Coy Brown, Jr. v. The State of Texas--Appeal from 63rd Judicial District Court of Edwards County

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MEMORANDUM OPINION
No. 04-03-00009-CR
Coy BROWN, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Edwards County, Texas
Trial Court No. 1428
Honorable James M. Simmonds, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 3, 2004

REVERSED AND REMANDED

Coy Brown, Jr. appeals his conviction of aggravated assault with a deadly weapon. Although Brown asserts seven points of error on appeal, we find that points of error three and five are dispositive of this appeal. We sustain Brown's third point of error regarding error in the jury charge, reverse the trial court's judgment, and remand the cause to the trial court for a new trial. We do not address Brown's other points of error because they are not necessary to the final disposition of this appeal. See Tex. R. App. P. 47.1.

Background

The charges against Brown stemmed from an incident in which Juan Mauricio Gonzalez was shot in the upper buttocks. Brown's version of the events leading to his arrest differs significantly from the testimony of Gonzalez and two other witnesses. Brown's version of the events is also inconsistent with the results of the sheriff's investigation.

Jessica Brown, who was married to Brown at the time of the incident, stated that Brown and she were driving into Del Rio for groceries. As they started down the road, they saw two Mexican men coming toward them. Brown stopped and exited the car with a gun. He motioned for the men to turn around and go back away from the ranch. Brown was responsible for security at the ranch. When one of the men veered off the side of the road, Brown fired shots in the man's direction. When the man continued to walk away from the road, Brown fired a few more shots. The man returned to the road, and Brown and Jessica followed the men to the next ranch. A worker at that ranch asked Brown why he had shot the man. On cross-examination, Jessica admitted that she had lied in her statement to the sheriff on the day the incident occurred because she was afraid of Brown. Jessica also testified that she was in the process of divorcing Brown and was questioned regarding whether the possible property division had an effect on her testimony.

Gonzalez testified that he and Juan Torres were walking down the road when they encountered Brown. Brown pulled out a cellular phone and told them that he had called immigration. Brown told them to turn around and go back. When Gonzalez went off the road into an open area, Brown shot at Gonzalez four times, hitting Gonzalez on the fourth time. After he was shot, Gonzalez returned to the road. Gonzalez testified that he was in pain but continued walking about two hours to the next ranch. At the next ranch, Gonzalez told one of the workers that he had been shot. Gonzalez testified that Brown told the worker that the men had broken a window. The worker called the sheriff and Brown left. Gonzalez stated that he was carrying a backpack at the time with items he had purchased in Mexico including some cans of beans. Gonzalez stated that he was carrying a water jug, but he never swung it at Brown. Gonzalez stated that he never broke a window and never broke into any home, cabin, or trailer. On cross-examination, Gonzalez admitted that he was in the country illegally. Defense counsel also questioned Gonzalez regarding the contents of his backpack and whether some bedding was cleaner than the other items. On re-direct examination, Gonzalez testified that the holes in his backpack were caused by the shots fired by Brown, and a can of beans in the backpack was leaking.

Juan Bernardino Torres testified that he was a distant relative of Gonzalez. Torres stated that when they encountered Brown on the road, Brown showed them a cell phone. Torres did not speak English. Brown gestured for them to go back in the direction from which they came. At some point, Gonzalez turned away from the road into an open area. Brown exited the car with a gun and gestured for Gonzalez to return to the road. When Gonzalez kept walking, Brown shot at him four times. Gonzalez told Torres that he had been shot. Gonzalez returned to the road, and they continued walking for about two hours. At the next ranch, they went to ask for help. The man at the ranch told them that Brown had reported them to immigration. Torres was uncertain what the man at the ranch told Brown. After Brown left, the man at the ranch asked them what they had done because Brown told him that they had broken a window. After the sheriff and a border patrol agent arrived, Gonzalez was taken to the hospital, and Torres accompanied the officers to explain what had occurred. The officers found four shell casings at the location where Torres said the shots had been fired. On cross-examination, Torres admitted that he was in the country illegally.

Sheriff Donald Gary Letsinger testified that when he questioned Brown, Brown stated that Gonzalez and Torres had been in a cabin on the ranch. Brown told the sheriff that while he was investigating the cabin, Gonzalez and Torres ran out. When Gonzalez lifted a water jug as if to hit Brown, Brown fired shots at him. When questioned regarding the four shell casings located on the road, Brown stated that he had picked the casings up from the shots he fired at the cabin and later tossed them out the window. After questioning Brown, Sheriff Letsinger accompanied Brown back to the ranch. During questioning, Brown identified some bedding as possibly having been taken from the cabin. Sheriff Letsinger accompanied Brown to the cabin. Sheriff Letsinger noted that no bedding was missing, and the bedding that Gonzalez and Torres had was unlike the bedding at the cabin. Sheriff Letsinger also inspected the area through which Brown stated he walked to reach the cabin. Although the area consisted of black dirt, no footprints were visible. Sheriff Letsinger also stated that the owners of the ranch never reported any burglary of the cabin.

Brown testified that while on the way to Del Rio, he noticed some footprints leading from the road to a hunter's cabin located on the ranch. Brown parked the car, and Brown and Jessica walked toward the cabin. Brown heard noises in the cabin. The door was flung open, and Torres and Gonzalez ran out. Brown ordered them to stop and drew his gun. Brown testified that Gonzalez took a few steps toward him and started to raise the water bottle attached to his wrist. Brown thought the water bottle was made of glass. Brown fired two shots and then an additional two shots into the air. Brown testified that he did not have the opportunity to retreat because he moves slowly due to injuries he suffered while in the military.

After hearing the testimony, the jury found Brown guilty of aggravated assault with a deadly weapon.

Jury Charge

When a defendant complains of a charge error on appeal, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is error, we must determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71. The degree of harm necessary for reversal depends upon whether the error was preserved. Id. at 171. Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless. Id. This has been interpreted to mean any harm, regardless of degree, is sufficient to require reversal when error is preserved. Id. However, when the charging error is not preserved a greater degree of harm is required. Id. If no objection is made, we will reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Egregious harm includes errors: (1) affecting the case's foundation; (2) denying the defendant a valuable right; (3) significantly affecting a defensive theory; or (4) making the case for guilt or punishment clearly and substantially more compelling. Hutch, 922 S.W.2d at 171; Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Hutch, 922 S.W.2d at 171.

A. Error - Inclusion of "Knowingly"

In his third point of error, Brown asserts that the trial court erred in charging the jury on the culpable mental state of "knowingly" because the indictment only charged Brown with the culpable mental state of "intentionally." The jury charge must not enlarge the offense alleged and authorize the jury to convict the defendant on a basis or theory permitted by the jury charge but not alleged in the indictment. See Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003); Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.--Austin 1999, pet. ref'd). Accordingly, the trial court erred in improperly broadening the indictment by including "knowingly" in the jury charge when the indictment alleged only "intentionally." See Reed, 117 S.W.3d at 265; Wells v. State, 762 S.W.2d 673, 674 (Tex. App.--Texarkana 1988, pet. ref'd).

B. Error - Failure to Limit Application Paragraph

Aggravated assault is a result-oriented offense. Cole v. State, 46 S.W.3d 427, 433 (Tex. App.--Fort Worth 2001, pet. ref'd); Ford v. State, 38 S.W.3d 836, 844 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). In his fifth point of error, Brown contends that the trial court erred in not properly restricting the culpable mental state to the result of the offense in the application paragraph of the charge.

The jury charge properly limited the definitions of the culpable mental state to the result in the abstract portion of the charge. The jury charge states, "A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. A person acts knowingly, or with knowledge, with respect to a result of its conduct when he is aware that his conduct is reasonably certain to cause the result." In the application paragraph, however, the mental state was not properly limited to the result. The application paragraph reads as follows:

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that the Defendant, Coy Brown, Jr., on or about the 10th day of April 2000, in Edwards County, Texas, did then and there intentionally or knowingly use a deadly weapon, to-wit: a firearm, and did then and there cause bodily injury to Juan Mauricio-Gonzalez by shooting the said Juan Mauricio-Gonzalez with said firearm, then you will find the Defendant guilty of the offense of aggravated assault.

In Morales v. State, the trial court properly limited the abstract portion of the charge but failed to limit the application paragraph. 853 S.W.2d 583, 584 (Tex. Crim. App. 1993). In that case, the Texas Court of Criminal Appeals concluded that the charge was correct "because the application paragraph tracks the statute and the culpable mental state is properly limited to result [in the definitional paragraph]." Id. at 585. Citing Morales, one commentator has analyzed this reasoning as follows:

Although not blessed by logic, the courts appear to take the position that if either the definitional paragraph or the application paragraph is appropriately restrictive that is close enough for government work. If the definition paragraph is correct, the courts presume the jury is guided by it, while if the application paragraph is correct, it provides the needed guidance. The jury is believed correctly to apply the law that the court misstated.

43 George E. Dix and Robert O. Dawson, 43 Texas Practice: Criminal Practice and Procedure. 36.15 (2001). The analysis in Morales, however, appears inconsistent with other opinions that state that in a charge for a result-oriented offense, "language that defines a culpable mental state with respect to conduct adds nothing since the culpable mental state does not apply to the conduct, and it allows the jury to do that which the law does not - find the accused guilty of aggravated assault based only on his conduct, rather than on intending or knowing the prohibited result." Banks v. State, 819 S.W.2d 676, 680 (Tex. App.--San Antonio 1991, pet. ref'd) (quoting Sneed v. State, 803 S.W.2d 833, 835 (Tex. App.--Dallas 1991, pets. ref'd)). In a result-oriented offense, all references to conduct should be deleted from the charge. Sneed, 803 S.W.2d at 836.

Assuming a proper abstract paragraph generally permits the court to presume that the jury was guided by the abstract portion of the charge as opposed to the erroneous application portion, this general rule should not apply when the prosecutor emphasizes the erroneous application of the law during closing argument, as the prosecutor did in this case. Under these circumstances, applying the intent element to conduct, as opposed to result, should be considered error. Because the jury charge in this case was erroneous with regard to the inclusion of the "knowing" mental state, we do not rest our decision on whether the application paragraph was erroneous. We simply note the inconsistency in the law regarding whether an application paragraph that defines a culpable mental state with respect to conduct for a result-oriented offense is erroneous.

C. Egregious Harm

Because Brown did not object to the charge, he must show egregious harm. As previously noted, egregious harm includes errors that make the case for guilt or punishment clearly and substantially more compelling. Saunders, 817 S.W.2d at 692. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Hutch, 922 S.W.2d at 171.

During closing argument, the prosecutor emphasized the knowing definition as follows:

Paragraph three goes on to tell you that a person acts intentionally or with intent with respect to his conduct when it is his conscious objective or desire to cause the result, meaning he did what he intended to do. Also goes on to tell you and give you a definition for knowingly, and it says a person acts knowingly or with knowledge with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Now, if I take this firearm and point it at an individual and start shooting, am I reasonably certain that that individual is going to be hit with one of the bullets? Of course you are. Okay. I mean, it is just again common sense.

In addition, throughout his argument, the prosecutor repeatedly emphasized both mental states. At one point in reviewing paragraph four, the prosecutor stated, "It tells you if you find from the evidence beyond a reasonable doubt the defendant, Coy Brown, Jr., on or about the 10th day of April, 2000, in Edwards County did then and there intentionally or knowingly use a deadly weapon...." Applying the charge to the facts, the prosecutor stated, "We know it occurred on April 10th, 2000 here in Edwards County, Texas, that he either intentionally or knowingly or both, one or the other or both, used a deadly weapon." After defense counsel's closing argument, the State in summarizing the evidence states, "He intentionally or knowingly or both shot and hit Juan Gonzalez."

In addition to the prosecutor's emphasis of the knowing mental state, we also note that the term "knowingly" was a handwritten insert to the typewritten application paragraph. Since the remainder of the jury charge was typed, we cannot know whether the jury gave the term special attention because it was handwritten.

The prosecutor also emphasized the erroneous application of the law to the facts by stating:

We know Coy Brown did the shooting. We know it occurred on April 10th, 2000 here in Edwards County, Texas, that he either intentionally or knowingly or both, one or the other or both, used a deadly weapon. We know that the firearm is a deadly weapon, and that he did cause bodily injury to Juan Mauricio Gonzalez, because if you go back, look at the definition of bodily injury, it just means pain. Again, anybody in here going to take a bullet in the buttock to see whether or not it causes pain? Of course not. We know it does. Those are the elements. You now have enough evidence to convict him of aggravated assault.

After defense counsel's argument, the prosecutor reiterated:

I ask you find the defendant Coy Brown guilty of aggravated assault, because he shot a man in the back.

The entire focus of the case was on Brown's mental state. Even Brown's self-defense theory hinged on his mental state because it required the jury to accept his testimony that he reasonably believed deadly force was immediately necessary.

The State contends that Brown suffered no egregious harm given the overwhelming evidence of Brown's guilt. We agree that the evidence overwhelmingly establishes that Brown shot Gonzalez; however, we disagree that the evidence overwhelmingly establishes that Brown had the conscious objective or desire to cause Gonzalez bodily injury. Based on the evidence presented, the jury could have believed that causing Gonzalez bodily injury was not Brown's conscious objective or desire but that Brown was clearly aware that his conduct was reasonably certain to cause bodily injury. By enabling the jury to find Brown guilty of knowingly causing the result as opposed to intentionally causing the result, the error made the case for guilt clearly and substantially more compelling, thereby resulting in egregious harm. Saunders, 817 S.W.2d at 692.

Conclusion

Having reviewed the entire jury charge, the state of the evidence, the arguments of counsel, and the nature of Brown's defense, we conclude that error in the jury charge resulted in egregious harm. The judgment of the trial court is reversed, and the cause is remanded to the trial court for a new trial.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

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