in Re Gregory Mitchell Sarkissian

IN THE TENTH COURT OF APPEALS No. 10-07-00360-CR In re Gregory Mitchell Sarkissian Original Proceeding MEMORANDUM Opinion Gregory Mitchell Sarkissian seeks a writ of mandamus compelling Respondent, the Honorable J. D. Langley, Judge of the 85th District Court of Brazos County, to rule on his motion for judgment nunc pro tunc, in which Sarkissian requests pre-sentence jail time credit. The State responds that Sarkissian is not entitled to the relief requested because: (1) he has presented no evidence that Respondent had actual knowledge of his motion; and (2) he is not entitled to the pre-sentence jail time credit which he seeks. We will deny Sarkissian’s petition. A jury convicted Sarkissian of burglary of a habitation in March 1994 and assessed his punishment at eighty years’ imprisonment. The Fourteenth Court of Appeals affirmed the conviction in August 1995. See Sarkissian v. State, No. 14-94-00395-CR, 1995 WL 490962 (Tex. App.—Houston [14th Dist.] Aug. 17, 1995, no pet.) (not designated for publication). Sarkissian later filed a motion for judgment nunc pro tunc in which he contends that he is entitled to additional pre-sentence jail time credit. Respondent has not ruled on this motion. Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain mandamus relief for such refusal, a relator must establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at 679. The mere filing of a motion with a trial court clerk does not equate to a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680 (“Relator has made repeated requests for a ruling on its motion.”). Here, there is nothing in the limited record before this Court to establish that Sarkissian has ever requested a ruling on his motion for judgment nunc pro tunc or otherwise called that motion to Respondent’s attention. Therefore, we deny Sarkissian’s petition for mandamus relief. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the result with the following note: “For the reasons expressed in my dissent to the request for a response dated January 9, 2008, I concur in the denial of Sarkissian’s petition for writ of mandamus only without a separate opinion.”) Petition denied Opinion delivered and filed February 6, 2008 [OT06] :"Palatino","serif"'>[2] to those provided by section 6.03 of the Penal Code. See Tex. Pen. Code Ann. § 6.03(a), (b) (Vernon 2003). The definitions in the abstract portion of the charge read as follows: 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. A person acts knowingly, or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct. 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. Id. The application paragraph for the indecency charge, consistent with the indictment, instructed the jurors in pertinent part that they must find Garcia guilty if they found beyond a reasonable doubt that he did, “with the intent to arouse or gratify the sexual desire of the Defendant, intentionally or knowingly engage in sexual contact with [complainant] by touching the breast of [complainant].” Abstract Definitions The first part of Garcia’s complaint is that the abstract definitions quoted above are erroneously broad because they do not limit the mens rea definitions to “intent” and “nature of the conduct.” Garcia’s complaint is based on the fact that he was convicted of indecency with a child. However, he fails to consider that the charge also included definitions and instructions regarding the allegation of aggravated sexual assault of which the jury acquitted him. To obtain a conviction for aggravated sexual assault as alleged, the State had to prove that Garcia intentionally or knowingly caused the child complainant’s sexual organ to contact or be penetrated by his own sexual organ. Id. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2009). Conversely, to obtain a conviction for indecency with a child by contact, the State had to prove that Garcia engaged in the contact “with the intent to arouse or gratify the sexual desire of any person.” Id. § 21.11(a)(1), (c) (Vernon Supp. 2009). This is the only mens rea required to prove indecency by contact. See McKenzie v. State, 617 S.W.2d 211, 213 (Tex. Crim. App. [Panel Op.] 1981); Claycomb v. State, 988 S.W.2d 922, 925 (Tex. App.—Texarkana 1999, pet. ref’d); Washington v. State, 930 S.W.2d 695, 698 (Tex. App.—El Paso 1996, no pet.). Garcia contends that, because indecency is a nature-of-conduct offense rather than a result-oriented offense and because indecency must be committed with the requisite intent rather than knowingly, the abstract definitions should have been limited to “intent” and “nature of the conduct.” See Whitfield v. State, No. 01-96-00908-CR, 2001 WL 40654, at *1 (Tex. App.—Houston [1st Dist.] Jan. 18, 2001, pet. ref’d) (not designated for publication); Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. ref’d); see also Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994) (court erred by failing to limit abstract definitions of culpable mental states in charge to requisite culpable mental state(s) of offense alleged); Battaglia v. State, No. 05-06-00798-CR, 2007 WL 4098905, at *2 (Tex. App.—Dallas Nov. 19, 2007, no pet.). However, the mens rea required to prove aggravated sexual assault is that the defendant acted either intentionally or knowingly. See Tex. Pen. Code Ann. § 22.021(a)(1)(B). Aggravated sexual assault is a conduct-oriented offense which means that the focus of the offense is on whether the defendant acted intentionally or knowingly with respect to the nature of his conduct rather than the result of his conduct. See Gonzales v. State, No. PD-0337-09, 2010 WL 625056, at *7 (Tex. Crim. App. Feb. 24, 2010) (citing Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999)). Thus, Garcia’s complaint has some merit. The court properly included abstract definitions in the charge for both “intentional” and “knowing” conduct. However, the court erred by failing to limit these definitions to the nature of the defendant’s conduct rather than the result of his conduct. See Hughes, 897 S.W.2d at 296; Battaglia, 2007 WL 4098905, at *2; Whitfield, 2001 WL 40654, at *1; Rodriguez, 24 S.W.3d at 502. Because Garcia failed to object, reversal is required only for egregious harm. Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009); Battaglia, 2007 WL 4098905, at *1; Whitfield, 2001 WL 40654, at *2; Rodriguez, 24 S.W.3d at 503. Citing Plata v. State, the State characterizes each of these abstract definitions as a superfluous instruction which “never produces reversible error in the court’s charge because it has no effect on the jury’s ability fairly and accurately to implement the commands of the application paragraph.” 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). However, the Court in Plata also observed, “Reversible error only occurs in the giving of an abstract instruction when the instruction is an incorrect or misleading statement of a law which the jury must understand in order to implement the commands of the application paragraph.” Id. at 302. Here, Garcia’s complaint potentially fits within the category of “reversible error” identified in Plata because the challenged definitions were incorrect with regard to the culpable mental state which the jury must find in order to convict him of indecency by contact. And this error is magnified to the extent that the application paragraph itself misstates the requisite culpable mental state. Thus, we will examine the record for egregious harm under the standard first enunciated in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). See Dougherty v. State, No. PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. Mar. 1, 2006) (per curiam) (not designated for publication). “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information [revealed] by the record of the trial as a whole.” Trejo, 280 S.W.3d at 261 (quoting Almanza, 686 S.W.2d at 171). Application Paragraph Because we must consider “the entire jury charge,” we now address the second part of Garcia’s complaint, namely, that the application paragraph erroneously instructed the jury to convict upon finding that he, with intent to gratify his own sexual desire, intentionally or knowingly engaged in sexual contact with the child by touching her breast. As discussed above, the sole mens rea required to prove indecency by contact is acting with the intent to gratify a person’s sexual desire. See McKenzie, 617 S.W.2d at 213; Claycomb, 988 S.W.2d at 925; Washington, 930 S.W.2d at 698. The application paragraph also required a finding that Garcia intentionally or knowingly engaged in the sexual contact. The State suggests that this did not harm Garcia because it only served to increase the State’s burden at trial. See Caballero v. State, 927 S.W.2d 128, 131 (Tex. App.—El Paso 1996, pet. ref’d). But it also may have caused confusion among the jurors or led them to believe that Garcia could be convicted on a finding of knowing conduct. See Bazanes v. State, No. 02-08-00358-CR, 2010 WL 598724, at *3 (Tex. App.—Fort Worth Feb. 18, 2010, no pet.); Cavazos v. State, No. 13-04-00075-CR, 2005 WL 2008417, at *2 (Tex. App.—Corpus Christi Aug. 22, 2005, no pet.) (not designated for publication); Whitfield, 2001 WL 40654, at *1; see also Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (“The function of a jury charge is not ‘merely to avoid misleading or confusing the jury,’ but ‘to lead and to prevent confusion.’”) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Thus, the charge is erroneous not only because it failed to limit the abstract definitions concerning intent and knowledge to the nature of the defendant’s conduct but also because it failed to limit the application paragraph to the sole requisite mens rea for indecency by contact, namely, acting with intent to gratify the sexual desire of any person. Bazanes, 2010 WL 598724, at *3; Cavazos, 2005 WL 2008417, at *2; Avery v. State, No. 05-02-00735-CR, 2004 WL 78042, at *1 (Tex. App.—Dallas Jan. 20, 2004, pet. ref’d) (not designated for publication); Whitfield, 2001 WL 40654, at *1; Rodriguez, 24 S.W.3d at 502. Egregious Harm We have identified two errors in the charge concerning the applicable mens rea. Conversely, the charge correctly instructed the jury on the substantive law for the offense of indecency with a child thus informing the jury of what the State had to prove. See Bazanes, 2010 WL 598724, at *3; Cavazos, 2005 WL 2008417, at *3. Within the context of the charge as a whole, the errors identified appear less harmful. See Bazanes, 2010 WL 598724, at *3. The only contested issue at trial was the credibility of the complainant. Garcia denied that the incident occurred. He tried to explain away DNA evidence supporting the complainant’s testimony. His intent was not at issue. The State presented sufficient evidence from which his intent could be inferred. Id., at *4; Avery, 2004 WL 78042, at *2; Whitfield, 2001 WL 40654, at *2; Rodriguez, 24 S.W.3d at 503. The parties did not address Garcia’s intent during closing argument, so the erroneous instructions were not highlighted or relied on by the State to obtain a conviction. See Bazanes, 2010 WL 598724, at *4. To summarize, notwithstanding the erroneous instructions the charge correctly instructed the jury on the substantive law for the offense of indecency with a child. Evidence was not offered to suggest that Garcia acted without the requisite intent other than his evidence that he did not commit the offense, and the evidence supports a finding that he acted with the requisite intent. The parties did not address Garcia’s intent in closing argument. Accordingly, we hold that Garcia did not suffer egregious harm from the errors in the court’s charge. See Bazanes, 2010 WL 598724, at *3-5; Avery, 2004 WL 78042, at *2; Whitfield, 2001 WL 40654, at *2; Rodriguez, 24 S.W.3d at 503. We overrule Garcia’s sole issue and affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurs with the Court’s judgment to the extent that it affirms the trial court’s judgment. He does not join the opinion. A separate opinion will not issue.) Affirmed Opinion delivered and filed March 31, 2010 Do not publish [CR25] [1] The jury acquitted Garcia of aggravated sexual assault. [2] The court did not include the portions of the statutory definition of “knowingly” which refer to a person acting knowingly with respect to the circumstances surrounding his conduct. Cf. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003).