further proceedings. REVERSED AND REMANDED. PER CURIAM Submitted on February 6, 2004 Opinion Delivered February 18, 2004 Do Not Publish Before McKeithen, C.J., Burgess, and Gaultney, JJ. 1. At the time of the assault, appellant was 5' 11" and weighed 150 pounds while C.R.B. was 6' 2" and weighed 280 pounds. 2. Appellant requested and the jury was instructed on deadly force in defense of person under the provisions of Tex. Pen. Code Ann. § 9.32 (Vernon 2003).