STEPHEN SCOTT KITTRELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed August 27, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00388-CR
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STEPHEN SCOTT KITTRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-81408-05
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OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Richter
        Stephen Scott Kittrell appeals his jury conviction and court-imposed fifteen-year enhanced sentence for aggravated robbery with a deadly weapon, a knife. In four issues, Kittrell complains of the legal and factual sufficiency of the evidence to support the deadly weapon finding, jury charge error, and the adequacy of the State's notice of its intent to enhance punishment. In an additional issue, Kittrell asserts he is entitled to additional back time credit. As modified, we affirm.
        
Background
        The robbery occurred April 22, 2005. The complainant, Rodney Cleary, testified that he and his family had returned home from a basketball tournament late in the evening and parked in the garage. They went into the house, leaving the garage door open. About fifteen minutes later, Cleary's wife went to the car and noticed one of their chairs in the alley. She called to Cleary who came to the garage. As Cleary looked towards the alley, he noticed his air pump and “fishing stuff” were missing and also noticed an unfamiliar truck backed into his neighbor's driveway across the alley. From his driveway, Cleary could see his items in the bed of the truck.
        Cleary approached the truck and not seeing anyone in the truck, went to the back of the truck. As he confirmed to his wife that the items were his, Cleary saw Kittrell, who was in the driver seat, and a passenger, Brian Zimmermann, “pop up” inside the truck. Cleary asked Kittrell why Kittrell had taken his air pump and, when Kittrell refused to return it, Cleary began hitting Kittrell. Zimmermann then got out of the truck, ran towards Cleary with a knife, and began “fighting” him with the knife-repeatedly “swinging” and “cutting” at him, trying to stab him. Cleary fought Zimmermann off after a few minutes and Zimmermann ran down the alley. Apparently unhurt, Cleary then resumed his confrontation with Kittrell, who was trying to start the car. When Kittrell began driving away, Cleary jumped in the truck and continued hitting Kittrell, causing Kittrell to crash into a neighbor's fence. Kittrell ran out of the car and down the alley but was quickly arrested by an officer responding to a 911 call Cleary's wife had made. When asked for his reaction to the knife, Cleary stated he was”[j]ust ticked” and didn't think about being afraid for his life or any injury because he “was just in a different world.” Cleary explained he had “had a bad day” that day and did not think much of the knife when he saw it because he was mad. Cleary admitted, however, that when he “see[s] a knife,” he wants “to protect [himself] from being stabbed because [he does] not want to die.” Cleary did not describe the knife Zimmermann used and the knife was not admitted into evidence.
        Testifying in his defense, Kittrell explained he and Zimmermann were driving around when Zimmermann asked him to turn into an alley. Although the two had not “planned anything,” Kittrell knew they would be looking for an open garage. Finding Cleary's, he backed into the driveway across the alley so he could leave quickly if necessary and stayed in the car while Zimmermann took items from the garage. When Kittrell saw Cleary, “a good-sized guy,” Kittrell knew they “would be in trouble.” Kittrell denied knowing Zimmermann had a knife and assumed Zimmermann would just leave if confronted. Kittrell testified further he had stolen items before and had been convicted of theft, forgery, and possession of a prohibited weapon.
        
Sufficiency of the Evidence
        In his first two issues, Kittrell asserts the evidence is legally and factually insufficient to support the deadly weapon finding.   See Footnote 1  In arguing these issues, Kittrell relies on Cleary's testimony about his reaction to the knife, the fact the knife was not introduced into evidence or even described, and the fact that Cleary did not testify he was injured. Kittrell maintains that without the knife or a description of the knife and without any evidence showing Cleary was injured or feared for his life, the deadly weapon finding cannot stand. We disagree.
        Our question in a sufficiency challenge is whether a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, bearing in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In reviewing a factual sufficiency challenge, we view the evidence in a neutral light and may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.
        To establish the knife was a deadly weapon, the State had to prove beyond a reasonable doubt that, in the manner of its use or intended use, the knife was capable of causing death or serious bodily injury. Tex. Penal Code Ann. §1.07(a)(17)(B) (Vernon Supp. 2007); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Williams v. State, 575 S.W.2d 30, 32 (Tex. Crim. App. [Panel Op.] 1979). To satisfy its burden, the State was not required to introduce the knife into evidence or show the presence of a wound, but could simply show the knife was displayed in a manner conveying an express or implied threat that serious bodily injury or death would result if the aggressor is not satisfied. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Magana v. State, 230 S.W.3d 411, 414 (Tex. App.-San Antonio 20007, pet. ref'd); Jones v. State, 843 S.W.2d 92, 96 (Tex. App.-Dallas 1992, pet. ref'd).
        Viewing the evidence here under the appropriate standard, we conclude the evidence was both legally and factually sufficient to support the deadly weapon finding. As stated, Cleary testified Zimmermann ran towards him-a “good-sized guy” who was mad and visibly displaying his anger-and “began fighting” him with the knife. According to Cleary, Zimmermann “swung” and “cut” at him, repeatedly trying to stab him over a period of a few minutes. Although Cleary did not specifically testify he feared for his life or feared the knife Zimmermann used would cause serious bodily injury, he testified when he “sees a knife” he wants “to protect himself from being stabbed because [he does] not want to die.” From this testimony, Zimmermann's actions, and Cleary's size and state of mind the jury could have reasonably inferred that the knife Zimmermann used was capable of causing death or seriously bodily injury. That the knife was not introduced into evidence nor described and that Cleary might not have been injured is of no import. See Magana, 230 S.W.3d at 414; Jones, 843 S.W.2d at 96. We resolve Kittrell's first two issues against him.
Charge Error
        In his fourth issue, Kittrell complains of jury charge error. Specifically, Kittrell complains of the following jury instruction and corresponding application paragraph:
 
        If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
 
 
 
        Therefore, if you find and believe from the evidence beyond a reasonable doubt that, in the attempt to carry out a conspiracy to commit one felony, one of the conspirators, in furtherance of the unlawful purpose, committed the offense of aggravated robbery, and the offense of aggravated robbery was one that STEPHEN SCOTT KITTRELL should have anticipated as a result of the carrying out of the conspiracy, then you will find him guilty as charged.        
 
Arguing this language amounted to a charge under penal code section 15.02 which concerns the offense of criminal conspiracy, see Tex. Penal Code Ann. § 15.02 (Vernon 2003), Kittrell maintains the court erred in submitting the language because he had been indicted only for the offense of aggravated robbery and not conspiracy. Kittrell also argues that inclusion of this language required the court to include a definition of “conspiracy” as set out in section 15.02 and a separate verdict form for that offense, neither of which the trial court did. Again, we disagree.
        We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). When reviewing a challenge to the jury charge, we first determine whether error actually exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). In determining whether error exists, we examine the charge as a whole, considering the workable relationship between the abstract paragraphs of the charge-the instructions and definitions-and those applying the abstract law to the facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.-Dallas 1998, pet. ref'd). The abstract paragraphs act as a “glossary” to facilitate the jury's understanding of the concepts and terms used in the application paragraphs of the charge and must include those words defined by statute and those which cannot be understood in light of common usage. Plata, 926 S.W.2d at 302; Purtell v. State, 761 S.W.2d 360, 375 (Tex. Crim. App. 1988); Caldwell, 971 S.W.2d at 666. A charge is adequate if it (a) sets forth the law applicable to the case as determined by the allegations in the indictment and evidence presented at trial and (b) contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007); Plata, 926 S.W.2d at 304; Chancelor v. State, 205 S.W.2d 581 (Tex. Crim. App. 1947); Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.-Austin 1999, pet. ref'd); Caldwell, 971 S.W.2d at 666. If we determine error exists and the charge is inadequate, we then assess whether any resulting harm requires reversal. Ngo, 175 S.W.3d at 743.
        Reviewing the complained-of language, we conclude no error occurred. Contrary to Kittrell's argument, the charge did not instruct the jury to consider whether he was guilty of the separate offense of criminal conspiracy set out in section 15.02 of the penal code. That section requires a showing that the defendant, with the intent that a felony be committed, agree with one or more persons to engage in conduct that would constitute the offense and that the defendant or one or more of those persons perform an overt act in furtherance of the agreement. Tex. Penal Code Ann. § 15.02(a). The complained-of language here, however, instructed the jury on an alternative criminal responsibility theory: the “party through a conspiracy” theory set out in penal code section 7.02(b). See id. §7.02; Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989). Section 7.02(b) addresses an attempt to carry out a conspiracy and spells out how an actor can be held criminally responsible for an offense committed by another, when the actor does not have the specific intent to commit that offense. English v. State, 592 S.W.2d 949, 954 (Tex. Crim. App. 1980); Wood v. State, 4 S.W.3d 85, 89-90 (Tex. App.-Fort Worth 1999, pet. ref'd). While separate offenses must generally be individually alleged in an indictment before the jury may be charged on it and must have separate verdict forms, a theory of criminal responsibility under the law of parties need not. Montoya, 810 S.W.2d at 165; Hernandez v. State, 198 S.W.3d 257, 269 (Tex. App.-San Antonio 2006, pet. ref'd). We conclude Kittrell's argument that the court erred in charging the jury on conspiracy when he had not been charged with that offense and in failing to provide a separate verdict form is without merit.
        We also conclude Kittrell's argument that the court erred in not defining “conspiracy” as set out in section 15.02 is without merit. Because he was not indicted and the jury was not charged under that section, no need existed to include that definition in the charge. See Tex. Code Crim. Proc. Ann. art. 36.14; Caldwell, 971 S.W.2d at 666 (function of charge is to instruct jury on law applicable to case). Additionally, while section 15.02 defines “conspiracy,” section 7.02(b) does not, and the trial court was not required to define the term when section 7.02 does not define itself. See Tex. Penal Code Ann. §§ 7.02, 15.02(a); Ladd v. State, 3 S.W.3d 547, 565 (Tex. Crim. App. 1999) (trial court need not have defined “conspiracy” for purposes of section 7.02(b) when penal code does not define term for such purposes). We resolve Kittrell's fourth issue against him.
 
Enhancement of Punishment
        In his third issue, Kittrell complains of the adequacy of the State's notice of intent to enhance punishment. The notice, sent via electronic mail eleven days before trial, informed Kittrell the State would use a prior burglary conviction and third degree felony theft conviction for enhancement purposes and listed the date of the conviction and the court in which the conviction was obtained. The notice, however, referenced a cause number other than the instant one and did not contain the cause numbers of the prior convictions. Although he did not object to the notice at trial, Kittrell now asserts the error and “deficiency” in the notice, along with the fact that the case had been set for trial for more than six months when the State sent the notice, rendered the notice inadequate. Having failed to object to the notice at trial, however, Kittrell has failed to preserve error for our review. Tex. R. App. P. 33.1; Callison v. State, 218 S.W.3d 822, 826 (Tex. App.-Beaumont 2007, no pet.). We resolve Kittrell's third issue against him.
Back Time Credit
        In his final issue, Kittrell complains the trial court's judgment incorrectly reflects February 22, 2007, the day he was originally scheduled to be sentenced, as the last date for back time credit. Because the trial court did not sentence him until March 1, 2007 and he remained in jail through sentencing, Kittrell argues that date should be the last date for back time credit. The State agrees, as do we. Article 42.03 of the Texas Code of Criminal Procedure specifically provides that a defendant is entitled to back time credit for time spent in jail from the time of his arrest until he is sentenced. Tex. Code Crim. Proc. art. 42.03, §2(a)(1) (Vernon Supp. 2007). Accordingly, we sustain this issue and modify the judgment to reflect Kittrell is entitled to back time credit through March 1, 2007. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).         We also modify the judgment to correct the court's failure to record Kittrell's plea of “not true” and the court's affirmative finding of “true” to the first enhancement paragraph-the burglary conviction. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28.
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070388F.U05         
 
Footnote 1          Although Kittrell did not personally use or exhibit the knife, the court's charge to the jury authorized his conviction, and thus deadly weapon finding, upon a finding that he was a party who directed or assisted Zimmermann in the commission of the robbery or a party through a conspiracy. See Tex. Penal Code Ann. §§ 7.01, 7.02 (Vernon 2003). The jury returned a general verdict and Kittrell does not dispute he committed the offense under any of the theories of criminal responsibility submitted to the jury.