Aaron K. Christoffersen v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-450 CR ____________________ AARON K. CHRISTOFFERSEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 05-05-04011-CR MEMORANDUM OPINION Aaron K. Christoffersen appeals his conviction for aggravated assault. See Tex. Pen. Code Ann. § 22.02(a)(1) (Vernon Supp. 2006). The two-count indictment alleged Christoffersen knowingly or recklessly caused serious bodily injury to the two passengers in his vehicle "by recklessly operating a motor vehicle and colliding said motor vehicle with a pole. . . ." The jury found Christoffersen guilty on both counts and found he used a deadly weapon in the commission of the offense. Christoffersen pled true to being a repeat offender and the court assessed punishment at eight years of confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice. On appeal, Christoffersen contends the trial court abused its discretion in preventing defense counsel from arguing to the jury the legal meaning of reckless and erred in allowing lay witnesses to make legal conclusions regarding whether Christoffersen was reckless. We affirm. In closing argument, defense counsel argued to the jury, as follows: Let's talk about some of the specific evidence in this case. Aaron and myself, we will concede that [the passengers in Christoffersen's vehicle] suffered serious bodily injury. That's obvious. We are not fighting that. However, Aaron Christoffersen did not intend to cause his friends serious bodily injury. He didn't intend, he didn't desire, he didn't want that to happen. Let's talk about what the Government is going to focus on because I already know where they are going with this. And I think you understand that, too, with what they ended with with (sic) their case. The Government will argue that Aaron Christoffersen "recklessly" -- this is the magic word that we are going to be dealing with here. "Recklessly." They are going to argue that he recklessly -- because of a combination of factors; weather, road, conditions, speed and marijuana. That's what they are going to focus on. But I'm telling you, when you deal with aggravated assault, the only thing that matters is did the actor, did Aaron [] intend to cause serious bodily injury to his friends. That's all that is going to matter. The State did not object to that part of counsel's argument. Defense counsel continued to develop this argument and the State began making objections. The trial court did not sustain the State's first objection, but referred the jury to the definition of "recklessness" contained in the jury charge, when defense counsel argued that "[t]hey need to show you Aaron desired, that he intended, that he wanted serious bodily injury on his two friends who are sitting with him here. . . ." The trial court sustained the State's subsequent objection to defense counsel's arguments: (1) that all three culpable mental states "mean intent, desire or want" and that "[r]ecklessness just happens to be the lowest form of it, but there has to be some desire, intent or want;" and (2) that "[y]ou have to have some type of intent. Some level of desire, intent or want." The trial court did not instruct the jury to disregard the objected-to arguments. The culpable mental state of recklessness requires a conscious disregard of a substantial and unjustifiable risk that the result will occur. See Tex. Pen. Code Ann. § 6.03© (Vernon 2003). In the context of a prosecution for assault, proof of recklessness does not require that the actor desire, intend, or want serious bodily injury to occur. See id. The trial court did not abuse its discretion in sustaining the State's objection. To support his contention that trial counsel's argument correctly explained the jury charge, Christoffersen cites two cases in which the trial court refused the defendant's request to charge the jury on a lesser included offense. See Benge v. State, 94 S.W.3d 31 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd); Bell v. State, 693 S.W.2d 434, 438 (Tex. Crim. App. 1985). In Benge, the appellate court held that under the facts of that case reckless driving was a lesser included offense of aggravated assault with a motor vehicle. Benge, 94 S.W.3d at 36-37. Because the State charged assault by threat, the greater culpable mental state for intentional conduct was at issue in the case. Id. at 35. In Bell, the appellate court held that under the facts of that case reckless conduct was a lesser included offense of aggravated assault with a deadly weapon. Bell, 693 S.W.2d at 436. The appellate court reasoned that, because the danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense, proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury. Id. at 438-39. Neither case supports the proposition, stated in Christoffersen's jury argument, that a culpable mental state of recklessness requires proof of an intent to cause serious bodily injury. The trial court does not err when it prohibits defense counsel from making an incorrect statement of the law in his closing argument. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Because we find no abuse of the trial court's discretion, we overrule Christoffersen's first issue. In his second issue, Christoffersen contends the trial court erred in allowing three lay witnesses to make legal conclusions as to the word "reckless." Both a trooper who investigated the accident and one of Christoffersen's passengers testified without objection that Christoffersen operated his vehicle in a reckless manner. An assistant district attorney witnessed the accident and at trial testified that she drove her vehicle off of the road and into a ditch to avoid a head-on collision with the appellant as he traveled in her lane of traffic at a high rate of speed. During the punishment phase she explained to the jury the impact the accident had on her personally. The prosecutor asked the witness, "What are your observations of the nature of the actual offense committed by this defendant based on your observations on the road that day?" The witness responded, "I think it was incredibly dangerous." Defense counsel waited until cross-examination to object and ask to strike her direct examination testimony. Error may not be predicated upon admission of evidence unless a specific objection is timely made. Tex. R. Evid. 103(a)(1). Because Christoffersen failed to contemporaneously object to the witnesses' testimony, no error is presented for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule Christoffersen's second issue and affirm the judgment. AFFIRMED. ______________________________ STEVE McKEITHEN Chief Justice Submitted on March 22, 2007 Opinion Delivered May 9, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.