Billy Joe McCullough, Jr. v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00010-CR BILLY JOE McCULLOUGH, JR., Appellant v. The State of Texas, Appellee From the 82nd District Court Falls County, Texas Trial Court # 7777 MEMORANDUM Opinion A jury convicted Billy Joe McCullough, Jr. of aggravated assault. The court assessed his punishment at fifteen years’ imprisonment. McCullough contends that the evidence is legally and factually insufficient to prove that he intended to cause serious bodily injury; that the court erred by failing to submit a self-defense instruction involving the use of non-deadly force; that the court abused its discretion by admitting an officer’s testimony that McCullough refused to talk before his arrest without a lawyer present and that a witness at the scene identified McCullough as the assailant; and that the court abused its discretion by admitting an affidavit made by McCullough’s former wife to obtain a protective order against him. We will affirm. Sufficiency Of The Evidence McCullough contends in his first and second issues respectively that the evidence is legally and factually insufficient to prove that he intended to cause serious bodily injury to the victim Richard Smart, Jr. In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex. Crim. App. 2003). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In reviewing a claim of factual insufficiency, we ask only one question: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). McCullough does not dispute that Smart suffered serious bodily injury as a result of the assault. Rather, he contends that there is no evidence that he intended to cause serious bodily injury to Smart by hitting and kicking him. The more precise issue, however, is whether there is legally and factually sufficient evidence that he intentionally or knowingly caused serious bodily injury to Smart. The Penal Code defines the terms “intentionally” and “knowingly” as follows. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(a), (b) (Vernon 2003). [A] jury may infer intent [or knowledge] from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of wounds inflicted on the victims. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)); Watson v. State, No. 10-03-216-CR, 2005 Tex. App. LEXIS 1505, at *5 (Tex. App.—Waco Feb. 23, 2005, no pet. h.). On the date in question, Smart was intoxicated and confronted McCullough about the manner in which McCullough was treating McCullough’s wife (who was also Smart’s cousin). Smart uttered threatening words and reached in his pocket. McCullough thought Smart was about to shoot him, so McCullough hit Smart in the face, knocking him to the ground. Smart suffered a laceration to the back of the head when he fell to the ground. One witness to the altercation, Cassandra Alexander, testified that Smart was lying motionless and McCullough was about to kick him again. She told McCullough to stop, and he did. Another witness, Winston Clark, testified that he elevated Smart’s head because he was concerned that Smart might choke on his own blood. McCullough then kicked Clark by mistake, thinking that Smart was getting up. A third witness, Bonnie Gaston, was in a house next door to the lot where the altercation occurred. She testified that a female (Alexander) came knocking on the door asking to use the telephone to call 9-1-1, stating, “This man’s going to kill this other man.” Gaston went outside and saw Smart lying motionless on the ground. She saw McCullough straddling Smart’s body, hitting him in the face. People in the crowd were yelling, “You’re going to kill him.” When McCullough stood up, Gaston testified that he stomped on Smart’s midsection then kicked him in the side. McCullough took the stand in his own defense. He admitted to hitting Smart at least six times, five of those times being after Smart fell to the ground. He then stomped Smart on the forehead. A physician who examined Smart in the emergency room testified that he suffered a closed head injury and that his condition was “extremely serious.” A doctor who treated Smart at a second hospital testified that he suffered multiple facial fractures and a perforation of the small intestine, which the doctor described as “life threatening” due to a significant risk of infection absent surgical intervention. The jury heard evidence that McCullough persisted in assaulting Smart even after people in the crowd warned him that he may kill Smart if he continued. Alexander went to get help because she thought McCullough was “going to kill” Smart. The jury heard testimony that McCullough continued to hit and kick or stomp on Smart even after he was unconscious. Based on the evidence presented, we hold that the record contains legally and factually sufficient evidence that McCullough intentionally or knowingly caused serious bodily injury to Smart. Cf. Dale v. State, 90 S.W.3d 826, 833 (Tex. App.—San Antonio 2002, pet. ref’d) (evidence that defendant hit victim first, that defendant kicked victim who “was on the floor and not fighting back,” that victim’s “injuries to his face and head were consistent with numerous blows by a fist or by kicking,” and that victim “died as a result of complications resulting from an assault . . . shows that defendant intentionally caused serious bodily injury”). Accordingly, we overrule McCullough’s first and second issues. Self-Defense Instruction McCullough contends in his third issue that the court improperly submitted the issue of self-defense in the jury charge because there was evidence that he did not use deadly force during the assault. McCullough did not request an instruction on self-defense using non-deadly force, and he did not object to the self-defense instruction submitted. Therefore, he can prevail on this issue only if he shows that the charge was erroneous and he suffered egregious harm as a result. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Steadman v. State, No. 10-03-00168-CR, 2005 Tex. App. LEXIS 602, at *9 (Tex. App.—Waco Jan. 26, 2005, pet. filed). The law of self-defense varies depending on whether the accused used deadly force. Section 9.01(3) of the Penal Code defines the term “deadly force” as “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Pen. Code Ann. § 9.01(3) (Vernon 2003). If non-deadly force is used, then the accused may defend himself “against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Id. § 9.31(a) (Vernon 2003). If deadly force is used however, then the accused may defend himself: (1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor’s situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary . . . to protect himself against the other’s use or attempted use of unlawful deadly force. Id. § 9.32(a) (Vernon 2003).[1] McCullough does not dispute that Smart suffered serious bodily injury as a result of the assault. As he states in his brief, “There is no doubt that there was serious bodily injury in this case.” Because McCullough’s assault “indisputably caused serious bodily injury to [Smart], [McCullough] by definition used deadly force.” See Ferrel v. State, 55 S.W.3d 586, 592 (Tex. Crim. App. 2001). Therefore, McCullough was not entitled to a self-defense instruction regarding the use of non-deadly force. Id. Accordingly, we overrule his third issue. Admission of Testimony Regarding McCullough’s Pre-Arrest Silence and Invocation of Right to Counsel McCullough contends in his fourth issue that the court abused its discretion by allowing an investigating officer to testify that McCullough told the officer at the scene of the assault that he would not provide a statement without an attorney being present. However, McCullough did not object to this testimony. Nevertheless, McCullough contends that the officer’s references to his silence and to his invocation of the right to counsel constitute fundamental error for which no objection is required to preserve error. See Tex. R. Evid. 103(d). We disagree. The Court of Criminal Appeals recently concluded that a defendant failed to properly preserve a complaint regarding the admission of testimony about his post-arrest silence. See Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex. Crim. App. 2004). The El Paso Court of Appeals has held that the erroneous admission of testimony about a defendant’s invocation of the right to counsel does not constitute fundamental error. Cacy v. State, 901 S.W.2d 691, 699 (Tex. App.—El Paso 1995, pet. ref’d). Based on these authorities, we hold that testimonial references to a defendant’s pre-arrest silence and his pre-arrest invocation of the right to counsel do not constitute fundamental error. Because McCullough did not object to the admission of this testimony, he has not preserved this issue for our review. See Tex. R. Evid. 103(a)(1); Heidelberg, 144 S.W.3d at 542-43; Cacy, 901 S.W.2d at 699. Accordingly, we overrule his fourth issue. Admission Of Protective Order Affidavit McCullough contends in his fifth issue that the court abused its discretion by admitting an affidavit made by his former wife in support of an application for a protective order because the affidavit referenced inadmissible extraneous conduct on his part. However, McCullough did not object to the admission of this evidence. McCullough suggests that the admission of the affidavit constitutes fundamental error. We disagree. See e.g. Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (defendant failed to preserve issue regarding admissibility of testimony about extraneous offenses). Because McCullough did not object to the admission of this testimony, he has not preserved this issue for our review. See Tex. R. Evid. 103(a)(1); Medina, 7 S.W.3d at 643. Accordingly, we overrule his fifth issue. Admission of Hearsay Testimony McCullough contends in his sixth issue that the court abused its discretion by permitting an officer to testify that Cassandra Alexander told him that McCullough had assaulted Smart. The prosecutor was questioning the first officer on the scene, who had found Smart lying on the ground. The officer testified that Alexander approached him. As the officer was about to testify regarding what Alexander told him, McCullough objected, “He will have a testimony [sic] from Ms. Alexander.” The court overruled this objection. The officer then testified that Alexander told him that McCullough had assaulted Smart. McCullough contends on appeal that this testimony is inadmissible hearsay. However, McCullough did not make a hearsay objection to this testimony at trial.[2] Because McCullough’s trial objection does not comport with his appellate complaint, he has not preserved this issue for our review. See Tex. R. Evid. 103(a)(1); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Ester v. State, 151 S.W.3d 660, 663 (Tex. App.—Waco 2004, no pet.). Accordingly, we overrule his sixth issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 23, 2005 Do not publish [CR25] [1] Section 9.32(a)(3)(B) also permits the use of deadly force against another when the accused reasonably believes this is “immediately necessary . . . to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” Tex. Pen. Code Ann. § 9.32(a)(3)(B). However, it does not appear that this provision applies to the facts of McCullough’s case. [2] McCullough had made an earlier objection to the officer’s testimony on the basis of hearsay. However, the court sustained this objection.